[00:00:05] Speaker 02:
We'll turn next to 24-1188, KA versus Barnes.

[00:00:51] Speaker 02:
Ms.

[00:00:51] Speaker 02:
Brown.

[00:00:57] Speaker 05:
Thank you, Your Honor, and may it please the court.

[00:00:58] Speaker 05:
I'm Christy Brown with my co-counsel, Suzanne Tahiri.

[00:01:01] Speaker 05:
We represent the appellant, KA.

[00:01:03] Speaker 05:
Parenting is a fundamental right.

[00:01:05] Speaker 05:
When it comes to a state getting involved in custody and termination of parental rights, which all states do, the state can make its cake.

[00:01:12] Speaker 05:
But the role of the federal courts is to ensure that the baking ingredients are constitutional.

[00:01:16] Speaker 05:
K.A.'

[00:01:16] Speaker 05:
's case is about the case of a stay-at-home mother who dared to believe her daughters and accused her ex-husband of sexually abusing them, claims also reported by the girls' school and dance studio.

[00:01:27] Speaker 05:
In return, permanent termination of her parental rights is what she received.

[00:01:30] Speaker 05:
The department sought her daughter's removal from anyone who dared report abuse.

[00:01:35] Speaker 05:
including their school and their dance studio.

[00:01:37] Speaker 05:
The department conspired to protect the father rather than investigate what was happening to the children.

[00:01:43] Speaker 05:
And after repeated accusations of abuse, the department refused to continue to investigate and instead worked to remove the children from those who believed them.

[00:01:50] Speaker 05:
The policy, parental alienation, that was aggressively used by the defendants to remove my client's parental rights was a state department policy, not a state law, used by county departments across the state.

[00:02:02] Speaker 05:
Colorado now bans these kind of actions by Department of Social Services and recognize the policy as so out of bounds and unconstitutional in 2023 that it came in to stop the policy once it got exposed, but none of this happened in time to stop them from violating our client's fundamental rights.

[00:02:17] Speaker 02:
You're addressing the merits, and your problem is procedural.

[00:02:22] Speaker ?:
There's nothing a federal court, except the U.S.

[00:02:25] Speaker 02:
Supreme Court, can do to set aside the termination of parental rights.

[00:02:29] Speaker 02:
Do you agree with that?

[00:02:30] Speaker 02:
Isn't that the Rucker-Feldman doctrine?

[00:02:33] Speaker 05:
Justice Hart, I actually don't agree.

[00:02:35] Speaker 05:
I don't think Riker-Foldman applies in this case, specifically because we're not asking the court, we're not saying the state court erred in its decision.

[00:02:44] Speaker 05:
Instead, we're saying the procedure that the department used to pursue the stripping of her parental rights violated procedural due process.

[00:02:52] Speaker 02:
remedy is to seek overturning that termination and that's a state court judgment and we can't review it.

[00:03:01] Speaker 02:
Roker itself was a challenge to

[00:03:04] Speaker 02:
the procedure of the state court, as I recall, not from having been around then, but from reading the case.

[00:03:12] Speaker 02:
And that's the same posture here.

[00:03:15] Speaker 02:
You can't argue that the violation of constitutional rights was in how the state court reached its decision.

[00:03:24] Speaker 02:
You're stuck with that decision.

[00:03:26] Speaker 05:
Sure, and Justice Hart, we're actually not arguing that the state court erred in how it reached this decision.

[00:03:30] Speaker 05:
Instead, we're arguing that the department, the county and state department, how it pursued the termination of rights against our client was unconstitutional.

[00:03:38] Speaker 02:
We have to start in reviewing the issues before us.

[00:03:41] Speaker 02:
We have to start with the proposition that her parental rights have been terminated, and there's nothing we can do about that.

[00:03:50] Speaker 02:
Well, Your Honor, I would disagree and say that... How do you reconcile your disagreement with her fulfillment?

[00:03:57] Speaker 05:
Because, Your Honor, basically for Rooker-Pullman to apply, we would have to be arguing that the state court erred.

[00:04:04] Speaker 05:
And we're instead arguing that the state law behind it was unconstitutionally applied to our client.

[00:04:10] Speaker 05:
And so the process violated her procedural due process.

[00:04:14] Speaker 02:
you're having to argue that the state court erred in revoking her parental rights.

[00:04:20] Speaker 02:
And you can't do that in federal court.

[00:04:22] Speaker 02:
You could have appealed or sought cert from the Supreme Court, U.S.

[00:04:25] Speaker 02:
Supreme Court.

