         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




                                   1
 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


                                     5
  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


                                     6
  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


                                    7
  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


                                     8
        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


                                     9
  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




                                   10
  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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