23CA1530 Parental Resp Conc RNM 07-18-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA1530
Pueblo County District Court No. 19DR30041
Honorable Kimberly Jo Karn, Judge
In re the Parental Responsibilities Concerning R.N.M., a Child,
and Concerning Brianne Bennett Perkins,
Appellee,
and
Royce Nicholas Martinez,
Appellant.
JUDGMENT AFFIRMED
Division VII
Opinion by JUDGE RICHMAN*
Gomez and Kuhn, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 18, 2024
No Appearance for Appellee
Mark Anthony Law, Mark Anthony Barrionuevo, Colorado Springs, Colorado,
for Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2023.
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¶ 1 In this proceeding involving Royce Nicholas Martinez (father)
and Brianne Bennett Perkins (mother), father appeals the district
court’s order granting mother’s motion to modify parenting time.
We affirm.
I. Background
¶ 2 The parties, who never married, have one child, R.N.M., born
in 2018. As part of the 2019 order establishing the allocation of
parental responsibilities between father and mother, the district
court ordered that mother would have sole decision-making
authority for any major decisions regarding education, medical
care, and religion. The court also ordered a step-up parenting plan
that ended with 50/50 parenting time.
¶ 3 In 2022, father moved to modify decision-making
responsibility. The court appointed a child and family investigator
(CFI), who filed a report. The report stated that the child — who
“likes to dress as a girl sometimes even though he plays with trucks
and dolls and identifies as a boy” — does not receive appropriate
support from father, who “only wants to see the child act as a
‘typical boy.’” According to the report, the child “appeared guarded
and tense” with father at father’s home, and father got tense when
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the child wore a tutu and boa during a visit to the CFI’s office. The
CFI recommended that decision-making continue with mother and
that father’s parenting time be limited from a 2-2-3 plan to 2 days
per week during specific times, noting that father’s behavior caused
the child to have “an emotional problem.”
¶ 4 After the CFI filed her report, father withdrew his motion to
modify decision-making and mother filed her own motion to modify
parenting time. The CFI then filed a two-page addendum to her
report, reiterating the conclusion from her initial report that father
does “not allow[] [the child] to be himself and wear . . . feminine
attire or play with or have a doll while in father’s presence.” Similar
to the report, the addendum stated that this caused the child
“emotional psychological distress.” This time, the CFI
recommended that father’s parenting time be further restricted to
five hours during one day per week with no overnight visits.
¶ 5 In 2023, after a hearing on mother’s motion, the district court
modified father’s parenting time, in part according to the CFI’s
report recommendations, limiting parenting time to five hours on
Fridays and eight hours on Saturdays.
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II. Applicable Law and Standard of Review
¶ 6 The district court may appoint a CFI to investigate, report, and
make recommendations in proceedings involving the allocation of
parental responsibilities, taking into account the child’s best
interests under section 14-10-124, C.R.S. 2023. § 14-10-116.5(1)-
(2), C.R.S. 2023. The CFI in this case was governed by Chief
Justice Directive 04-08, Directive Concerning Court Appointments
of Child and Family Investigators Pursuant to Section 14-10-116.5,
C.R.S. (amended Nov. 8, 2021) (CJD 04-08), which addressed the
appointment, payment, training, and duties of the CFI, as well as
the duties and responsibilities of the court relative to an
investigation.
¶ 7 A court may modify parenting time when the modification
serves the child’s best interests. § 14-10-129(1)(a)(I), C.R.S. 2023;
see In re Parental Responsibilities Concerning S.Z.S., 2022 COA 105,
¶ 14; see also § 14-10-124(1.5)(a). But the court may not impose
restrictions on parenting time unless it finds that the parenting
time would endanger the child’s physical health or significantly
impair the child’s emotional development and enumerates the
findings supporting the restriction. § 14-10-124(1.5)(a).
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¶ 8 The district court’s discretion in the area of parenting time is
broad, and we exercise every presumption in favor of upholding its
decision. S.Z.S., ¶ 13. We will not disturb the court’s ruling unless
it is manifestly arbitrary, unfair, or unreasonable, or based on a
misapplication of the law. In re Marriage of Gromicko, 2017 CO 1,
¶ 18. We therefore will affirm the order when evidence supports it.
In re Marriage of Hatton, 160 P.3d 326, 330 (Colo. App. 2007).
III. CFI’s Testimony and Report
¶ 9 Father contends that the district court should have struck the
CFI’s report and testimony because the CFI (1) was biased against
him; (2) acted beyond her court appointment; and (3) improperly
appeared virtually for the hearing in violation of C.R.C.P. 43. We
are not convinced.
A. Bias
¶ 10 Father contends that the CFI did not “assure both fairness
and the appearance of fairness” pursuant to CJD 04-08.
Specifically, father asserts his hearing testimony established that
the CFI
• falsely assured him that he would get 50/50 parenting
time, so he came to the hearing unprepared;
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• did not include photos father took of the child’s bruises
allegedly caused by mother;
• recommended therapy although father had already gone
to therapy;
• erroneously reported that father pinched and hit the
child; and
• did not include mother’s shortcomings in the report.