[00:04:26] Speaker 02:
But we can't set aside that termination.

[00:04:29] Speaker 02:
And once we have that termination, that moves

[00:04:33] Speaker 02:
almost all, maybe all of your other arguments, because they depend on the fact that she still has parental rights.

[00:04:41] Speaker 02:
If she has no parental rights, she can't challenge the statute, she can't challenge the statute of limitations.

[00:04:50] Speaker 05:
So Your Honor, the statute at issue actually that we cite, 193612, actually still does apply to parents even if they don't have

[00:04:59] Speaker 05:
parental rights at the time.

[00:05:00] Speaker 05:
What it actually does is allows parents whose rights have been terminated to appeal longer than three years after their rights were terminated.

[00:05:08] Speaker 05:
And we're arguing that law is unconstitutional in application because it does not apply to her right now.

[00:05:14] Speaker 05:
When a parent's rights are terminated based on the policy of parental alienation, that statute can't apply.

[00:05:20] Speaker 05:
Instead, the statute can apply when your rights are terminated for any other reason, when your children are in the custody of the state or if the other parent, the custodial parent dies.

[00:05:31] Speaker 05:
you can bring a case.

[00:05:32] Speaker 05:
But because her rights were terminated on parental alienation, which always means that there is another custodial parent, she does not have that exception that all other parents would have to bring an appeal of the termination of their rights on any other basis.

[00:05:45] Speaker 05:
And so that is why it's so key to this argument that parental alienation was an unconstitutional theory used against her by the state and county departments and why the procedural due process matters so much.

[00:05:57] Speaker 02:
There is a state decision.

[00:05:59] Speaker 02:
that she can't timely challenge the termination of her rights.

[00:06:04] Speaker 02:
Is that correct?

[00:06:05] Speaker 05:
I'm sorry, I didn't quite catch that.

[00:06:07] Speaker 02:
There is a state court decision that she can no longer challenge the revocation of her parental rights because she's out of time to do that.

[00:06:18] Speaker 02:
Is that right?

[00:06:19] Speaker 02:
Yes, Justice Harkin.

[00:06:21] Speaker 02:
That's a decision by the state court.

[00:06:23] Speaker 02:
And you want that overturned by challenging the constitutionality of the statute of limitations in the state.

[00:06:31] Speaker 02:
But what you have is a decision that she can no longer, by the state court, that she has had her parental rights terminated and there's no way she can get them back.

[00:06:43] Speaker 02:
That's what the state court has ruled.

[00:06:45] Speaker 05:
Is that right?

[00:06:45] Speaker 05:
Not exactly, Justice Hartz.

[00:06:46] Speaker 05:
I do not think they used this law to come to that decision.

[00:06:50] Speaker 05:
I think that's part of the error is that they don't think they can use this law.

[00:06:54] Speaker 05:
That's why we're asking for you to declare this law as unconstitutional because she would have a separate avenue to appeal the termination of her rights in state court if 169312 applied to her.

[00:07:03] Speaker 05:
Instead, the state court applied the appellate rule

[00:07:05] Speaker 05:
that gives her only 21 days from the termination of her rights to appeal, at which time she was in jail due to the defendant's actions, very wrongful actions against her as we detail in the briefs.

[00:07:14] Speaker 05:
So in fact, if this court found that the lack of applying 169312 to her was unconstitutional, she would have a different avenue to pursue the appeal in state court.

[00:07:25] Speaker 01:
What about the statute of limitations questions as to when she was on notice regarding the rights violation?

[00:07:33] Speaker 01:
I understand your argument to say, well, but we're looking at when the Colorado Supreme Court denied the view of the case as sort of the triggering event.

[00:07:41] Speaker 01:
There's law that says that may not be right.

[00:07:43] Speaker 01:
So can you help me understand, one, sort of when it's triggered that the clock starts to run on the statute of limitations and also, well, maybe I'll let you answer that before we talk about equitable tolling.

[00:07:55] Speaker 05:
Sure.

[00:07:56] Speaker 05:
Thank you, Judge Federico.

[00:07:57] Speaker 05:
And I will try and reserve three minutes at the end for a bottle.

[00:08:00] Speaker 05:
First of all, we think there are two specific reasons why the statute of limitations did not accrue at the time that she filed her case.

[00:08:06] Speaker 05:
First of all, it's true since Supreme Court cases, McDonough versus Smith and Thompson versus Clark of 2019 and 2022 cases.

[00:08:12] Speaker 05:
that showed when the government used a fabrication of evidence or malicious prosecution against someone in a 1983 action, their action didn't even accrue until the state court case ended.

