                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           AUG 25 2003
                                     TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                               Clerk

 JOLENE MCKEEL and
 GERALD MCKEEL,

          Plaintiffs - Appellants,                      No. 02-1303
 v.                                                  (D.C. No. 02-Z-104)
                                                          (D. Colo.)
 THE STATE OF COLORADO,

          Defendant - Appellee.


                             ORDER AND JUDGMENT *


Before EBEL, Circuit Judge, BRORBY, Senior Circuit Judge, and MURPHY,
Circuit Judge.


      Plaintiffs-Appellants Jolene McKeel (Baby Girl * s mother) and Gerald

McKeel (Baby Girl * s grandfather) argue on appeal that it is unconstitutional for

Colorado to allow the final termination of parental rights to be decided by a judge

instead of a jury. The plaintiffs-appellants, however, come before us late in the

procedural history of their case. They failed to comply with an “abuse and

neglect” plan to change the way they cared for their Baby Girl, and the Colorado



      *
        This Order and Judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
state courts affirmed the termination of their parental rights. 1 We find that the

exercise of federal jurisdiction over this case is barred by application of the

Rooker-Feldman doctrine because plaintiffs-appellants seek, inter alia, to

challenge on appeal the final decision of the Colorado state courts regarding

custody of the Baby Girl.



                                  BACKGROUND

      Because we dismiss plaintiffs-appellants’ claim for lack of jurisdiction, we

describe the facts of their case only briefly.

      In the Colorado state system, first there must be a determination whether a

child is neglected or abused such that the termination of parental rights would be

appropriate. Both parties agree there is a right to a jury at this stage of the

proceedings, and we accept that for purposes of this appeal since it is not

contested. After the finding of facts to support the termination of parental rights

is made, the actual execution of the termination may be suspended for some

period of time to allow parents an opportunity to comply with a treatment plan. If

the parents do not follow the treatment plan, the suspended judgment is then

enforced by a court and official termination of parental rights is entered. See,


      1
        Plaintiffs-Appellants have appealed unsuccessfully to the Colorado
Supreme Court, but it is not clear whether they petitioned for a writ of certiorari
from the U.S. Supreme Court.

                                         -2-
e.g., L.L. v. People, 10 P.3d 1271, 1275 (Colo. 2000) (en banc) (describing the

procedure under Colorado law). At this termination proceeding, there is no right

to a jury and the matter is decided by the court. Colo. Rev. Stat. § 19-3-602(4).

      On July 13, 1994, the State District Court for Mesa County, Colorado

issued an “emergency custody and pick-up order” for the Baby Girl at issue in the

McKeels’ case. Plaintiffs-Appellants 2 were scheduled for an “abuse and neglect”

proceeding under the Colorado Children’s Code in Colorado state courts and they

were given notice that an unfavorable disposition on the facts might result in the

termination of parental rights. See generally Colo. Rev. Stat. §§ 19-3-502, 19-3-

503, 19-3-505, and 19-3-507. The McKeels stipulated to their abuse and neglect

of the Baby Girl, however, so no trial occurred at this stage of the proceedings.

Plaintiffs-Appellants were permitted to maintain revokable custody of the Baby

Girl on the basis of a “corrective treatment plan” entered into with the state, but

they ultimately failed to comply with its provisions.

      On December 6, 1995, a Colorado state court judge found plaintiffs-

appellants in violation of the treatment plan and entered the order terminating the




      2
         We use the term “plaintiffs-appellants” throughout this opinion for both
McKeel adults. Jolene McKeel was party to all proceedings in state court and her
father intervened at the final disposition to present another option to the court in
awarding custody to him when it was clear his daughter would lose her parental
rights.

                                        -3-
McKeels’ parental rights. 3 Plaintiffs-Appellants appealed through the Colorado

state court system, but provide no evidence they petitioned for a writ of certiorari

from the U.S. Supreme Court.

      On January 17, 2002, nearly five years after plaintiffs-appellants were

denied relief by the Colorado Supreme Court, they filed suit in federal district

court to attack Colorado’s statute denying them a jury trial on the actual entry of

the termination order. As of the time of the federal district court proceedings, the

Baby Girl was almost eight years old and had been cared for by people other than

the plaintiffs for more than six years. In the hearing before the federal district

court, there was no answer to the judge’s inquiry why the plaintiffs had waited so

long to file their case.

