in the Interest of B.A., B.W., and B.W., Children ( 2022 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-21-00278-CV
___________________________
IN THE INTEREST OF B.A., B.W., AND B.W., CHILDREN
On Appeal from the 393rd District Court
Denton County, Texas
Trial Court No. 19-0707-431
Before Womack, Wallach, and Walker, JJ.
Memorandum Opinion by Justice Womack
MEMORANDUM OPINION
I. INTRODUCTION
Appellant C.H. (Mother) appeals the trial court’s order terminating her parental
rights to her children B.A. (Barbara), B.W. (Bella), and B.W. (Bristol) (collectively the
Children).1 In her sole issue on appeal, Mother argues that she was deprived of due
process as a result of the actions and comments of the trial judge who presided over
the early part of this case (the former trial judge). She alleges that the former trial
judge was biased and prejudiced, that he advocated on behalf of the Department of
Family and Protective Services (the Department), and that his sua sponte finding of
aggravated circumstances denied her the opportunity to engage in services and
deprived her of due process. Because Mother failed to object at the trial-court level to
the complaints she now raises on appeal, and because the case was transferred from
the former trial judge to a different trial judge (of whom Mother makes no complaint)
who presided over a jury trial that culminated in the termination of Mother’s parental
rights, we hold that Mother’s complaint is not preserved for our review. Thus, we will
affirm.
1
We use aliases to refer to the Children and their parents. See Tex. Fam. Code
Ann. § 109.002(d); Tex. R. App. P. 9.8(b)(2).
2
II. BACKGROUND
A. Investigation and Removal
Mother and B.A. (Brad) are the parents of Barbara. Mother and L.W. (Levi)
are the parents of Bella and Bristol.2
The Department became involved with Mother in June 2018, following a
domestic incident in which Levi was alleged to have “pull[ed] a gun” on Mother. In
August 2018, the Department again became involved with Mother after a domestic-
violence incident between Levi and Mother that occurred while Barbara and Bella
were present. As part of that investigation, Mother and Barbara were sent for drug
testing; Barbara tested positive for cocaine; and Mother testified positive for
marijuana.3 The Department referred the case to Family-Based Safety Services,4 and
Barbara and Bella were placed with their maternal grandmother.5
2
Brad voluntarily relinquished his parental rights to Barbara, and Levi
voluntarily relinquished his parental rights to Bella and Bristol. The trial court
terminated Brad’s and Levi’s respective parental rights based on those
relinquishments. Brad and Levi do not appeal.
Barbara was five at the time of the drug test.
3
Family-Based Safety Services “is a CPS program that works with parents to try
4
to keep children in the home.” In re D.C., No. 05-19-01217-CV, 2020 WL 1042692, at
*1 (Tex. App.—Dallas Mar. 4, 2020, pet. denied) (mem. op.); see 40 Tex. Admin. Code
§ 700.710.
Bristol had not been born at this time.
5
3
In January 2019, the Department removed Barbara and Bella following a third
domestic-violence incident at Mother’s apartment that occurred while Bella was
present. That same month, the Department filed its petition to terminate Mother’s
parental rights to Barbara and Bella, and the case was assigned to the former trial
judge.
B. The Monitored Return, the Car Accident During the Period of the
Monitored Return, and the Subsequent Removal
In November 2019, a different trial judge ordered a monitored return of
Barbara and Bella to Mother. Two months later, Mother was driving approximately
seventy miles per hour when her car rear-ended another vehicle. Barbara was in the
back seat of Mother’s car at the time of the accident, and Barbara was not in a car seat
and was not wearing a seatbelt. Barbara was taken to the hospital after the accident,
where she was treated for a fractured arm and a vaginal tear.
Medical personnel opined that Barbara’s vaginal tear was not caused by the car
accident but that it was consistent with sexual abuse. Mother initially refused to allow
Barbara to be examined by a sexual assault nurse examiner (SANE), maintaining that
Barbara’s injury was not caused by sexual abuse. When a SANE examination was
later attempted, the SANE nurse was unable to complete the evaluation due to the
stitches and sutures in Barbara’s vaginal area.
During a forensic interview after the car accident, Barbara told the interviewer
that “she did not know if anyone had touched her private areas.” Barbara also told
4
the interviewer that Mother had allowed her to drink an alcoholic drink while they
were lying in bed one night. Mother denied ever giving Barbara alcohol. The
Children’s foster mother, however, later recounted an occasion when she had given
Barbara a water bottle, Barbara had become upset, and Barbara had told the foster
mother, “I don’t want to drink fuzzy drink. . . . [S]ometimes I drink fuzzy drink when
I go to bad places.” The foster mother also recounted that Barbara had told her,
“[Mother] said I have to say my stitches are from the car accident.”