[00:08:23] Speaker 05:
The Supreme Court used practical considerations and said, when the state is coming against you in court, you shouldn't then have to bring them in federal court.

[00:08:29] Speaker 05:
It is reasonable for the statute of limitations to accrue once your state case is over.

[00:08:33] Speaker 05:
And we believe, while those were criminal cases, this was a civil case, it's still similar when the state is going after you and faults

[00:08:39] Speaker 05:
evidence is being used, the same practical considerations would apply in 1983 action.

[00:08:43] Speaker 05:
That would allow her statute of limitations to accrue on September 7th, 2021.

[00:08:47] Speaker 05:
We filed on June 20th, 2023, or DNN case even closed until April of 2023.

[00:08:53] Speaker 05:
So there's a few dates which could apply there.

[00:08:56] Speaker 05:
And Judge Federica, the other statute of limitations argument is the ongoing violations doctrine.

[00:09:01] Speaker 05:
We would argue there's a prolonged violation of her rights because she still cannot see her children, her parental rights, a fundamental right.

[00:09:06] Speaker 05:
are still terminated until her daughter's reached the age of 18.

[00:09:10] Speaker 05:
And there are multiple cases, Haven Realty Corps, Heck v. Humphrey, Zenith Radio Corporation, which all speak to the ongoing violations, Doctor.

[00:09:17] Speaker 05:
But do they do so in this context?

[00:09:20] Speaker 05:
Your Honor, they're not specifically child custody cases, but some of them are 1983 actions, which we have here.

[00:09:25] Speaker 05:
And some of them all talk about the prolonged violation of fundamental constitutional rights, which is a similarity here.

[00:09:31] Speaker 01:
Right, so you also argued equitable tolling.

[00:09:33] Speaker 01:
My understanding from the briefing is that equitable tolling is something we see in a lot of habeas cases, but in this context, the Colorado Supreme Court has never recognized a case where equitable tolling would apply.

[00:09:46] Speaker 01:
Is that right?

[00:09:48] Speaker 05:
I think you may be right about the Colorado Supreme Court.

[00:09:51] Speaker 05:
However, the federal courts have recognized, including this court, that equitable tolling is appropriate specifically when the defendant actively misled the plaintiff, which happened here, and when the plaintiff was prevented from asserting their rights in some extraordinary way.

[00:10:04] Speaker 05:
And we would argue that's also present here.

[00:10:07] Speaker 05:
and specifically the prong of equitable tolling where defendants wrongfully prevented someone from timely filing.

[00:10:13] Speaker 05:
If you look at the record, we've detailed a lot of reasons for that, specifically that defendants sought to prevent our client's attorneys from accessing her record.

[00:10:21] Speaker 05:
My co-counsel was actually objected to getting her record during the time when she was in jail, and the defendants also specifically sought a gag order against her, which

[00:10:32] Speaker 05:
wouldn't even let her call a friend to help her get an attorney in court.

[00:10:36] Speaker 05:
So there are a lot of circumstances that we detail in the briefs that prevented her wrongfully from filings.

[00:10:42] Speaker 05:
We think that is a specific reason equitable tolling should apply.

[00:10:44] Speaker 05:
Our position would be the statute of limitations didn't begin to accrue.

[00:10:47] Speaker 05:
If this court disagrees, we would say equitable tolling should apply instead.

[00:10:53] Speaker 04:
Counsel, before you move on, can I just follow up with my colleague's question about the Rooker-Feldman doctrine?

[00:11:00] Speaker 04:
Are you taking the position that you are not asking us to set aside the state court decision?

[00:11:07] Speaker 05:
Just as I thank you, yes, that's the position we're taking.

[00:11:10] Speaker 05:
We are not asking you to set aside the state court decision.

[00:11:13] Speaker 05:
Instead, we're asking you to provide another avenue in state court for our client to appeal the termination of parental rights.

[00:11:20] Speaker 05:
If the statute 193612 were to apply to her, she would be allowed to appeal the termination of her rights, even though that 21-day time period has passed.

[00:11:30] Speaker 05:
And in fact, many parents in other circumstances are allowed to appeal on that statute well beyond the 21 days.

[00:11:36] Speaker 04:
Okay, help me understand then what you are specifically seeking.

[00:11:43] Speaker 05:
Yes, Your Honor.

[00:11:45] Speaker 04:
What's unconstitutional and what would get you an alternate remedy in state court?

[00:11:52] Speaker 05:
Thank you, Justice Side.

