PEOPLE EX REL. SG

• Citation: 91 P.3d 443
• Decision Date: 26 February 2004
• Docket Number: No. 01CA2036.,01CA2036.
• Parties: The PEOPLE of the State of Colorado, In the Interest of S.G., S.G., and S.G., Children, Upon the Petition of the Douglas County Department of Human Services, Petitioner-Appellee, and Concerning J.G., Respondent-Appellant.
• Court: Court of Appeals of Colorado

91 P.3d 443

The PEOPLE of the State of Colorado,

In the Interest of S.G., S.G., and S.G., Children,

Upon the Petition of the Douglas County Department of Human Services, Petitioner-Appellee, and

Concerning J.G., Respondent-Appellant.

No. 01CA2036.

Colorado Court of Appeals, Div. III.

February 26, 2004.

Certiorari Denied May 24, 2004.¹

Dill Dill Carr Stonbraker & Hutchings, PC, Daniel W. Carr, Denver, Colorado, for Petitioner-Appellee.

Holland & Pagliuca, P.C., Jeffrey S. Pagliuca, Heather R. Hanneman, Denver, Colorado, for Respondent-Appellant.

Opinion by Judge NIETO.

J.G. (father) appeals the judgment terminating his parental rights with respect to his three daughters and the order denying his C.R.C.P. 60(b) motion. We affirm.

Father was tried for the murder of his wife, mother-in-law, and father-in-law and the attempted murder of one of his daughters. He was acquitted of all charges. Following the criminal trial, the Douglas County Department of Human Services (DCHS) commenced proceedings to terminate father's parental rights pursuant to § 19-3-604(1)(b)(II), C.R.S.2003 (court may order termination of parental rights based on a single incident resulting in serious bodily injury of a child).

Before the termination hearing, father moved to disqualify the trial judge because he had presided over the criminal trial (first recusal motion). The court denied this motion.

After the termination hearing, in a detailed, thorough, and well-reasoned order, the court terminated father's parental rights, finding by clear and convincing evidence that he killed his wife, mother-in-law, and father-in-law and caused serious bodily injury to his daughter. Father appealed that judgment.

A wrongful death action arising out of the same incident was pending against father, and it was also assigned to the same trial judge. After the termination hearing, the trial judge sua sponte recused himself from presiding over that case.

While this appeal was pending, DCHS disclosed that one of its expert witnesses had testified falsely. Father was granted a limited remand to pursue a motion for relief from judgment under C.R.C.P. 60.

Father then moved to disqualify DCHS's attorneys from the C.R.C.P. 60 proceeding and also moved for recusal of the trial judge (second recusal motion). The trial court did not disqualify DCHS's attorneys, did not recuse itself, and denied father's motion for relief from judgment. This recertified appeal followed.

I.

Father first contends that the trial judge erred by failing to recuse himself from the termination hearing and the C.R.C.P. 60(b) motion. We disagree.

"In a civil case, the trial judge's decision whether to disqualify himself or herself is discretionary and will not be reversed unless an abuse of discretion is shown." Zoline v. Telluride Lodge Ass'n, 732 P.2d 635, 639 (Colo.1987). However, on appeal, a trial court's determination of the legal sufficiency of a motion and affidavit to disqualify is subject to an independent review. The test of the sufficiency of a motion to disqualify is whether the motion and required affidavit state facts from which it may reasonably be inferred that the judge harbors bias or prejudice that will prevent him or her from dealing fairly with the party seeking recusal. Moody v. Corsentino, 843 P.2d 1355 (Colo. 1993). If the motion and supporting affidavit merely allege opinions or conclusions that are unsubstantiated by facts supporting a reasonable inference of actual or apparent bias or prejudice, disqualification is not required. Holland v. Bd. of County Comm'rs, 883 P.2d 500 (Colo.App.1994).

Generally, a judge's ruling on a legal issue cannot form the basis for recusal. Brewster v. Dist. Court, 811 P.2d 812 (Colo. 1991). Also, a judge's opinion formed against a party from evidence before the court in a judicial proceeding, even as to the guilt or innocence of a defendant, is generally not a basis for disqualification. Walker v. People, 126 Colo. 135, 145, 248 P.2d 287, 293 (1952).

A.

In the first recusal motion, father argued that disqualification was required because the trial judge presided over the criminal trial, made rulings there unfavorable to father, and appeared to believe during the trial that father committed the murders. Specifically, father points to two unfavorable rulings made by the trial judge: a finding of probable cause to bind over the criminal case for trial and a finding that the proof was evident and the presumption great that father had committed the charged murders.

1.

The trial judge denied the motion because, inter alia, it failed to assert "facts from which one could conclude that this court has some interest or prejudice in this case."

