NUMBER 13-21-00457-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
IN INTEREST OF D.T., A CHILD
On appeal from the 343rd District Court
of San Patricio County, Texas.
MEMORANDUM OPINION
Before Justices Tijerina, Silva, and Peña
Memorandum Opinion by Justice Tijerina
In this suit affecting the parent-child relationship (SAPCR), the trial court awarded
appellee Mother the person with the exclusive right to designate the primary residence of
her child D.T.1 By three issues, appellant Father argues that the trial court abused its
discretion by: (1) awarding Mother the person with the exclusive right to designate the
1 For the child’s privacy, we refer to the child by an alias and family members by their relationships
to the child. See TEX. R. APP. P. 9.8; see also TEX. FAM. CODE ANN. § 109.002(d).
primary residence; (2) improperly tasking an amicus attorney with duties of a “child
custody evaluator”; and (3) denying him a fair trial. We affirm.
I. BACKGROUND
On June 4, 2019, Father filed the original SAPCR requesting that he and Mother
be appointed joint managing conservators, that he be designated the person with the
exclusive right to designate the primary residence of D.T., and that the trial court order
Mother to pay child support. Mother responded, requesting an order of paternity, that she
be appointed sole managing conservator, that she be designated with the exclusive right
to designate the primary residence of D.T., and that the trial court order Father to pay
child support. The trial court issued several temporary orders, rendering 14-day
alternating possession periods.
On March 31, 2020, the trial court signed an agreed order appointing an amicus
attorney. On April 2, 2020, Father filed several motions: for a child custody evaluation, to
compel discovery, for sanctions, for modification of the temporary orders, and for a mental
health examination of Mother.
The next day, Mother filed a petition for writ of habeas corpus and writ of
attachment, claiming that Father was illegally restraining D.T. from Mother’s possession
and was threatening D.T.’s “physical and emotional well-being because [Father was]
establishing and encouraging parental alienation between [D.T.] and her mother.” Mother
subsequently filed a motion for child custody evaluation, a motion for mental health
examination, and a motion for modification of the temporary orders.
2
On April 17, 2020, Father submitted a request for a new parenting facilitator.
According to Father, their current parenting facilitator was “rude, argumentative, [and]
belittling.” Father requested the services of Kate Rodriguez, PhD, LPC-S—a licensed
professional counselor-supervisor. On May 12, 2020, the trial court signed an agreed
order appointing Dr. Rodriguez.
Father and Mother filed several motions for enforcement and motions to modify
temporary orders. On December 11, 2020, Father filed a motion for alcohol screening,
alleging Mother was an active alcohol drinker. Father further filed a motion to compel
discovery and for sanctions on December 18, 2020. Mother responded by filing another
petition for writ of habeas corpus and writ of attachment on December 28, 2020, alleging
Father was denying Mother access to D.T.
On January 19, 2021, Dr. Rodriguez filed her report as parenting facilitator. In her
report, Dr. Rodriguez stated that Mother has never missed a session with Dr. Rodriguez
while Father cancelled two sessions and did not attend two other sessions. According to
Dr. Rodriguez, Father stopped communicating with her in August 2020 until the trial court
prompted him to continue with parent facilitation. In the following session, Dr. Rodriguez
informed Father that his messages on Our Family Wizard to Mother appear “very hostile.”2
Father explained that he would not change his communication patterns with Mother.
In her report, Dr. Rodriguez further stated that Father accused Mother of alcohol
abuse, having unfit boyfriends, and lying, noting that Father “has admitted to having
2 Our Family Wizard is a “co-parenting” application for families living separately that is monitored
by the court system.
3
various private investigators and friends follow” Mother. Father informed Dr. Rodriguez
that he has Mother followed even when she is not in possession of D.T.3 Dr. Rodriguez
stated that Father accuses Mother of “delusions and paranoia” when Mother reports
feeling like she is being followed, even suggesting that Mother needed a psychological
evaluation. Dr. Rodriguez stated that Father “has made it clear that his goal is to catch
[Mother] in lies in order to obtain full custody of [D.T.].”
Dr. Rodriguez was concerned about Father’s constant harassment of Mother and
Mother’s consequential unwillingness to communicate with Father. If Mother did not
respond to Father immediately, Father repeatedly called and texted her. As a result,
Mother blocked Father from all communication except on Our Family Wizard. Dr.
Rodriguez stated that Father continued to harass Mother in “demeaning, controlling, and
threatening” ways.