As we describe below, we conclude that the record contains no
grounds compelling the district court to reject the opinions and
testimony of the CFI.
¶ 11 The district court — which, in its discretion, partially adopted
the CFI’s recommendations over father’s objections — found that
the CFI’s report and addendum showed that father did not “support
his child’s personal choices and . . . create[d] an environment where
[the child] does not feel like he can be himself.” See In re Marriage
of McNamara, 962 P.2d 330, 333-34 (Colo. App. 1998) (district
court’s responsibility to judge credibility of witnesses and resolve
conflicting evidence as to child’s best interests). The record
supports this conclusion.
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¶ 12 The CFI’s report shows that the CFI approached her duties
impartially. For instance, pursuant to CJD 04-08, Standard 8, the
CFI interviewed both mother and father at their homes and
observed each parent’s interactions with the child. Similarly, the
report shows that the CFI considered the child’s disclosure that he
was pinched and hit by father, but ultimately concluded that no
child abuse was taking place. Finally, the report shows that the
CFI considered the child’s best interests factors pursuant to section
14-10-124(1.5)(a)(I)-(XI) before concluding that, although both
parents “love their child,” it is in the child’s best interests for
mother to “continue to have decision making and that [father’s]
parenting time be changed.”
¶ 13 Moreover, because father provided no transcript of his
testimony or the CFI’s, we must presume that the district court’s
factual findings were supported by the evidence.
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Although father contends that the rest of the transcript was not
available, there is no indication of this in the existing record.
Furthermore, father could have used the procedure in C.A.R. 10(e)
to offer a statement of the evidence for the parts of the hearing
where no transcript was available.
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the party asserting error in a judgment to present a record that
discloses that error, because a judgment is presumed to be correct
until the contrary affirmatively appears).
¶ 14 Even without a complete transcript, there is evidence that the
CFI approached her duties impartially and that she formulated her
recommendations based on the child’s best interests. Therefore, we
perceive no abuse of discretion in the court’s reliance on her
recommendations. See In re Parental Responsibilities Concerning
M.J.K., 200 P.3d 1106, 1114 (Colo. App. 2008), disagreed with on
other grounds by In re D.I.S., 249 P.3d 775 (Colo. 2011).
B. CFI’s Court Appointment
¶ 15 Father argues that the CFI exceeded her court appointment
when she (1) commented not only on decision-making
responsibilities, but also on parenting time for the child; and (2)
filed an unsolicited addendum to her report, prejudicing him. We
perceive no basis for reversal.
¶ 16 As an initial matter, in the absence of a complete transcript of
the hearing, we cannot determine whether father preserved this
issue. See In re Marriage of Ensminger, 209 P.3d 1163, 1167 (Colo.
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App. 2008) (issues not presented before district court may not be
raised for the first time on appeal).
¶ 17 Nevertheless, even assuming the issue was preserved, we
perceive no error. The district court may make or modify an order
granting or denying parenting time rights whenever such order or
modification would serve the child’s best interests. See § 14-10-
129(1)(a)(I). In making this determination, a court may adopt a
CFI’s findings and recommendations, but it is not required to do so.
See In re Parental Responsibilities Concerning B.J., 242 P.3d 1128,
1133 (Colo. 2010). Ultimately, it is the court’s role to weigh the
CFI’s recommendations pursuant to the appropriate standards to
determine whether they are in the child’s best interests. See id.;
see also In re Custody of C.J.S., 37 P.3d 479, 483 (Colo. App. 2001)
(no abuse of discretion in the district court’s approval of the special
advocate’s recommendations where those recommendations were
based upon the best interests standard).
¶ 18 Here, the CFI concluded, in both her report and her
addendum, that limiting father’s parenting time was in the child’s
best interest. The court then, explicitly considering all of the best
interest factors listed in section 14-10-124(1.5)(a), found that the
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CFI’s recommendations concerning father’s parenting time were in
the child’s best interests. The court also found that “continuing
with Father’s parenting time would significantly impair the child’s
emotional development and could even impact his physical health
(self harming behavior).” Because the court has discretion in
adopting the CFI’s recommendations, we perceive no reversible
error in the court’s adoption of new parenting time
recommendations in the child’s best interests.
¶ 19 Moreover, although father generally asserts that the CFI’s
addendum prejudiced him, the record shows that the district court
adopted the CFI’s recommendations from her initial report, and not
from her addendum (which would have been more restrictive of
father’s parenting time).
¶ 20 Given this evidence confirming that the district court was
guided by the child’s best interests when it adopted the CFI’s
recommendations, we will not disturb the court’s parenting time
determination.