[00:11:53] Speaker 05:
We would argue specifically that a combination of saying the 21-day appeal time period

[00:11:59] Speaker 04:
And the 21 day appeal period is unconstitutional.

[00:12:05] Speaker 05:
Because 193612 doesn't apply to her.

[00:12:09] Speaker 05:
And most parents are given the exception of 193612.

[00:12:11] Speaker 05:
The only way this would ever apply to her is if her ex-husband were to pass away.

[00:12:18] Speaker 05:
Otherwise, when parents' rights are taken away for other reasons, say drug abuse, physical abuse, actual neglect of a child, they can still appeal to get their children back three years or more after the fact.

[00:12:30] Speaker 05:
But because her rights were terminated on the basis of a debunked and unconstitutional theory that the state of Colorado actually now bans, she cannot use this remedy to appeal in state court.

[00:12:42] Speaker 04:
Okay, so, but I guess back to what specific

[00:12:47] Speaker 04:
ruling would you want from us that the entire system is unconstitutional?

[00:12:54] Speaker 04:
What specifically do you want us to say is unconstitutional?

[00:12:58] Speaker 05:
Yes, just as I, I think it could be more narrow than that.

[00:13:00] Speaker 05:
I think specifically finding that when a parent's rights were terminated based on the debunked and unconstitutional theory of parental alienation, this remedy

[00:13:08] Speaker 05:
of 19 through 612 should be applied to them.

[00:13:11] Speaker 05:
And they should be allowed to meet the same standards.

[00:13:14] Speaker 05:
The child has to also want to reconcile with the parent.

[00:13:16] Speaker 05:
There's a trial period.

[00:13:18] Speaker 05:
There are some safeguards in place.

[00:13:20] Speaker 05:
But that a parent whose rights were taken away based on parental termination should also be allowed to use this remedy past the three year period since their rights were terminated on a constitutional basis.

[00:13:30] Speaker 01:
Counsel, how do I square your response that you're not asking us to weigh in on the parental rights termination with your prayer for relief?

[00:13:37] Speaker 01:
You're asking us to reverse and remand this back to the district court, but you mean your prayer for relief, specifically number one says reverse the termination of plaintiff's parental rights and order a new hearing that plaintiff may appeal.

[00:13:51] Speaker 01:
So how do I square that with your response to Judge Eyde?

[00:13:55] Speaker 05:
Thank you, Judge Federico.

[00:13:56] Speaker 05:
We asked for multiple things in our prayer for relief.

[00:13:58] Speaker 05:
And I do believe that if this court were to agree that the theory of parental alienation was unconstitutional and a lack of procedural due process, the state legislature

[00:14:06] Speaker 05:
in its legislative intent, actually wrote that there's very little evidence ever used in cases, which violates Santowski versus Kraber, which says clearing convincing standard of evidence has to be used to terminate someone's parental rights.

[00:14:18] Speaker 05:
So if you found that the theory of parental alienation was unconstitutional, that wouldn't directly overturn the state court decision, but in effect, it would make her termination unlawful.

[00:14:26] Speaker 02:
Is there any reason why, after these adverse rulings by the state courts,

[00:14:32] Speaker 02:
You could not have sought a petition for certiorari from the US Supreme Court to say that what happened in the state court violated your constitutional rights.

[00:14:43] Speaker 05:
Judge Hartz, I believe we thought going this route was the most beneficial to our clients.

[00:14:49] Speaker 05:
The defendants multiple times threatened her attorneys, had different attorneys she had, threatened them so much that they actually withdrew from her case.

[00:14:57] Speaker 05:
So we're pro bono working on her case.

[00:15:00] Speaker 05:
And we believe that this was the best avenue.

[00:15:04] Speaker 04:
Can I just jump in there?

[00:15:05] Speaker 04:
I'm sorry, you have little time, so can you address your 11th Amendment argument?

[00:15:11] Speaker 05:
Yes, just a sec.

[00:15:14] Speaker 05:
We believe that we specifically have an exception to the 11th Amendment immunity because we are suing a state official, Director Barnes,

[00:15:21] Speaker 05:
and an official for the county, Director Dawsey, who, according to the county, stands as an arm of the state in their official capacities.

[00:15:28] Speaker 05:
As an exception, as you know, to the 11th Amendment immunity is when we're suing state officials in their official capacity and seeking prospective injunctive relief and declaratory relief under Ex parte v. Young.

[00:15:38] Speaker 05:
And so because her rights are still being violated right now, we're not seeking to remedy a past situation, but instead to stop the ongoing prolonged violation of her rights through injunctive and declaratory relief.