In their joint sessions, Father “attempted to dominate” the sessions and would not
allow Mother to respond to his accusations. Dr. Rodriguez testified that she tried to stop
Father from preventing Mother from speaking; however, Father yelled at Dr. Rodriguez
accusing her of being on Mother’s side and said that it was the “women against” him
again. Father reportedly refused to let Mother speak, claiming, “all [Mother] does is lie!”
Because Father continually displayed hostility toward Mother and declined to stop that
behavior, Dr. Rodriguez believed he “ha[d] made it clear that he does not want to work
3 Father’s private investigator (PI) shared pictures of Mother with her male boss and vendors.
Father began calling Mother at her employment and accused her of having affairs.
4
on co-parenting, communication, or change any of his current behaviors.” Consequently,
Dr. Rodriguez ceased future sessions as they would not be beneficial.
Dr. Rodriguez believed that Father’s behavior indicated that he was not concerned
about what was best for D.T. In her professional opinion, she suggested that he have a
psychological evaluation due to his behaviors, intense anger, and stalking. Dr. Rodriguez
indicated that Father was unreasonable, even demanding that Dr. Rodriguez give him her
notes so that he could correct them because, although he had never seen them before,
he “knows” they contained false information. Additionally, Dr. Rodriguez shared that
Father recorded Dr. Rodriguez without her consent. Thus, Dr. Rodriguez no longer felt
comfortable continuing with future sessions until Father sought psychological evaluation.
On July 26, 2021, Father filed another motion to modify temporary orders, stating
that the present orders were no longer in the best interest of D.T. because Mother
consumed alcohol during her period of possession and moved D.T. “to a place that is not
suitable for young children.” In the motion, Father sought to be appointed sole managing
conservator and that Mother be given a standard possession order.
On August 4, 2021, Father filed a motion for enforcement of injunction and order
to appear, asserting that his private investigator (PI) revealed that Mother was “drinking
beer” at her friend’s house. Father attached his PI’s affidavit, which allegedly confirmed
that Mother was drinking on June 26, 2021, July 20, 2021, and July 27, 2021. Father filed
another motion for enforcement of possession or access and order to appear, asserting
that Mother did not make D.T. available for Facetime on at least four occasions. Father
requested that Mother be held in criminal contempt, jailed for up to 180 days for each
5
violation, fined in the amount of $500 for each violation, and placed on community
supervision for a period of ten years.
The trial court held a final hearing on October 28, 2021. At the hearing, Mother
testified that she then-resided in Port Mansfield, and she lived in a home with her
stepfather and D.T.
Mother further testified that she was then-employed as a manager at a restaurant,
and she also ran a catering business on the side. Prior to her employment as manager,
she testified to her previous employment history as follows: (1) she was employed at
another restaurant, but she had to cease employment because it interfered with her
catering business; (2) she worked at Port Mansfield Club for three weeks, but her position
was temporary to help renovate the establishment after a hurricane and freeze; (3) she
worked in Austin as an event manager, but it only lasted five months due to COVID; (4)
she worked at a retirement home previously, but she stopped working there to become
the event manager in Austin; and (5) she worked for Amazon prior to working at the
retirement home.
In a two-and-a-half-year period (since the inception of this case), Mother stated
that she has had three boyfriends, but D.T. only met one. Mother admitted that she “might
have had a beer or two” in violation of the court’s temporary order during the periods of
possession of D.T.
Mother stated that Father rents cars to stalk her, takes pictures of her, constantly
harasses her, and tracks her. “It never stops,” she said. Mother stated that she is fearful
of Father; he has showed up to her employment “probably three times” and jeopardized
6
her employment. She explained that Father has not changed his co-parenting, even after
using the parenting facilitators. Father sends her “about 20 messages a day still[;] . . . one
minute [she is] trash and the next minute [Father] loves [her] and he wants [her] to come
home. It never stops.”
Father testified that he lives in a home with his son and D.T.4 He admitted he
initiates communication with Mother daily, even on days that he has possession of D.T.
because he feels like Mother is dishonest with him. Father stated that Mother is a good
parent, but his primary concern is that Mother drinks and drives with D.T., which he
learned from his PI. According to Father, he is concerned with Mother not being truthful
to him. For this reason, he has hired two PIs. Father admitted the PIs have followed
Mother even when she is not in possession of D.T.
Father informed the court that his home is better for D.T. because it is stable; D.T.
would be in the same bed every night; D.T. would follow the same structure; and D.T.
would reside with her half-brother. He stated that when he has D.T., he takes an entire
week at a time off work.
