In re Interest of G. S.

IN THE INTEREST OF G.S., A CHILD

No. 02-19-00390-CV

Court of Appeals Second Appellate District of Texas at Fort Worth

March 19, 2020

On Appeal from the 231st District Court Tarrant County, Texas

Trial Court No. 231-601747-16

Before Sudderth, C.J.; Womack and Wallach, JJ.

Memorandum Opinion by Chief Justice Sudderth MEMORANDUM OPINION

I. Background

This is a private termination-of-parental-rights case. Two days before G.S. was born, pro se Appellant Father was convicted of aggravated robbery, a first-degree felony, and sentenced to ten years' confinement. After G.S. tested positive for methamphetamine at his birth, his mother asked T.S. to take care of him because she knew the Department of Family and Protective Services (DFPS) was likely to become involved, and T.S. had previously adopted her older son, G.S.'s half-sibling, through the foster system. Half a year later, Father sought a DNA test for a determination of paternity, and he repeatedly asked that G.S. be placed with his brother.¹

T.S. became G.S.'s sole managing conservator on October 16, 2017, pursuant to an agreement with Father and G.S.'s birth mother. T.S. filed a petition to terminate the parent-child relationship as to both parents on May 8, 2018.² As to Father, T.S. alleged, among other grounds, that he had abandoned G.S. or had knowingly engaged in criminal conduct resulting in his conviction and confinement for not less than 2 years from the date the petition was filed and that termination of his parental rights was in G.S.'s best interest. See Tex. Fam. Code Ann. § 161.001(b)(1)(A)-(C), (Q), (2).

Father's parental rights were terminated after a trial in which the trial court found by clear and convincing evidence that he had voluntarily left the child alone or in the possession of another not the parent and expressed an intent not to return; that he had knowingly engaged in criminal conduct that resulted in his conviction of an offense and confinement or imprisonment and inability to care for the child for not less than two years from the date the petition was filed; and that termination of Father's parental rights to G.S. was in G.S.'s best interest. See id. § 161.001(b)(1) (A), (Q), (2).

Father, who was incarcerated at the time of the termination trial and remains incarcerated, argues on appeal that his due process rights were violated³ and that the criminal conduct that resulted in his incarceration occurred before G.S. was conceived; we interpret his argument as a challenge to the legal and factual sufficiency of the evidence.⁴ He also argues that the trial court was biased against him.⁵ We affirm.

II. Motion to Recuse

We review an order denying a motion to recuse for an abuse of discretion. Tex. R. Civ. P. 18a(j)(1)(A). A trial court abuses its discretion if it acts without reference to any guiding rules or principles—that is, if its act is arbitrary or unreasonable. Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007); Cire v. Cummings, 134 S.W.3d 835, 838-39 (Tex. 2004). We cannot conclude that an abuse of discretion occurred merely because we would have ruled differently in the same circumstances. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995); see also Low, 221 S.W.3d at 620.

A motion to recuse must be verified, must assert one or more of the grounds listed in Rule of Civil Procedure 18b, must not be based solely on the judge's rulings in the case, and must state facts, with detail and particularity, that are within the affiant's personal knowledge (although facts may be stated on information and beliefif the basis for that belief is specifically stated), that would be admissible in evidence, and that, if proven, would be sufficient to justify recusal. Tex. R. Civ. P. 18a(a)(1)-(4).

Rule of Civil Procedure 18b states that a judge must recuse in any proceeding in which: (1) the judge's impartiality might reasonably be questioned; (2) the judge has a personal bias or prejudice concerning the subject matter or a party; (3) the judge has personal knowledge of disputed evidentiary facts concerning the proceeding; (4) the judge or a lawyer with whom the judge previously practiced law has been a material witness concerning the proceeding; (5) the judge participated as counsel, adviser, or material witness in the matter in controversy, or expressed an opinion concerning the merits of it, while acting as an attorney in government service; (6) the judge knows that the judge, individually or as a fiduciary, or the judge's spouse or minor child residing in the judge's household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding; (7) the judge or the judge's spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person is a party to the proceeding or an officer, director, or trustee of a party; is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding; or is to the judge's knowledge likely to be a material witness in the proceeding; or (8) the judge or the judge's spouse, or a person within the first degree of relationship to either of them, or the spouse of such a person, is acting as a lawyer in the proceeding. Tex. R. Civ. P. 18b(b). The standardfor recusal on an assertion of bias is whether a reasonable person in the community would believe that the judge's recusal is required, and when a request for recusal is based on a trial judge's alleged bias, the bias must be extrajudicial and not based on in-court rulings. In re P.M., No. 02-14-00205-CV, 2014 WL 8097064, at *31 (Tex. App.—Fort Worth Dec. 31, 2014, pet. denied) (mem. op. on reh'g).