[00:15:49] Speaker 05:
if she were allowed to appeal under 16.3912, she would be able to fix her situation.

[00:15:59] Speaker 05:
Also, if the theory of parental alienation were considered unconstitutional, that would also be a declaratory remedy.

[00:16:05] Speaker 02:
Thank you.

[00:16:07] Speaker 05:
Thank you, Your Honor.

[00:16:17] Speaker 02:
Mr. Carty, I understand you want to split time, which almost never works well, but are you dividing that up by what issues?

[00:16:25] Speaker 02:
We are.

[00:16:26] Speaker 02:
We are dividing it up by issues.

[00:16:28] Speaker 02:
So should we give you ten minutes, five minutes, seven and a half minutes?

[00:16:33] Speaker 00:
I'm shooting for ten.

[00:16:34] Speaker 00:
Okay.

[00:16:45] Speaker 00:
May it please the court, Deputy County Attorney Ryder Mott on behalf of defendants, appellees Arapahoe County, the Arapahoe County Department of Human Services, and Michelle Dawsey.

[00:16:54] Speaker 00:
With me at council table is Jennifer Cardy of the Colorado Attorney General's Office who represents Michelle Barnes.

[00:17:01] Speaker 00:
This court should affirm the district court's dismissal of K.A.'

[00:17:04] Speaker 00:
's complaint for four primary reasons.

[00:17:07] Speaker 00:
First, all of plaintiff's claims are barred by 11th Amendment immunity where only official capacity claims have been asserted.

[00:17:14] Speaker 00:
Second, on statute of limitations grounds, where plaintiff failed to timely assert her claims and has failed to meet the requirements for entitlement to equitable tolling.

[00:17:22] Speaker 00:
Third, on Rucker-Feldman grounds, where all of plaintiff's injuries stem from state court orders, and she asked the federal court to overturn those orders and restore her parental rights.

[00:17:32] Speaker 00:
And fourth, on the issue of standing, which my colleague, Ms.

[00:17:35] Speaker 00:
Carty, will address.

[00:17:37] Speaker 00:
I'd like to start by discussing the issue of 11th Amendment immunity.

[00:17:40] Speaker 00:
Plaintiff has never meaningfully responded to this argument.

[00:17:43] Speaker 00:
Instead, both before the district court and again in her opening brief and in her reply brief, plaintiff argued qualified immunity, a defense that was never raised by the defendants who are sued only in their official capacity.

[00:17:56] Speaker 00:
Thus plaintiff has not provided any basis why either the Arapahoe County Department of Human Services or the Colorado Department of Human Services are not arms of the state and not entitled to 11th Amendment immunity and is plaintiff's burden to establish jurisdiction.

[00:18:11] Speaker 00:
The only argument plaintiff makes for avoiding 11th Amendment immunity is to argue the immunity would not bar her declaratory or injunctive claims.

[00:18:19] Speaker 00:
The exception to 11th Amendment immunity for injunctive relief under ex parte young, however, only applies to claims for prospective relief, not to redress past harms.

[00:18:30] Speaker 00:
Here where plaintiff admits in her complaint at paragraph 111 and paragraph 115 of her proposed amended complaint that her DNN case is closed and final,

[00:18:40] Speaker 00:
She cannot establish any likelihood of continuing harm or ongoing actions on behalf of the department or the state.

[00:18:47] Speaker 02:
If she seeks to declare declarations that certain state laws are unconstitutional, does she not?

[00:18:53] Speaker 00:
Well, I'd like to address that.

[00:18:54] Speaker 00:
That's a good point, Your Honor.

[00:18:57] Speaker 00:
The one state law that she seeks to challenge is a statute.

[00:19:01] Speaker 00:
It's 193-612 of the Colorado revised statutes.

[00:19:06] Speaker 00:
And that statute specifically has no applicability to plaintiff.

[00:19:10] Speaker 00:
because that statute only addresses a situation.

[00:19:15] Speaker 00:
It was a statute written by the Colorado legislature to address situations where children linger in the custody of the Department of Human Services after parental rights are terminated.

[00:19:29] Speaker 00:
It has no application to the situation plaintiff is in where a different, the other spouse is given custody of the children.

[00:19:39] Speaker 00:
I understand that's not an 11th Amendment argument.

[00:19:41] Speaker 02:
So to the extent she seeks declarations that certain laws or practices are unconstitutional going forward, there's not an 11th Amendment problem with that, is there?

[00:19:52] Speaker 00:
There's not an 11th Amendment problem.