The amicus attorney asked Father whether he could allow Mother to parent during
her week without Father interfering and sending Mother messages:
[Amicus]: [I]f that was an injunction in saying that you’re going to have
to trust the good Lord and the mother that she is going to care
for [D.T.] during that time and she likewise is going to have to
trust that you’re going to do the right thing for [D.T.] during the
time you have her, and unless there is an emergency, y’all
aren’t going to communicate, is that a possibility with you?
4 Father explained that his son had not seen his biological mother in over eleven years. According
to Father, his son’s biological mother suffered from substance abuse.
7
[Father]: Yeah, I could not text her. But do I believe that? No. I mean,
just because I know.
The PI testified that on at least three occasions, he followed Mother and observed
her at her friends’ get-togethers. It appeared to him that Mother was drinking because
there was alcohol and cigarettes within her possession and directly in front of her. On at
least two of those occasions, he stated that he saw D.T. with Mother at the get-togethers.
N.S., Mother’s mother, testified that Mother was a great parent. N.S. further stated
that Father harassed N.S. by calling her, texting her, and messaging her on Facebook,
such that Mother blocked Father from all communication. N.S. stated that Mother was not
an alcoholic and had never seen Mother display inappropriate behavior. Specifically, N.S.
stated that Mother has never acted inappropriately in front of D.T.
The amicus attorney testified that the problem here is “an absolute dysfunctional
co-parenting.” The amicus attorney opined that Father should not have the exclusive right
to designate primary residence of D.T. because in her opinion he uses this power as a
weapon sometimes.
At the conclusion of the hearing, the trial court appointed Father and Mother joint
managing conservators. The trial court awarded Mother the person with the exclusive
right to designate the primary residence of D.T. and stated, “I don’t know how long she is
going [to] stay with you, [Mother], because I don’t know that you’ll be able to hold it
together because you are on a thin line in my opinion . . . . [I]f not I know [Father] can do
a great job with that.” Father filed a motion for reconsideration on November 18, 2021,
requesting that the trial court award Father and Mother a one “week-on, week-off,”
possession schedule.
8
On December 2, 2021, the trial court issued its final order in accordance with its
ruling on October 28, 2021, appointing Father and Mother joint managing conservators
and appointing Mother the person with the exclusive right to designate the primary
residence of D.T. Father appealed.
II. STANDARD OF REVIEW
In determining issues of conservatorship and possession and access, the primary
consideration is always the best interests of the child. See TEX. FAM. CODE ANN.
§ 153.002; Lenz v. Lenz, 79 S.W.3d 10, 14 (Tex. 2002). We review a trial court’s decision
to modify an order regarding conservatorship or the terms of possession of and access
to a child under an abuse of discretion. See Baltzer v. Medina, 240 S.W.3d 469, 474–75
(Tex. App.—Houston [14th Dist.] 2007, no pet.). A trial court abuses its discretion if it acts
arbitrarily, unreasonably, or without reference to any guiding rules or principles. See
Flowers v. Flowers, 407 S.W.3d 452, 457 (Tex. App.—Houston [14th Dist.] 2013, no pet.).
“Under an abuse-of-discretion standard, legal and factual insufficiency are not
independent grounds of error.” Id. Rather, they “are relevant factors in assessing whether
the trial court abused its discretion.” Id. “There is no abuse of discretion as long as some
evidence of a substantive and probative character exists to support the trial court’s”
exercise of its discretion. Id.
III. EXCLUSIVE RIGHT TO DETERMINE PRIMARY RESIDENCE
By his first issue, Father argues that the trial court abused its discretion by granting
Mother the person with the exclusive right to determine D.T.’s residence. Specifically,
9
Father argues the trial court supported its verdict with hearsay evidence.5 Without getting
into the merits of this issue and without considering the complained-of evidence, we look
to other evidence before the trial court—notwithstanding Father’s hearsay objection—to
determine whether the trial court abused its discretion by granting Mother the person with
the exclusive right to determine D.T.’s residence.