As the United States Supreme Court has explained, "judicial rulings alone almost never constitute a valid basis for a bias or partiality motion," and opinions that a judge forms during a trial do not necessitate recusal "unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible." Dow Chem. Co. v. Francis, 46 S.W.3d 237, 240 (Tex. 2001) (quoting Liteky v. United States, 510 U.S. 540, 555, 114 S. Ct. 1147, 1157 (1994)). "Thus, judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge," although "[t]hey may do so if they reveal an opinion that derives from an extrajudicial source; and they will do so if they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible." Liteky, 510 U.S. at 555, 114 S. Ct. at 1157. However, expressions of impatience, dissatisfaction, annoyance, and even anger that are within the bounds of what imperfect men and women sometimes display do not establish bias or partiality, and a judge's ordinary efforts at courtroom administration remain immune. Id. at 555-56, 114 S. Ct. at 1157. In Liteky, the United States Supreme Court held that judicial rulings, routine trial administrationefforts, and ordinary admonishments—whether or not legally supportable—to counsel and to witnesses that occur in the course of judicial proceedings and neither (1) rely upon knowledge acquired outside such proceedings nor (2) display deep-seated and unequivocal antagonism that would render fair judgment impossible are inadequate grounds to support recusal. Id. at 556, 114 S. Ct. at 1158.

If a motion to recuse does not comply with the requirements of Rule of Civil Procedure 18a, it may be denied without an oral hearing but must state the nature of the noncompliance. Tex. R. Civ. P. 18a(g)(3)(A).

Father filed a motion to recuse on January 4, 2019. In his motion, he complained, as he does on appeal, that the trial judge did not rule on or respond to anything that he filed⁶ and that the trial judge was biased in favor of T.S. because hehad ruled in her favor, noting particularly T.S.'s motion to consolidate that was ruled on and granted "one (1) day after it was filed,"⁷ and because the trial judge had allowed "presumed Ex Parte statements." The trial judge declined to recuse and referred the matter to the Presiding Judge of the Eighth Administrative Judicial Region to decide the motion.

The presiding judge denied the motion on January 23, 2019, without a hearing, stating that Father's motion had failed to meet the requirements set forth in Texas Rule of Civil Procedure 18a. In the order, the presiding judge explained that "[a] recitation of adverse rulings and a conclusory statement that the adverse ruling show[s] bias is legally insufficient to meet the requirements of a motion to recuse." See id. Because the denial of Father's motion to recuse does not reflect an abuse of discretion but rather demonstrates that the presiding judge followed the requirements of the Texas Rules of Civil Procedure applicable to motions to recuse, we overrule this issue. See Tex. R. Civ. P. 18a(j)(1)(A).

III. Termination of Parental Rights

For a trial court to terminate a parent-child relationship, the party seeking termination must prove two elements by clear and convincing evidence: (1) that the parent's actions satisfy at least one ground listed in Family Code Section 161.001(b)(1); and (2) that termination is in the child's best interest. Tex. Fam. Code Ann. § 161.001(b); E.N.C., 384 S.W.3d at 803; In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). Evidence is clear and convincing if it "will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established." Tex. Fam. Code Ann. § 101.007; E.N.C., 384 S.W.3d at 802.

A. Standards of Review

To determine whether the evidence is legally sufficient in parental-termination cases, we look at all the evidence in the light most favorable to the challenged finding to determine whether a reasonable factfinder could form a firm belief or conviction that the finding is true....