      The federal district court ruled from the bench to dismiss the suit.

Throughout the hearing generally, the district court was troubled by why this case

was in federal court and not in state court. The court, though, seemed to suggest

three possible bases for its decision. First, the court said it did not have

jurisdiction to restore the child to the plaintiffs because that was a matter for the

state courts. Second, the court concluded that the Colorado statute denying a jury

trial at the termination proceeding did not violate the federal constitution. Third,


      3
        Any rights Gerald McKeel had were terminated by extension of the
termination of his daughter’s rights to the child. People ex rel. J.W.W., 936 P.2d
599, 601 (Colo. Ct. App. 1997).

                                         -4-
the court appeared to conclude that the plaintiffs had waived their claim for a jury

determination when they knowingly entered into a stipulation at the first stage

that a finding of abuse and neglect could be entered against them without a trial.

      On appeal, the McKeels petition to have Colorado Revised Statute Section

19-3-602(4) 4 declared both facially unconstitutional, and unconstitutional as

applied, rendering the state * s previous termination proceedings “null and void.”

Plaintiffs-Appellants ask for Baby Girl to be “restored to” them, or, in the

alternative, for a “jury trial [on] the subject termination proceedings.”

      We DISMISS the McKeels’ appeal for lack of jurisdiction because

application of the Rooker-Feldman doctrine bars their claim.



                                    DISCUSSION

      We review all issues of jurisdiction and law de novo. See, e.g., Elder v.

Holloway, 510 U.S. 510, 516 (1994); Dang v. UNUM Life Ins. Co. of Am., 175

F.3d 1186, 1189 (10th Cir. 1999).

      Pursuant to 28 U.S.C. § 1257, “federal review of state court judgments can

be obtained only in the United States Supreme Court” and, of course, review is

limited to issues of federal law. Kenmen Eng’g v. City of Union, 314 F.3d 468,


      4
          Colo. Rev. Stat. § 19-3-602(4) reads: “There shall be no right to a jury
trial at proceedings held to consider the termination of a parent-child legal
relationship.”

                                         -5-
473 (10th Cir. 2002) (quoting Kiowa Indian Tribe of Okla. v. Hoover, 150 F.3d

1163, 1169 (10th Cir. 1998)).

       In Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), the Supreme Court

first held that the grant of statutory jurisdiction to the Court to review state court

judgments could provide an independent basis for prohibiting collateral attack on

state court judgments in the lower federal courts. The plaintiff in Rooker sought

to have the judgment of a circuit court in Indiana, which had been affirmed by the

Indiana Supreme Court, declared null and void in the lower federal courts as a

violation of its federal constitutional right to contract. Id. at 414.

       But the U.S. Supreme Court wrote:

       It affirmatively appears from the bill that the judgment was rendered in a
       cause wherein the [state] circuit court had jurisdiction of both the subject-
       matter and the parties, that a full hearing was had therein, that the judgment
       was responsive to the issues, and that it was affirmed by the Supreme Court
       of the state on an appeal by the plaintiffs. If the constitutional questions
       stated in the bill actually arose in the cause, it was the province and duty of
       the state courts to decide them; and their decision, whether right or wrong,
       was an exercise of jurisdiction. If the decision was wrong, that did not
       make the judgment void, but merely left it open to reversal or modification
       in an appropriate and timely appellate proceeding [only to the U.S.
       Supreme Court].

       Id. at 415 (citation omitted and emphasis added).

       Years later, the Supreme Court reaffirmed Rooker’s central holding that

federal district courts do not have jurisdiction to hear challenges to the validity of

state court decisions appealable from the state system to the U.S. Supreme Court.


                                          -6-
Dist. of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476 (1983). As

the Supreme Court has articulated since, the effect of Rooker-Feldman is to

preclude “a party losing in state court . . . from seeking what in substance would

be appellate review of [a] state judgment in a United States district court, based

on the losing party’s claim that the state judgment itself violates the loser’s

federal rights.” Johnson v. De Grandy, 512 U.S. 997, 1005-06 (1994); Kenmen,

314 F.3d at 473.

       Plaintiff-Appellants essentially admit in their supplementary briefing that

Rooker-Feldman may bar their challenge to the Colorado statute as applied. They

argue, though, that their claim should be considered a challenge to the Colorado

statute both as applied and more generally. They rely for this argument on a

phrase from the Feldman case enabling a “general challenge” to a state statute to

survive application of the Rooker-Feldman doctrine.

