Parental Resp Conc RNM

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.

1

See In re Marriage

of Rivera, 91 P.3d 464, 466 (Colo. App. 2004) (it is the obligation of

1

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.