A few days after the car accident, the Department removed Barbara and Bella
from Mother’s care, and the former trial judge set a post-removal adversary hearing
for February 2020. The Department also filed a new case requesting the termination
of Mother’s parental rights to Bristol—who had been born in September 2019—and
it removed Bristol from Mother’s care.
In the week following her removal, Bristol was exhibiting irritability, fussiness,
inconsolability, heavy sweating, and tremors. As described by the Children’s foster
mother, Bristol “scream[ed] uncontrollably for a period of ten hours at one point.”
Bristol was taken to Children’s Medical Center in Dallas, where she was diagnosed
with drug withdrawal and where she stayed for three days.
C. The Complained-Of Adversary Hearing Before the Former Trial Judge
A post-removal adversary hearing took place before the former trial judge over
two days in February 2020. The complaints Mother makes now on appeal stem from
5
certain actions and comments may by the former trial judge at the post-removal
adversary hearing.
1. Interrogation of Witnesses
Mother complains that at the hearing, the former trial judge “actively
interrogated witnesses and [Mother] herself, effectively advocating for the
Department.” Mother points to four examples of this alleged interrogation of
witnesses.
First, Mother points to questions that the former trial judge asked during
Mother’s cross-examination of a nurse, after the nurse testified that one of the
Children had tested positive for COVID-19:
[The Former Trial Judge]: I’m sorry, but I have to know. Do you all not
ask, under those circumstances, ask questions about whether—obviously
the child may not have traveled to China or a country where that virus
has originated, but ask about international travel and contact that may
have led to the child being exposed?
[The Witness]: Always. That’s actually—
[The Former Trial Judge]: Did you—
[The Witness]: That’s actually prompted, and we do assess those.
[The Former Trial Judge]: Did you find anything out in that regard?
[The Witness]: There was no travel.
[The Former Trial Judge]: Huh?
[The Witness]: There was no international travel. Is that what you are—
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[The Former Trial Judge]: Right. No reason to believe the child was
exposed through someone else’s international travel?
[The Witness]: Correct.
[The Former Trial Judge]: Is that virus now randomly occurring?
[The Witness]: There are hundreds of strains of Coronavirus, so this is
basically a cold. So this is not the strain that we see in China. So
that’s—
[The Former Trial Judge]: I thought this was like a sudden Ebola
outbreak.
[Mother’s Attorney]: No, Your Honor.
[The Former Trial Judge]: Forgive us. Us lawyers are not real smart.
[The Witness]: When I saw that pop up, I thought, wow, she’s not sick.
But it shows she had an exposure.
[The Former Trial Judge]: All I could think about is how in the world is
this infant being exposed to Coronavirus. Did not know that. Thank
you.
[The Witness]: No. This is just basically a common cold.
[The Former Trial Judge]: I will resume being blissfully ignorant.
Second, Mother points to the following exchange that occurred during the
Department’s examination of one of its investigators, who was testifying about
conversations with Mother regarding the car accident:
[The Former Trial Judge]: I’m sorry, then I got to interrupt. You said
just a little while ago that [Mother] reported to you that [Barbara] was in
the back seat.
[The Witness]: So the evening of the incident she was in the back seat
because they were on their way to get the four-year-old. And the other
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two children were still in daycare. I’m not sure as to why she wasn’t in a
car seat at that time, but the explanation was the other—
[The Former Trial Judge]: Okay. I’m just trying to make sure I’m not—
I’ve heard you reference back and front both now.
[The Witness]: Yes.
[The Former Trial Judge]: So are you saying that she told you generally
that [Barbara] will ride in the front seat, but at the time of the accident
[Barbara] was in the back seat?
[The Witness]: That’s correct.
[The Former Trial Judge]: Okay. Because the other children weren’t in
the car with them?
[The Witness]: They were not, yes.
[The Former Trial Judge]: Thank you for clarifying.
Third, Mother points to several questions that the former trial judge asked
Mother following the Department’s redirect examination of her. The complained-of
questions included questions regarding Mother’s marital status, Levi’s incarceration,
the identity of Bristol’s father, whether Bristol had any Native American ancestry,
whether Barbara cried during the car accident, the speed Mother was traveling during
the car accident, whether she applied her brakes before the impact, the facts relating
to how Barbara got into the back seat of the car on the day of the accident, whether
the base of the car seat was in the car, whether the base of the car seat was buckled,
and whether Mother had verified that Barbara was buckled in the car on the day of
the accident.