[00:19:53] Speaker 00:
There's another problem, and the problem is that that statute has no application to her.

[00:19:58] Speaker 00:
And what she asked this court to do is to rewrite the statute and create a new remedy

[00:20:03] Speaker 00:
that would apply to situations where custody of the children are given to another parent or a child is adopted in those circumstances to apply this remedy, which under state law only applies when children remain in the custody of human services and linger in the custody of human services after termination hearing.

[00:20:27] Speaker 00:
And so again, this court doesn't have the authority to create new remedies under Colorado law.

[00:20:33] Speaker 00:
or to rewrite the law as plaintiff would like it to be.

[00:20:38] Speaker 00:
Simply seeking a declaration that the statute which has no application to her should apply to her really isn't the role of this court.

[00:20:48] Speaker 00:
And so I don't think there's a basis for that.

[00:20:55] Speaker 00:
So with that in mind, because the defendants are entitled to 11th Amendment immunity,

[00:21:02] Speaker 00:
I do not believe this court has to decide the issue of statute of limitations, but if the court does, the statute of limitations too would bar plaintiff's claims.

[00:21:10] Speaker 00:
There's no dispute the plaintiff did not timely file her claims within the two year statute of limitations, which would have started to accrue with respect to her familial association claims when the department took custody of her children on February 22nd, 2019, or no later than August 25th, 2020 when the department terminated her parental rights.

[00:21:29] Speaker 00:
The same is true with respect to her challenges with respect to the protective order and the subsequent contempt citations which would have started to accrue in May 2020 when the first motion for contempt was filed.

[00:21:44] Speaker 00:
Here plaintiff waited until June 20th, 2023 to file her complaint well outside the two year statute of limitations for asserting claims in Colorado, Section 1983 claims in Colorado.

[00:21:57] Speaker 00:
Thus, given that plaintiff didn't timely file her claims, her statute of limitation defense turns on the question of whether she's entitled to equitable tolling.

[00:22:05] Speaker 00:
It's important to note, however, that a district court's refusal to apply equitable tolling is reviewed under an abuse of discretion standard, not under the more forgiving de novo standard.

[00:22:16] Speaker 00:
Here there's ample evidence in the record the district court pointed to that shows that plaintiff was aware of her claims and failed to act diligently in bringing them, supporting the district court's decision.

[00:22:27] Speaker 00:
Equitable tolling, which is determined in reference to state law, is allowed in two circumstances in Colorado.

[00:22:35] Speaker 00:
First, in cases of truly extraordinary circumstances, and the second is where defendants prevented plaintiff from filing her case.

[00:22:43] Speaker 00:
Plaintiff cannot satisfy either of those tests.

[00:22:45] Speaker 00:
With respect to the extraordinary circumstances test, plaintiff claimed she was incarcerated and lacked access to her records during COVID, meaning she could not timely file her lawsuit.

[00:22:57] Speaker 00:
But despite her incarceration, during this same period of time, the record shows that her attorneys were bringing similar constitutional claims and litigating them in state court, foreclosing her ability to say she could not have brought these claims.

[00:23:10] Speaker 00:
The first example of this, which was relied upon by the district court, was plaintiff's attorney, the same attorney who's representing her in this action, filed a habeas petition on May 20th, 2021, raising similar first, eighth, and 14th amendment issues, the same constitutional,

[00:23:26] Speaker 00:
claims she's asserting in this case.

[00:23:28] Speaker 00:
So both plaintiff and plaintiff's counsel were aware of these constitutional claims and still failed to file suit, waiting more than two years after filing the habeas petition to bring this action.

[00:23:38] Speaker 01:
But doesn't plaintiff also allege that she was effectively denied access to counsel on this issue and that she was denied access to the record of the proceeding that would be needed for her to file a complaint?

[00:23:50] Speaker 00:
Well, I think that that's

[00:23:51] Speaker 00:
belied by the record, again, because her attorney was raising these same issues and these same constitutional claims during this time period through the habeas petition.

[00:24:02] Speaker 00:
The other example of that is found in the Court of Appeals decision on plaintiffs challenge to her third and fourth contempt citations.

[00:24:10] Speaker 00:
And in that decision on page 238 and 239 of appellate's appendix, the Colorado Court of Appeals notes that in September 2020,

[00:24:20] Speaker 00:
Plaintiff's Council filed Rule 59 motions challenging the constitutionality of the protective order, which is more evidence that they were aware of these issues.

[00:24:30] Speaker 00:
And the Court of Appeals in that same opinion on page 248 of the Appellate Appendix made a specific finding that K.A.

