Delinquency. Chatham Juvenile Court. Before Judge Colbert.
Meg E. Heap, District Attorney, Austin D. Roberson, Assistant District Attorney, for appellant.
Mark J. Nathan, for appellee.
The State brings this appeal from the juvenile court's dismissal without prejudice of the State's petition alleging that H. J. C. (" the child" ) had committed the delinquent act of violating his probation. On appeal, the State argues that the juvenile court erred when it denied the State's motion to recuse and when it granted the child's motion to dismiss. We conclude that although the trial court properly denied the State's motion to recuse, it erred when it dismissed the petition. We therefore affirm in part and reverse in part.
The record shows that on March 21, 2014, the State filed a petition alleging that the child had committed the delinquent act of violating his probation for previous delinquencies including burglary and criminal damage to property. The petition cited both OCGA § 15-11-2 (19), which includes a violation of probation by a child previously adjudicated as delinquent in its definition of a " delinquent act,"  and OCGA § 15-11-608 (b), which provides that a prosecutor informed of a violation of probation " may file a motion in the [juvenile] court for revocation of probation."  At a hearing on March 26, 2014, the State noted that it was orally amending its petition to proceed under OCGA § 15-11-2 (19) (B) only, and not under OCGA § 15-11-608. The juvenile court then continued the hearing until April 4, 2014, in order to obtain argument on the interplay between these two new Juvenile Code sections.
On March 27, 2014, however, the State filed a motion to recuse the juvenile court with a supporting affidavit alleging that although the child had not objected to the State's proposed amendment, the [331 Ga.App. 507] juvenile court had " sua sponte voiced her concerns" as to the interplay between the two Code sections, such that " the entire matter of controversy was raised by the [j]udge," whose " impartiality and bias would reasonably be questioned if [she] were to hear argument on the Court's own motion and decide [her] own motion." On March 31, the juvenile court denied the motion to recuse as insufficient under Uniform Juvenile Court Rule 27.2.
At the outset of the continued hearing held on April 4, 2014, the juvenile court stated the issue before it as whether the State should move to revoke probation under OCGA § 15-11-608 (b) rather than to petition the court to adjudicate a delinquency as defined by OCGA § 15-11-2 (19) (B) to include a violation of probation imposed on a child previously found delinquent. The child then moved to dismiss the petition on the ground that a petition charging a juvenile with the delinquent act of violating probation was not proper under the new Juvenile Code. After hearing argument from both sides, the trial court granted the child's motion and dismissed the State's petition without prejudice on the ground that OCGA § 15-11-608 created " a new procedure for addressing violations of probation," including the mechanism of bringing such a violation to the juvenile court's attention by means of motion rather than petition, such that " petitions [based on an alleged probation violation] filed pursuant to OCGA § 15-11-2 (19) (B) are not valid." This appeal followed.
1. The State first argues that the juvenile court erred when it denied the State's motion to recuse as legally insufficient. We disagree.
The Supreme Court of Georgia has summarized the procedure governing motions to recuse, set out in both Uniform Superior Court Rule 25 and Uniform Juvenile Court Section 27, as follows:
[T]he motion [must] be in writing and ... accompanied by affidavits that present all evidence thereon and fully assert the facts upon which the motion is founded. The supporting affidavit must state the facts and reasons for the [331 Ga.App. 508] belief that bias or prejudice exists, being definite and specific as to time, place, persons, and circumstances of the extra-judicial conduct or statements demonstrating bias. Bare conclusions and opinions stated in the affidavit are not legally sufficient to support the motion or warrant further proceedings. The motion and supporting affidavits initially are presented to the judge whose recusal is sought; the judge immediately determines the timeliness of the motion, the legal sufficiency of the affidavits and, assuming any of the facts of the affidavits to be true, whether recusal would be warranted. If all three prongs are met, another judge is assigned to hear the motion to recuse. The judge hearing the motion has the discretion to consider the motion solely on the affidavits or convene an evidentiary hearing, and the ruling on the merits of the motion shall be accompanied by written findings of fact and conclusions.
Mayor & Aldermen of City of Savannah v. Batson-Cook Co., 291 Ga. 114, 116 (728 S.E.2d 189) (2012) (citations and punctuation omitted). Determining whether an affidavit supporting a motion to recuse " is legally sufficient, and whether the facts asserted authorize recusal[,] ... does not require the exercise of discretion; rather, they present questions of law, for which the ...