8
Fourth, Mother points to the following exchange that occurred at the
conclusion of the testimony from the Children’s maternal grandmother:
[The Former Trial Judge]: Ma’am, do you not realize that children
[Barbara’s] age and younger are supposed to be in car seats?
[The Witness]: I did not know, because [Barbara] is not a little girl. I
was going by the weight requirement.
[The Former Trial Judge]: So what’s the weight requirement?
[The Witness]: 70 pounds. I swear I thought it was 70 pounds.
[The Former Trial Judge]: Where did you get that?
[The Witness]: My kids are grown.
[The Former Trial Judge]: I wouldn’t necessarily expect you to know.
2. Inappropriate Comments
Mother also complains that at the hearing, the former trial judge made certain
comments that were inappropriate and demonstrated that he “harbored a deep-seated
antagonism towards [Mother].”6 Mother points to the following statement made by
the former trial judge just before both sides gave their closing arguments at the
hearing:
6
In its brief, the Department argues that the former trial judge made several
favorable rulings to Mother and that he also expressed “anger and frustration” toward
one of the Department’s witnesses. The Department points to an exchange the
former trial judge had at a later hearing with a Department caseworker who was
testifying as a witness, where the former trial judge stated, “Oh, my God, please
answer the question. You know the answer. Give her the answer.” The former trial
judge went on to tell the caseworker, “No, it is not appropriate. My God, is it really
that difficult to admit? Please ask your next question. Holy crap.”
9
At best, that day mother committed the offense, the felony offense of
endangering a child, at best. And, at best, mother committed the felony
offense of injury to a child. I don’t know why mother wasn’t arrested. I
don’t know why mother has not been charged. But I have no control
over that.
What I do know is that mother’s direct actions, and not just
omissions, actions, justified those two felony charges. And but for the
grace of God we have not had to bury [Barbara]. And it seems like
that’s lost on everybody while we are arguing about sexual abuse. I don’t
know a parent, I guess I should say I don’t know a good parent that
wouldn’t, with absolute certainty, verify that their child is buckled in the
back seat if they are going to be hopping on the highway going 70 miles
an hour. No good parent would find themselves in that situation.
Mother also points to the following exchange that occurred when the
Children’s foster mother was testifying regarding the Children’s progress in her care:
[The Witness]: [Bristol] is also doing well. She didn’t have any
significant medical concerns during that time at all, or since. She has
seasonal allergies. That’s kind of the biggest medical thing. She has
some displaced anger. She gets very angry at things and throws, hits,
screams quite often. She stomps her feet. Again, she is 18 months old,
so—
[The Former Trial Judge]: Have you ever met a woman that doesn’t do
that?
3. Sua Sponte Finding of Aggravated Circumstances
Mother also complains that at the hearing, the former trial judge made a sua
sponte finding of aggravated circumstances which denied her the opportunity to
engage in services and denied her due process. See Tex. Fam. Code Ann. § 262.2015.
Mother claims that “it was clear from the outset that [the former trial judge] had
already decided what he was going to do, and he would do anything to make sure that
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the results in ‘his’ court met with his expectations.” Mother points to a statement
made by the former trial judge at the conclusion of the first day of the hearing, where
he stated,
I think the circumstances also may very well lead to an aggravated
circumstances finding. So I would like you to think about that relative to
the services the Department is asking for, and whether there should even
be services at all, based on findings that the Court may be able to make
relative to the allegations and the evidence presented so far.
Mother next points to a statement made by the former trial judge on the
second day of the hearing, prior to closing arguments, where he stated,
I think there should be [an] aggravated circumstances finding. I don’t
think there is any need for a service plan at this point. I don’t think
there is any need for the Department to attempt to return the children to
[M]other. I think there needs to be a jury trial set sooner rather than
later. I will entertain your argument on why I shouldn’t do that. That’s
what I am inclined to do.
I understand there are other factors that extend beyond merely
findin[g] that a parent has committed those offenses. But what is
disturbing above all is that all this occurred, it would be one thing if this
just happened, and I guess to some extent all parents are entitled to be
given some deference that they won’t be perfect and they will make
mistakes. But this all happened at a time when [Mother] was under this
Court’s scrutiny, when [Mother] was under the Department’s scrutiny,
[the attorney ad litem’s] scrutiny, CASA’s scrutiny, at a time when she
was supposed to be demonstrating to us that she can provide her
children with a safe and stable environment. Bam. 70 miles an hour.
