People in re C.Y ( 2018 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
April 5, 2018
2018COA50
No. 17CA0952, People in Interest of C.Y. — Juvenile Court —
Dependency and Neglect; Judges — Impartiality — Change of
Judge — Disqualification
In this dependency and neglect proceeding, the division holds
that the judge committed reversible error by not recusing herself
from the termination proceeding because the judge had previously
served as a guardian ad litem on a different case involving mother’s
older child.
COLORADO COURT OF APPEALS 2018COA50
Court of Appeals No. 17CA0952
Arapahoe County District Court No. 16JV98
Honorable Theresa M. Slade, Judge
The People of the State of Colorado,
Petitioner-Appellee,
In the Interest of C.Y. and J.O., Children,
and Concerning H.Y.,
Respondent-Appellant.
JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division VI
Opinion by JUDGE FURMAN
Fox and Ashby, JJ., concur
Announced April 5, 2018
Ronald Carl, County Attorney, Marilee McWilliams, Senior Assistant County
Attorney, Aurora, Colorado, for Petitioner-Appellee
Alison A. Bettenberg, Sarah Yarbrough, Guardians Ad Litem
Melanie Jordan, Respondent Parents’ Counsel, Golden, Colorado, for
Respondent-Appellant
¶1 In this dependency and neglect proceeding, H.Y. (mother)
appeals the juvenile court’s judgment terminating her parent-child
legal relationships with C.Y. and J.O. (the children). Mother
contends, among other things, that the juvenile judge erred by not
recusing herself from the termination proceeding because the judge
had previously served as a guardian ad litem (GAL) on a different
case involving mother’s older child. Because we agree that under
the circumstances of this case the judge abused her discretion by
not recusing herself from the proceeding, we reverse the judgment
and remand the case for a new termination hearing.
I. The Judge’s Prior Involvement
¶2 In early 2016, the Arapahoe County Department of Human
Services (Department) initiated a dependency and neglect case and
assumed temporary custody of six-year-old C.Y. after she witnessed
domestic violence between mother and her boyfriend. J.O. was
born later that month, so the Department filed an amended petition
adding him to the case.
¶3 The court adjudicated the children dependent and neglected
and adopted a treatment plan for mother. Later, the Department
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moved to terminate the parent-child legal relationships between
mother and the children.
¶4 On the second day of the termination hearing, mother testified
about her involvement in prior dependency and neglect cases,
including a 2005 case in Douglas County involving an older child.
A little while later, based on mother’s reference to the Douglas
County case, the juvenile judge alerted the parties that she had just
reviewed the records in that case and realized that she had served
as GAL for mother’s older child in 2005. The judge then invited the
parties to make a record as to whether she needed to recuse herself
from this case.
¶5 Mother asked the judge to recuse herself from the case based
on the appearance of impropriety created by the judge’s record of
her involvement in the 2005 case. The Department and GAL
objected to recusal. The judge denied mother’s request on the basis
that (1) she had no specific memory of mother or the 2005
proceeding; (2) she had stopped serving as the GAL in the case
when venue was changed to Jefferson County and, thus, was not
an attorney of record during the termination portion of the prior
case; and (3) there was no conflict between previously representing
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the older child’s best interests and deciding termination in this
case.
¶6 The juvenile judge’s involvement in the 2005 case reared its
head again during the third day of the termination hearing. In
order to impeach mother, the Department asked the court to take
judicial notice of the records in a 2005 Arapahoe County
dependency and neglect case involving the same older child. As it
turns out, the 2005 case started in Douglas County, where the
judge represented the older child as GAL, but venue was changed to
Jefferson County and then to Arapahoe County. The minute orders
from the Arapahoe County portion of the case, including the
termination hearing, identify the judge as the older child’s GAL,
although they also show that another attorney sometimes appeared
as the GAL.
¶7 Mother renewed her request for the juvenile judge to recuse
herself from the termination proceeding based on the appearance of
impropriety.
¶8 After considering the matter, the juvenile judge concluded that
she would not take judicial notice of the Arapahoe County court
record because the minute orders erroneously identified her as the
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GAL when she did not have a GAL contract in Arapahoe County at
that time. And, the judge denied mother’s request for recusal.
¶9 At the conclusion of the hearing, the juvenile court terminated
mother’s parental rights.
II. Recusal
¶ 10 Mother first contends that the juvenile judge erred by not
recusing herself from the termination hearing based on her having
served as the GAL of mother’s older child in 2005. Under the facts
of this case, we agree that the judge abused her discretion in
determining that there was no appearance of impropriety that
necessitated recusal.
A. Preservation
¶ 11 Initially, we note that mother did not file a motion with an
affidavit seeking to have the juvenile judge recuse herself under
C.R.C.P. 97. Generally, without an affidavit, a motion for recusal is
legally insufficient. People in Interest of S.G., 91 P.3d 443, 448
(Colo. App. 2004).
¶ 12 But, here, the juvenile judge’s involvement in the 2005
dependency and neglect case appears to have been unknown to the
parties and the court until partway through the termination hearing
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and, at that point, the court invited the parties to address the issue
orally on the record. Mother’s recusal request was also based solely
on the record the judge made in open court. And, while the record
does not show why the parties did not know about or inform the
judge of her continued involvement in the 2005 case until the third
day of the termination hearing, the court addressed mother’s
second oral motion for recusal. For these reasons, mother has
sufficiently preserved this issue for our review.
B. Legal Framework
¶ 13 Whether to recuse oneself is a matter within the juvenile
court’s discretion, and we will not disturb its ruling on appeal
absent an abuse of discretion. Spring Creek Ranchers Ass’n v.
