Colorado ex rel. A.G
Annotate this CaseThe Supreme Court reviewed a judge disqualification issue raised by the appellate court's decision to reverse and remand an order that terminated the parental rights of Respondent, C.M. (Mother). In its review of the termination hearing, the court of appeals held that the trial judge should have recused himself on the grounds that his clerk was the mother of a material witness in the case. Although the court of appeals held that the judge should have been disqualified, Mother’s lateness in filing the motion for disqualification prompted the court to conclude that Mother may have waived her right to move for disqualification. According to the court of appeals, the question of whether Mother had waived the disqualification issue turned on whether her counsel was ineffective for failing to timely file the motion for disqualification. Reasoning that Mother could not be bound by waiver if she had in fact received ineffective assistance of counsel, the court of appeals remanded for additional findings about counsel’s performance. The court then directed the chief judge of the district to transfer the case to himself or to a senior judge for the proceedings on remand. Upon review, the Supreme Court reversed the appellate court and vacated the transfer: "[w]ithout deciding what is required to prevail on an ineffective assistance claim, the supreme court acknowledges that, at the least, an allegation of prejudice is necessary. Moreover, the court holds that when an ineffective assistance claim is premised on counsel’s failure to file a motion for disqualification, the prejudice element cannot be satisfied without an allegation that the judge was actually biased. Because the respondent’s motion for disqualification was entirely based on an appearance of impropriety, rather than a claim of actual bias, it failed to satisfy the prejudice element." The Court held that Mother's motion was untimely and should not have been granted. The case was remanded to the trial court for further proceedings.
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