[00:24:37] Speaker 00:
was aware on December 20th because she discussed with her friends the possibility of hiring a First Amendment expert and appealing the protection orders.

[00:24:44] Speaker 00:
She just did not seek that remedy.

[00:24:47] Speaker 00:
So these documents in the record show that both Plaintiff and Plaintiff's Council

[00:24:50] Speaker 00:
were aware of these issues and failed to timely act.

[00:24:53] Speaker 00:
Is that discussion with Friends the one that she was held in contempt for engaging in?

[00:24:58] Speaker 00:
I am not positive on that, Your Honor.

[00:25:02] Speaker 00:
I do know, though, even more crucially, I think, to this claim about extraordinary circumstances, however, is the fact that Plaintiff was incarcerated for less than 10 months from a period of time of August 30th, 2020 through June 12th, 2021.

[00:25:16] Speaker 00:
And that's found at paragraph 75 of the complaint.

[00:25:20] Speaker 00:
The reason that's important is even if this court found extraordinary circumstances and decided to toll the statute of limitations for the entire period plaintiff was incarcerated, she still waited more than two years after being released from the jail to file her claim, which shows that she wasn't acting diligently, which is a requirement for the extraordinary circumstances test under the lame bull decision of the 10th Circuit, July 26, 2022.

[00:25:47] Speaker 00:
Similarly, plaintiff cannot establish

[00:25:49] Speaker 00:
that defendants prevented her from filing her lawsuit.

[00:25:52] Speaker 00:
Plaintiff's argument is that defendants hid evidence of their actions, and she did not learn about the basis of her action until she was contacted by a former county caseworker, Robin Niceta.

[00:26:02] Speaker 00:
However, as found by the district court, and that discussion with Ms.

[00:26:06] Speaker 00:
Niceta happened after she filed this lawsuit.

[00:26:09] Speaker 00:
But as found by the district court, plaintiff, after obtaining the Niceta affidavit, filed a complaint that included all of the same claims she had previously filed.

[00:26:18] Speaker 00:
So the district court found and I found correctly that it doesn't show that Pranav was unaware of the basis for her claims.

[00:26:26] Speaker 00:
In fact, we know she was aware of the basis for her claims based on the earlier 2020 and 2021 rule 59 motions and habeas petition.

[00:26:35] Speaker 00:
So there's nothing that plaintiff can point to that shows that defendants prevented her from being able to timely file her lawsuit in this case.

[00:26:42] Speaker 04:
Counsel, can I just stop you there and ask, what do you think the order of decision is here?

[00:26:47] Speaker 04:
I guess you've said the 11th Amendment.

[00:26:52] Speaker 04:
If we find that you prevail on the 11th Amendment, then we're done, correct?

[00:27:00] Speaker 00:
I believe you're done.

[00:27:01] Speaker 00:
I think the court could go in any order because I think if

[00:27:05] Speaker 00:
The court decided the statute of limitations in our favor.

[00:27:07] Speaker 04:
Is that a jurisdictional issue, statute of limitations?

[00:27:12] Speaker 00:
I mean, I believe it is at this point when it's established that it wasn't timely filed based on the allegations in the complaint.

[00:27:19] Speaker 04:
And where does Rooker Feldman fit in there?

[00:27:21] Speaker 00:
And again, I think this court could start with Rooker Feldman and decide on Rooker Feldman that her claims are barred jurisdictionally because again, all of her claims stem from these state court orders.

[00:27:32] Speaker 04:
How about as between the 11th Amendment and Rucker Feldman?

[00:27:36] Speaker 00:
I mean, again, I think... You think we could start anywhere.

[00:27:41] Speaker 00:
You could start on any of those issues, and I think we clearly win on any of those procedural grounds, jurisdictional grounds.

[00:27:47] Speaker 04:
Thank you.

[00:27:49] Speaker 00:
We've got less than four minutes left.

[00:27:51] Speaker 00:
Yeah, real quickly, and then I'll turn it over.

[00:27:55] Speaker 00:
Simply put, plaintiff is asking this court for a do-over

[00:27:58] Speaker 00:
by seeking to collaterally attack all of the state DNN orders through this federal lawsuit and asking this court to restore her parental rights.

[00:28:06] Speaker 00:
Federal courts, however, lack jurisdiction to issue domestic orders or to sit as super appellate courts in reviewing state court decisions.

[00:28:14] Speaker 00:
Plaintiffs have had a lot of process and opportunities to make these arguments in state court and failed to timely or successfully do so.