McNichols, 165 P.3d 244, 245 (Colo. 2007). An abuse of discretion
occurs when the juvenile court’s decision is manifestly arbitrary,
unreasonable, or unfair. Watson v. Cal-Three, LLC, 254 P.3d 1189,
1192 (Colo. App. 2011).
¶ 14 The Code of Judicial Conduct requires a judge to disqualify
himself or herself in any proceeding in which the judge’s
impartiality might reasonably be questioned. C.J.C. 2.11(A). That
is, a judge must recuse himself or herself whenever the judge’s
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involvement with a case might create the appearance of
impropriety. People in Interest of A.G., 262 P.3d 646, 650 (Colo.
2011).
¶ 15 This broad standard serves not only to secure the confidence
of the parties to the proceeding, but also to protect public
confidence in the judiciary. Id.; see also People v. Dist. Court, 192
Colo. 503, 508, 560 P.2d 828, 831-32 (1977). Thus, while a judge
might be able to act impartially in a particular case, he or she must
nonetheless recuse himself or herself when a reasonable observer
might have doubts about the judge’s impartiality. A.G., 262 P.3d at
650.
C. Basis for Recusal
¶ 16 This is not a case in which the juvenile judge had to recuse
herself because she previously represented a party to the case. See
§ 13-1-122, C.R.S. 2017 (providing that absent consent of all
parties, a judge shall not act in any action or proceeding in which
he or she has been attorney or counsel for either party in the action
or proceeding). Rather, as the juvenile judge explained, she had
represented the best interests of the older child, who was not a
party to this dependency and neglect case. Thus, the question
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turns on whether the juvenile judge’s involvement as a GAL in the
2005 proceedings creates an appearance of impropriety.
¶ 17 As noted, the juvenile judge asserted, and no party disputed,
that she had not participated as the GAL during the termination
phase of the 2005 dependency and neglect case. Be that as it may,
the judge participated as an advocate in earlier proceedings in
2005, including during the adjudication and dispositional phases.
And, the judge recognized that the record from the 2005
proceedings showed her continuing to serve as the GAL through
termination.
¶ 18 The record of the 2005 dependency and neglect proceedings
also showed that in her role as the older child’s GAL, the judge
advocated a positon that was adverse to mother. For example, a
minute order from April 2005 shows that as GAL, the judge
objected to mother’s request to have the older child returned to
mother’s care. And, the minute order from the termination hearing
showed that the attorney who appeared as GAL was “in agreement
with the termination.”
¶ 19 Still, a judge is not automatically required to recuse himself or
herself from hearing a case simply because he or she has previously
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served as an advocate against a party in a previous case. See
People v. Flockhart, 2013 CO 42, ¶¶ 48, 51. In Flockhart, the
supreme court concluded that a trial judge was not required to
recuse himself from presiding over a criminal trial simply because,
as a prosecutor, he had previously brought unrelated criminal
charges against the defendant. Id. at ¶ 52. It reasoned that recusal
was not invariably required absent facts demonstrating some
material relationship or relevancy between the two proceedings. Id.
¶ 20 But, unlike in Flockhart, the earlier dependency and neglect
case, and, specifically, the termination of mother’s parental rights
proceeding, were highly relevant during this termination
proceeding. Indeed, the statutory criteria for termination required
the juvenile court to determine, among other things, that mother
was unfit and that her conduct or condition was unlikely to change
in a reasonable time. See § 19-3-604(1)(c)(II)-(III), C.R.S. 2017. In
making these determinations, the Children’s Code requires the
court to consider
 whether, on two or more occasions, a child in the parent’s
physical custody has been adjudicated dependent or neglected
in a proceeding under the Children’s Code; and
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 whether, on one or more prior occasions, a parent has had his
or her parent-child legal relationship terminated pursuant to
the Children’s Code.
§ 19-3-604(2)(l)-(m).
¶ 21 The record from the termination hearing exemplifies this point.
The Department referenced the 2005 dependency and neglect case
in its opening statement. The caseworker testified regarding the
circumstances surrounding the 2005 case and further opined that
mother’s failure to successfully complete the treatment plan in that
case was a concern because it showed a continued pattern of
noncompliance and substance use. Mother also testified and was
cross-examined regarding her involvement in the 2005 case.
¶ 22 And, as previously discussed, the Department asked the court
to take judicial notice of the records from the 2005 case. This
request resulted in the judge determining the reliability of the
records — including an assessment of the extent of her own
involvement — in the 2005 case.
¶ 23 The advocacy did not end there. The Department also
addressed the 2005 case in its rebuttal evidence and in its closing
argument. The GAL similarly, but more generally, emphasized the
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significance of mother’s history with other dependency and neglect
cases. Thus, even though the juvenile court did not take judicial
notice of the case records, both the GAL and the Department
discussed the case and urged the court to rely on it when ruling on
the termination motion — and the court did so. For example, in the
oral termination ruling, the juvenile court referenced mother’s
fourteen-year history of “this type of behavior or conduct or
condition” and involvement with the Department as a basis for
determining that mother’s condition was unlikely to change in a
reasonable time.
¶ 24 Under these circumstances, the juvenile judge’s presiding over
the termination proceeding created the appearance of impropriety.
As a result, the judge abused her discretion in denying mother’s
request to recuse herself from the termination proceeding.
III. Other Issues Related to Termination
¶ 25 Mother also contends that the juvenile court erred by (1)
finding that she had not successfully complied with the treatment
plan and (2) not making explicit findings regarding her unfitness.
Because we have already concluded that the termination judgment
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must be reversed and remanded for a new hearing, we do not
address these issues.
IV. Conclusion
¶ 26 The judgment is reversed and the case is remanded for a new
termination hearing before a different judicial officer.
JUDGE FOX and JUDGE ASHBY concur.
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