Could have killed that child. Makes me sick. And I don’t understand
why, based on the evidence that has been presented, there’s not just an
aggravated circumstances finding and a trial set.
At the conclusion of the hearing, the former trial judge made a finding of
aggravated circumstances—even though the Department did not specifically request a
11
finding of aggravated circumstances—and he set a trial date for June 1, 2020. See id.The former trial judge later signed a written order finding aggravated circumstances
against Mother.
D. The Transfer to the 393rd District Court, the Jury Trial Before the 393rd
District Court, and the Final Termination Order
On January 15, 2021,7 the cases involving the Children were transferred from
the 431st District Court to the 393rd District Court “as part of the reallocation of
caseloads for the District Courts of Denton County.” The case involving Barbara and
Bella was later consolidated with the case involving Bristol.
In July 2021, the trial judge of the 393rd District Court presided over a nine-
day jury trial on the merits of the Department’s petition to terminate Mother’s
parental rights to the Children. At the conclusion of the trial, the jury unanimously
found that Mother’s parental rights to the Children should be terminated under
predicate grounds (D), (E), and (O) and that termination of her parental rights was in
the best interest of the Children. See id. § 161.001. The trial judge of the 393rd
District Court later entered a final order of termination consistent with the jury’s
findings.8 Mother appeals from that termination order.
7
Although trial had been set for June 1, 2020, the trial date was continued due
to the COVID-19 pandemic.
8
The former trial judge’s aggravated-circumstances finding was not mentioned
in the jury charge, nor was it mentioned in the final order of termination. Moreover,
the trial judge of the 393rd District Court granted Mother’s limine request that the
parties not reference the former trial judge’s aggravated-circumstances finding.
12
III. DISCUSSION
In her sole issue on appeal, Mother argues that the former trial judge was
biased and prejudiced, that he advocated on behalf of the Department, and that his
sua sponte finding of aggravated circumstances denied her the opportunity to engage
in services and deprived her of due process. The Department counters that because
Mother failed to object to any of the complained-of actions or comments by the
former trial judge, Mother has failed to preserve the complaints she is now making on
appeal. While Mother admits that “her appointed trial counsel failed to object to [the
former trial judge’s] unreasonable behavior and failed to request that [the former trial
judge] recuse [himself],” Mother contends that her failure to object “does not operate
as a waiver of error.”
A. The Law on Preservation
To preserve a complaint for appellate review, a party must present to the trial
court a timely request, objection, or motion that states the specific grounds for the
desired ruling, if not apparent from the request’s, objection’s, or motion’s context.
Tex. R. App. P. 33.1(a)(1)(A); see also Tex. R. Evid. 103(a)(1). If a party fails to do this,
error is not preserved. Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991) (op. on reh’g).
With respect to a complaint regarding a trial judge’s alleged improper conduct or
comments, “[t]he claimant bears the burden to ‘explain how any comments made by
the trial judge were incurable or would excuse’ the claimant’s ‘failure to preserve
error.’” In re Commitment of Stuteville, 463 S.W.3d 543, 557 (Tex. App.—Houston [1st
13
Dist.] 2015, pet. denied) (quoting Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex.
2001)).
Error that falls within the narrow category of “fundamental error” requires no
trial-court predicate for appellate review. In re B.L.D., 113 S.W.3d 340, 350 (Tex.
2003). Fundamental error exists in rare instances in which error directly and adversely
affects the interest of the public generally, as that interest is declared by the statutes or
constitution of our state, or instances in which the record affirmatively and
conclusively shows that the court rendering the judgment lacked subject-matter
jurisdiction. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 577 (Tex. 2006).
Although not framed in terms of fundamental error, the Texas Supreme Court
has recognized that claims of judicial bias would not be waived by a failure to object
in the trial court if “the conduct or comment cannot be rendered harmless by proper
instruction.” Dow Chem., 46 S.W.3d at 241. As we have explained previously, “[t]his
‘limited,’ ‘narrow,’ and ‘rare’ exception to the preservation-of-error requirements in
civil cases essentially requires a harm analysis—the error ‘probably caused the
rendition of an improper judgment’—to determine if the error was incurable and,
therefore, not subject to waiver.” In re L.S., No. 02-17-00132-CV, 2017 WL 4172584,
at *16 (Tex. App.—Fort Worth Sept. 21, 2017, no pet.) (mem. op.) (first citing Tex. R.