C. Virtual Appearance
¶ 21 Father contends that the district court erred by allowing the
CFI to testify virtually without a properly filed motion pursuant to
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C.R.C.P. 43(i)(1). Father did not preserve this argument for our
review. At the hearing, father’s counsel objected to the court
considering the CFI’s report and addendum without allowing him to
cross-examine her. The court then, sua sponte, requested that the
CFI be made available to testify virtually. The record does not
include a further objection by father, and father does not claim it
appears in the unproduced transcript. This argument, unpresented
at the hearing, cannot be raised for the first time before this court.
See Ensminger, 209 P.3d at1167; see Valentine v. Mountain States
Mut. Cas. Co., 252 P.3d 1182, 1188 n.5 (Colo. App. 2011) (“A party’s
mere opposition to its adversary’s request . . . does not preserve all
potential avenues for relief on appeal. We review only the specific
arguments a party pursued before the district court.”).
IV. Alleged District Court Bias
¶ 22 Father contends that the district court erred by advocating for
mother because she was self-represented, prejudicing him and
requiring reversal. We disagree.
A. Relevant Law and Standard of Review
¶ 23 The Code of Judicial Conduct requires disqualification of a
judge when the judge’s involvement with a case might create the
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appearance of impropriety or when the judge has a personal bias
concerning a party. C.J.C. 2.11(A); see also People in Interest of
A.G., 262 P.3d 646, 650 (Colo. 2011). C.R.C.P. 97 also requires
disqualification of a judge who is “interested or prejudiced” in an
action. See A.G., 262 P.3d at 651.
¶ 24 A judge who is disqualified based on an appearance of
impropriety may be able to act impartially, but the judge is
disqualified nonetheless because a reasonable observer might have
doubts about the judge’s impartiality. Id. at 650. In contrast to an
appearance of impropriety, actual bias focuses on the subjective
motivations of the judge. Id. at 651. Disqualification based on an
actual bias is designed to ensure that litigants receive a fair,
impartial trial. Id.
¶ 25 The record must clearly demonstrate the alleged bias. See
People in Interest of A.P., 2022 CO 24, ¶ 30. To disqualify a judge
for actual bias, a party must show that the judge has “a substantial
bent of mind,” id. (citation omitted), that “in all probability will
prevent [the judge] from dealing fairly with a party,” A.G., 262 P.3d
at 650 (citation omitted). The United States Supreme Court has
clarified that a judge’s “remarks during the course of a trial that are
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critical or disapproving of, or even hostile to, counsel, the parties, or
their cases, ordinarily do not support a bias or partiality challenge.”
Liteky v. United States, 510 U.S. 540, 555 (1994); see also A.P.,
¶ 30. Adverse legal rulings are also unlikely to provide grounds for
a bias claim. See A.P., ¶ 30.
¶ 26 Because disqualification based on actual bias is designed to
ensure that litigants receive a fair, impartial trial, there is no
provision for waiving it. A.G., 262 P.3d at 651. Thus, claims for
disqualification based on actual bias may be considered on appeal
even when they were not raised in the district court. See Bocian v.
Owners Ins. Co., 2020 COA 98, ¶ 52; see also People v. Jennings,
2021 COA 112, ¶ 21. We review a claim for disqualification based
on actual bias de novo. Jennings, ¶ 27.
B. Analysis
¶ 27 Father did not seek to disqualify the judge based on an
appearance of impropriety pursuant to C.R.C.P. 97. He is therefore
limited to seeking review for disqualification for actual bias. See
A.G., 262 P.3d at 651.
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¶ 28 The record does not support allegations of actual bias. For
instance, father argues that the following questions from the judge
to mother demonstrated bias:
• “So are you requesting the Court to review that CFI
investigation results?”
• “So, you said [the child] prefers to be called by a female
name?”
• “[I]t looks like you’re requesting that [father] have [the
child] on Thursday from [three] to [eight] . . . .”
Father does not explain, nor can we ascertain, how these questions
— which seek clarification from a pro se party — clearly
demonstrate bias toward him. See Cornelius v. River Ridge Ranch
Landowners Ass’n, 202 P.3d 564, 572 (Colo. 2009) (court may take
into account that party is pro se). Similarly, father does not explain
how the judge clearly demonstrated bias when she requested that
mother explain her imprecise testimony that the child was
“displaying certain like wants that [mother wasn’t] so sure to
involve [father] in due to how [the child] was acting towards talking
about it.”
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¶ 29 Finally, father asserts that the judge’s evidentiary rulings —
including rulings with regard to evidence allegedly not in the record
and various rulings on his counsel’s objections — evince bias
against him. However, a judge’s rulings, even when “erroneous,
numerous and continuous, are not sufficient in themselves to show
bias or prejudice.” A.P., ¶ 32 (quoting Schupper v. People, 157 P.3d
516, 521 n.5 (Colo. 2007)).
¶ 30 In sum, our review of the record does not reveal that the judge
had a “substantial bent of mind” that would probably prevent the
judge from dealing fairly with a party, as required to establish
actual bias. See id. at ¶ 37.
V. Disposition
¶ 31 The judgment is affirmed.
JUDGE GOMEZ and JUDGE KUHN concur.