[00:28:21] Speaker 00:
Thus this court lacks jurisdiction to issue the relief requested by plaintiff and thus dismissal of her complaint should be affirmed and at this point I'll turn over the rest of my time to Ms.

[00:28:29] Speaker 00:
Cardi.

[00:28:39] Speaker 03:
May it please the court, Jennifer Cardi on behalf of Director Barnes.

[00:28:43] Speaker 03:
Plaintiff fails to demonstrate standing to bring suit against Director Barnes in her official capacity for three reasons.

[00:28:49] Speaker 03:
One, she fails to identify a state statute with which the state department has a connection of enforcing that's tied to her injuries.

[00:28:57] Speaker 03:
Two, she fails to plead sufficient facts to establish a state enforced custom or usage.

[00:29:02] Speaker 03:
And three, because of those two things, there is nothing for this court to enjoin.

[00:29:07] Speaker 03:
As this court knows to establish standing, the plaintiff must plead sufficient facts that the government entity is the moving force behind her injury and she has to show

[00:29:18] Speaker 03:
that this court has the ability to redress her injuries.

[00:29:22] Speaker 03:
She has not done so here.

[00:29:24] Speaker 03:
She has not established a meaningful nexus.

[00:29:27] Speaker 03:
To the extent she alleges an informal custom of parental alienation, the facts that she's pled do not support an inference that there exists a widespread, persistent and well-settled custom across the 64 counties that the State Department is responsible for supervising.

[00:29:43] Speaker 03:
She identifies a single case in a single county.

[00:29:47] Speaker 03:
She also alleges a conclusory statement that the county attorney that acted in her case uses this parental alienation theory to terminate the rights of mothers.

[00:29:58] Speaker 03:
But conclusory statements and pointing to a single case is insufficient under the case law to demonstrate a widespread settled practice by the State Department.

[00:30:07] Speaker 03:
To the extent the plaintiff argues that House Bill 231178 shows that the State Department has this custom, you'll note

[00:30:15] Speaker 03:
that this legislation cites to Title 14.

[00:30:18] Speaker 03:
Title 14 is domestic relations.

[00:30:21] Speaker 03:
This concerns parental allocation proceedings for every divorce case in the state of Colorado that allocates parental rights when children are involved.

[00:30:30] Speaker 03:
This does not involve Title 19 or the department as a party.

[00:30:35] Speaker 01:
Council, do you agree with your co-counsel about sort of whether we need to reach standing if we were to decide this on other grounds such as statute of limitations?

[00:30:45] Speaker 03:
Your Honor, I would agree with my co-counsel that any of these bases would satisfy grounds on which we would prevail.

[00:30:51] Speaker 03:
I actually don't think that standing should be the primary.

[00:30:56] Speaker 03:
I think 11th Amendment or statute of limitations is appropriate.

[00:31:01] Speaker 02:
We don't have jurisdiction to address statute of limitations.

[00:31:04] Speaker 02:
If we don't have jurisdiction to address issues, we can't.

[00:31:09] Speaker 03:
Yes, then 11th Amendment immunity would be the primary and then standing the secondary.

[00:31:16] Speaker 03:
In her appeal brief, she cites only to another statute, 193308, Section 4A, which was not raised in the briefing below and it was waived.

[00:31:31] Speaker 03:
She also refers to Title 19 generally.

[00:31:33] Speaker 03:
This lacks specificity, provides no notice to this court or the department as to what she's seeking to enjoin.

[00:31:40] Speaker 03:
But I will say that Title 19 includes responsibilities for various other agencies and the State Department, including the Office of the Child Protection on Budsman, the State Registrar of Vital Statistics, and the Department of Public Health and the Environment.

[00:31:54] Speaker 03:
The ex parte young exception to sovereign immunity permits only prospective relief.

[00:31:58] Speaker 03:
And the relief that the plaintiff has requested is not something that can be granted.

[00:32:03] Speaker 02:
You know your time has expired.

[00:32:05] Speaker 03:
I do, Your Honor, and if this Court has no further questions, we would just request that the Court affirm the rulings of the lower court.

[00:32:12] Speaker 02:
Thank you.

[00:32:15] Speaker 02:
Did the Pellin have some more time?

[00:32:18] Speaker 02:
I can't remember.

[00:32:20] Speaker 02:
No?

[00:32:20] Speaker 02:
Okay.

[00:32:22] Speaker 02:
Thank you, Counsel.

[00:32:23] Speaker 02:
Case is submitted.

[00:32:24] Speaker 02:
Counselor excused.