App. P. 44.1(a)(1); then citing B.L.D., 113 S.W.3d at 350–51; then citing In re K.R.,
63 S.W.3d 796, 799–800 (Tex. 2001); and then citing Dow Chem., 46 S.W.3d at 241).
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B. Application of the Law to the Facts
Here, it is undisputed that Mother did not object at the trial-court level
regarding the complaints she now makes on appeal. And Mother does not argue that
the trial court lacked subject-matter jurisdiction nor contend, let alone demonstrate,
that the former trial judge’s actions and comments directly and adversely affected the
public interest as declared in the statutes or constitution of our state. See Mack Trucks,
206 S.W.3d at 577. Thus, the issue of whether Mother has preserved her complaints
turns on whether the alleged error “probably caused the rendition of an improper
judgment.” L.S., 2017 WL 4172584, at *16.
Having reviewed the record and Mother’s complaints, we cannot say that the
alleged error “probably caused the rendition of an improper judgment.” See id. The
actions and comments made by the former trial judge that Mother complains of
occurred at the post-removal adversary hearing in February 2020. Subsequent to that
hearing, the case was transferred to the 393rd District Court, and the trial judge of the
393rd District Court—not the former trial judge—presided over a nine-day jury trial
in July 2021. Mother makes no complaint regarding the trial judge of the 393rd
District Court and no complaint regarding the July 2021 jury trial, and Mother does
not explain how the actions and comments of the former trial judge impacted the
results of the July 2021 jury trial.9 Indeed, the relief that Mother seeks on appeal—
9
To the extent that Mother complains that the former trial judge’s sua sponte
finding of aggravated circumstances limited her ability to engage in services, we note
15
that we reverse the termination order and remand the case back to the trial court—
seems redundant when the case was already transferred away from the former trial
judge and where a trial before a different judge has already taken place.
To support her argument, Mother points us to L.S., a termination case
involving the former trial judge, where we held that the former trial judge’s conduct in
that case demonstrated a “deep-seated antagonism” against one of the parents that
deprived the parent of “a fair trial before an impartial fact-finder and resulted in
fundamental and harmful error.” 2017 WL 4172584, at *21. In L.S., we detailed
numerous instances where the former trial judge demonstrated his bias against the
parent, and we noted that the final termination hearing was a bench trial before the
former trial judge. Id. at *5–13. We ultimately held that “[b]ased on the exceptional
and singular facts that are clearly shown in the record here, . . . [the former trial judge]
ceased to be a neutral and unbiased fact-finder . . . which probably resulted in the
rendition of an improper judgment . . . .” Id. at *1. We thus reversed the order of
termination and remanded the case for a new trial before a different trial judge. Id.
at *21.
that complaints regarding a trial court’s finding of aggravated circumstances made in a
temporary order are moot after rendition of a final termination order. See In re A.K.,
487 S.W.3d 679, 683–84 (Tex. App.—San Antonio 2016, no pet.) (holding that
father’s complaints about aggravated-circumstances findings in temporary orders were
mooted by final termination order); M.Z. v. Tex. Dep’t of Fam. & Protective Servs.,
No. 03-13-00858-CV, 2014 WL 2191978, at *6 n.8 (Tex. App.—Austin May 22, 2014,
no pet.) (mem. op.) (holding that mother’s complaint about aggravated-circumstances
finding in temporary order was mooted by final termination order).
16
Even though L.S. involved the same trial judge as the one at issue here, L.S. is
easily distinguishable. In L.S., the Department’s termination petition was tried in a
bench trial before the former trial judge. Id. at *7 n.11. Here, in contrast, the
Department’s termination petition was tried before a jury presided over by the trial
judge for the 393rd District Court. Thus, while in L.S. we held that the former trial
judge’s actions and comments “probably resulted in the rendition of an improper
judgment,” we cannot say the same here. Id. at *21. Accordingly, Mother has not
preserved the complaints she makes on appeal. See Tex. R. App. P. 33.1(a)(1)(A); Dow
Chem., 46 S.W.3d at 241; Bushell, 803 S.W.2d at 712; L.S., 2017 WL 4172584, at *16.
We overrule Mother’s sole issue.
IV. CONCLUSION
Having overruled Mother’s sole issue, we affirm the termination order.
/s/ Dana Womack
Dana Womack
Justice
Delivered: January 27, 2022
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