2018 COA 50
Colo. Ct. App.2018Background
- In early 2016 the Arapahoe County Department of Human Services removed two children (C.Y. and newborn J.O.) and adjudicated them dependent and neglected; the Department later moved to terminate mother H.Y.’s parental rights.
- During the second day of the termination hearing mother referenced a 2005 dependency/neglect matter involving an older child; the juvenile judge then realized she had served as guardian ad litem (GAL) for that older child in 2005.
- The judge disclosed her prior GAL role mid-hearing and invited the parties to address recusal; mother orally moved for recusal based on the appearance of impropriety, which the Department and GAL opposed.
- The judge denied recusal, reasoning she had no specific recollection of mother, had not served as GAL during the termination phase of the 2005 case, and that prior advocacy for the older child did not create a disqualifying conflict.
- The 2005 case was heavily referenced at the termination hearing: the Department sought judicial notice of its records, relied on it in opening, elicited testimony about it, and referenced the prior termination history in closing; the juvenile court relied on mother’s prior history when terminating parental rights.
- The Court of Appeals concluded the judge’s prior role as GAL in the related earlier proceedings created an appearance of impropriety and reversed and remanded for a new termination hearing before a different judicial officer.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the juvenile judge should have recused herself for prior service as GAL in a related 2005 case | Mother: prior GAL role created appearance of impropriety given the 2005 case’s relevance to termination | Department/GAL: judge’s prior role did not require recusal; judge had no recollection and did not serve during termination in 2005 | Court reversed: judge abused discretion by not recusing because a reasonable observer could question impartiality |
| Whether mother preserved the recusal issue despite lacking a formal affidavit | Mother: timely oral motion on the record after disclosure sufficed | Department: recusal motion legally insufficient without affidavit | Court: preserved — judge’s disclosure mid-hearing and invitation to address sufficed to preserve issue |
| Whether prior advocacy in an unrelated proceeding automatically mandates recusal | Mother: prior adverse advocacy for the older child bore directly on issues considered in termination | Department: prior advocacy does not automatically disqualify absent material relationship or relevancy | Court: prior advocacy does not automatically require recusal, but here prior case was highly relevant so appearance of impropriety existed |
| Whether other termination issues (treatment plan compliance/unfitness findings) require review | Mother: court erred on treatment-plan and unfitness findings | Department: merits of termination supported by record | Court: did not reach merits because recusal error required reversal and remand |
Key Cases Cited
- Spring Creek Ranchers Ass’n v. McNichols, 165 P.3d 244 (Colo. 2007) (abuse of discretion standard for judge’s recusal decision)
- People in Interest of A.G., 262 P.3d 646 (Colo. 2011) (judge must recuse when impartiality might reasonably be questioned to protect public confidence)
- People v. Dist. Court, 560 P.2d 828 (Colo. 1977) (appearance of impropriety standard supports recusal)
- Watson v. Cal-Three, LLC, 254 P.3d 1189 (Colo. App. 2011) (definition of abuse of discretion as manifestly arbitrary, unreasonable, or unfair)