People in re C.Y

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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