       Under Feldman, a “general challenge” to the constitutionality of a statute

may remain within a federal court * s jurisdiction even after application of the

Rooker-Feldman doctrine. Feldman, 460 U.S. at 482-83; accord Richard H.

Fallon, Daniel J. Meltzer, and David L. Shapiro, Hart and Wechsler * s The Federal

Courts and The Federal System 1502 (4th ed. 1996). The Feldman Court wrote

that there was a distinction between as-applied challenges to statutes “seeking

review in a federal district court of a state court * s final judgment in a . . . matter”



                                           -7-
and general challenges “challenging the validity of a state . . . rule.” Feldman,

460 U.S. at 483-84.

      It is not clear what general challenge plaintiffs-appellants may have made

to the Colorado statute aside from their as-applied challenge. They employed the

word “facial” just once in their brief on appeal in an introductory paragraph and

present no broader argument against the Colorado statute distinct from the facts

of their case as applied. 5 Although we do not believe that the McKeels have in

fact asserted a general challenge separate from their challenge to the statute as

applied, we may, nonetheless, easily determine that any facial claim the McKeels

may have asserted would be barred by the “inextricably intertwined” test. Federal

courts may not hear claims raised in the same suit as an issue barred by Rooker-

Feldman if the claims are “inextricably intertwined” with the state court

judgment. Kenmen, 314 F.3d at 475 (citing Feldman, 460 U.S. at 483 n.16).

      A claim asserted in federal court is barred as “inextricably intertwined”

with the state court judgment in which the case is rooted unless it falls into one of

two categories. The first category consists of cases in which “the party does not

request that the federal court upset a prior state-court judgment applying [the

      5
         Traditionally, a party argued in an as-applied challenge that “a statute
cannot be applied to her because its application would violate her personal
constitutional rights.” Richard H. Fallon, As-Applied and Facial Challenges and
Third-Party Standing, 113 Harv. L. Rev. 1321, 1321 (2000). By contrast, a
“facial” attack asserted that “a statute is more generally invalid” and should be
struck down in all its applications. Id.; id. at 1326.

                                         -8-
contested] law against the party, and . . . the prior state-court judgment did not

actually decide that the state law at issue was facially constitutional.” Kenmen,

314 F.3d at 476 (citations and emphasis omitted). The second category consists

of cases in which “a party may challenge state procedures for enforcement of a

judgment[] where consideration of the underlying state-court decision is not

required.” Id. (citation omitted).

      The McKeels’ prayer on appeal was that we declare the Colorado statute to

be unconstitutional, thereby rendering the state * s previous termination

proceedings “null and void” and “restor[ing]” the Baby Girl to them, or, in the

alternative, granting a “jury trial [on] the subject termination proceedings.” The

McKeels’ claim thus falls into neither of the two categories that might exempt it

from being barred under the “inextricably intertwined” test for the Rooker-

Feldman doctrine. Under the first category, the McKeels specifically request that

the federal courts upset a prior state-court judgment applying Colorado’s parental

termination law against them. The McKeels’ claim fails under the second

category because we would be forced to consider the underlying Colorado state

court judgment if we were to declare it “null and void” for the Baby Girl to be

returned to the McKeels or for the McKeels to receive a new trial on the

termination of their parental rights. Thus, even if the plaintiffs-appellants are

raising a facial challenge, under the standard of the inextricably intertwined test



                                         -9-
for separate claims, no claim survives application of the Rooker-Feldman

doctrine’s bar on federal court jurisdiction.



                                  CONCLUSION

      Accordingly, we hold that the Rooker-Feldman doctrine bars the McKeels’

case from federal court and DISMISS the case for lack of jurisdiction.



                                        ENTERED FOR THE COURT



                                        David M. Ebel
                                        Circuit Judge




                                         - 10 -