The motion failed to state facts from which it could be inferred that the trial judge was biased or prejudiced. It merely asserted that the trial judge had presided over father's criminal trial and made rulings in that case. It did not assert other facts from which bias or prejudice could be inferred.

Unfavorable rulings and a court's alleged personal opinion formed from the judicial proceeding are insufficient to establish bias. See Brewster v. Dist. Court, supra; Walker v. People, supra.

Father cites no case, and we are aware of none, holding that the mere fact that a judge presided over a related case involving the same party is a sufficient basis to disqualify that judge from a subsequent case. We have found cases, albeit not in Colorado, holding that a judge is not disqualified for presiding over an earlier unrelated case involving the same party. United States v. Frezzo, 563 F.Supp. 592 (E.D.Pa.1983), aff'd, 734 F.2d 8 (3d Cir.1984); State v. Webb, 238 Conn. 389, 680 A.2d 147, 186 (1996); People v. Peterson, 311 Ill.App.3d 38, 244 Ill.Dec. 206, 725 N.E.2d 1 (1999); State v. Parton, 817 S.W.2d 28 (Tenn.Crim.App.1991). We agree with the holdings in these cases and conclude that the mere fact that the trial judge presided over the earlier criminal case against father is not grounds for his disqualification here.

We reject father's contention that the trial judge was prejudiced by the evidence he heard in the criminal trial that would not have been presented in this case. What a judge learns in his or her judicial capacity usually cannot form the basis for disqualification. People v. Ramos, 708 P.2d 1347 (Colo. 1985). It is presumed that a trial judge disregards incompetent evidence. People v. Mascarenas, 181 Colo. 268, 509 P.2d 303 (1973). Without specific contrary evidence in the record, we presume that the trial judge here disregarded evidence inadmissible in this proceeding that he learned from the criminal proceedings.

As to the specific findings in the criminal case that father relies on here, we also conclude these are not a sufficient basis to require disqualification of the trial judge.

"[J]udicial rulings alone almost never constitute a valid basis for a bias or partiality motion." Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 1157, 127 L.Ed.2d 474 (1994); see also Brewster v. Dist. Court, supra; People v. Ramos, supra; Walker v. People, supra.

Accordingly, we conclude that the trial judge did not abuse his discretion in finding that the facts asserted in the motion did not support an inference that he was biased or prejudiced against father.

2.

Further, even if the assertions in the motion had been sufficient, the motion had fatal procedural flaws.

Here, father did not include an affidavit with his first motion, as required by C.R.C.P. 97. Without an affidavit, the motion to recuse was legally insufficient. See Jones v. Estate of Lambourn, 159 Colo. 246, 411 P.2d 11 (1966)

(appellate court refused to consider the issue where appellant did not comply with C.R.C.P. 97 in the trial court); Kubat v. Kubat, 124 Colo. 491, 238 P.2d 897 (1951)(the moving party must include an affidavit supporting the motion to disqualify).

Father argues that an affidavit was unnecessary because the facts were undisputed and known to the trial judge. Defendant did not raise this argument in the trial court or in his opening brief. Because the argument is raised for the first time in his reply brief, we need not consider it. See People v. Hall, 59 P.3d 298 (Colo.App.2002)

.

Additionally, the motion was untimely. The first motion to recuse was filed shortly before the termination hearing and thirty-eight months after the dependency and neglect action was started, twenty-one months after father was acquitted in the criminal case, and fourteen months after the motion to terminate parental rights was filed. This lapse of time, while legal proceedings continued, supports the trial judge's finding of untimeliness. See Aaberg v. Dist. Court, 136 Colo. 525, 319 P.2d 491 (1958)

(failure to file promptly a C.R.C.P. 97 motion when grounds are known may constitute waiver); Holland v. Bd. of County Comm'rs, supra (C.R.C.P. 97 motion filed one year after grounds were known was not filed promptly); Estate of Binford v. Gibson, 839 P.2d 508 (Colo.App.1992)(C.R.C.P. 97 motion filed two years after grounds were known was untimely).

B.

In his second recusal motion, father incorporated a C.R.C.P. 97 motion filed in the related wrongful death action, and asked the trial judge to recuse himself from the C.R.C.P. 60 proceedings. In his motion and affidavit, father cited several unfavorable rulings made by the court in the termination hearing and several statements in the court's termination order characterizing father as unbelievable. The trial judge found that all those statements were made in rulings during the prior proceedings. He concluded that rulings unfavorable to father were not sufficient grounds to justify his disqualification and denied the motion.

As stated above, opinions a judge formed from evidence in proceedings before the court are insufficient to require disqualification. Liteky v. United States, supra; Brewster v. Dist. Court, supra.

Unfavorable rulings alone are also...