A. Applicable Law
The best interest of the child is of paramount importance in making any custody
determination. See TEX. FAM. CODE ANN. § 153.002; In re V.L.K., 24 S.W.3d 338, 342
(Tex. 2000). A court may use the following non-exhaustive list of factors to determine the
child’s best interests: (1) the desires of the child; (2) the emotional and physical needs of
the child now and in the future; (3) the emotional and physical danger to the child now
and in the future; (4) the parental abilities of the individuals seeking custody; (5) the
programs available to assist these individuals to promote the best interest of the child; (6)
the plans for the child by the individuals seeking custody; (7) the stability of the home; (8)
the acts or omissions of the parent that may indicate that the existing parent-child
relationship is not proper; and (9) any excuse for the acts or omissions of the parent.
5 Father complains the following evidence constitutes hearsay. Father admitted that he has three
Facebook profiles under the name S.E. Although he regularly messaged his ex-wife on Facebook, Father
did not consider electronic communication as a form of harassment. The trial court asked, “I know you
haven’t talked to [your ex-wife], but have you ever thought that maybe your messaging or electronic
communication [on Facebook] may be seemed as harassing to [your ex-wife]? Have you ever thought about
that?” Father responded, “No.” The trial court replied, “Okay. I [know] that was the answer[] because he
doesn’t think that. That is part of our problem.”
At the conclusion of the hearing, the trial court stated that it was going to “place D.T. with the parent
I feel like that will facilitate the relationship with the other [parent,] and that is [Mother].” The trial court
explained that Father “has done it with [his ex-wife]. He doesn’t facilitate. As a parent you’ve got to make it
happen. That is just how I feel about it.”
10
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976); see In re C.H., 89 S.W.3d 17, 27
(Tex. 2002) (providing that proof of the best interest of a child is not limited to the Holley
factors, nor do all the factors apply in every case).
B. Discussion
In challenging the trial court’s order granting Mother the person with the exclusive
right to determine D.T.’s primary residence, Father points to Mother having moved seven
different times over a two-and-a-half-year period, holding multiple jobs for less than six
months, having different “boyfriends,” and violating the trial court’s order by not providing
the amicus attorney with the names of D.T.’s caretakers and drinking alcohol while in
possession of D.T.
Mother explained that she was living in Port Mansfield prior to her involvement with
Father and owned a catering business there for at least twelve years. She and D.T.
subsequently moved to Austin with N.S. when Mother’s relationship with Father ended.
The trial court inquired what Mother’s long-term plans were as far as living arrangements.
Mother stated that her stepfather is battling stage four cancer and is currently in hospice
care. According to Mother, the home she currently lives in will be split between her
stepfather’s children, including her. “[W]e have already all agreed that after he passes—
and we all get along . . . that [D.T.] and I can stay there. [The other children] live
elsewhere . . . . [D.T.] and I are welcome to stay in the house,” and it would be Mother’s
responsibility to maintain the house, but taxes and insurance would be split among all of
stepfather’s children. Mother explained that D.T. was already enrolled in a relatively small
school.
11
Father informed the trial court that Mother “is a good mother,” but “she just does
certain things that worry” him like drinking and driving. However, Mother denied drinking
and driving with D.T. During a two-and-a-half-year period, Mother has had “one or two
beers” while D.T. was in her possession. Mother was then presented with photos of her
at friends’ gatherings with alcohol in front of her, but Mother denied that she was drinking
on those occasions. In fact, Mother stated that D.T. did not even attend one of those get-
togethers. Regarding Father’s allegations about Mother’s boyfriends, Mother stated that
D.T. only met one person.
N.S. testified that Mother “is a great mom, very caring, loving, concerned over
anything that might come up.” N.S. stated there were no concerning behaviors of Mother.
The amicus attorney testified that she has seen Mother’s home: “There is a bed, there
[are] toys, and there is everything there for the young girl.”
On the other hand, Dr. Rodriguez, Mother, N.S., the amicus attorney, and Father
elucidated Father’s concerning behavior as it related to his ability to coparent. Mother
stated that Father stalks her, takes pictures of her, and that she is the subject of constant
harassment. Father testified that although Mother is not receptive to having conversations
with him, he continues to message her daily “[b]ecause it has got [to] change sooner or
later to get along or something.” N.S. stated that Father harassed her, causing her to
block him from her phone and on social media. Dr. Rodriguez stated that she felt
threatened by Father, refused to continue her role as parenting facilitator, and
discontinued her services. Dr. Rodriguez further opined that Father was not interested in
what was best for D.T., he was not interested in becoming a better parent, and he
12
continued to be hostile with Mother. When the amicus attorney questioned whether Father
could refrain from messaging Mother daily for the sake of co-parenting and allow Mother
to parent, Father stated he did not believe that he could.
The trial court was in the best position to observe the demeanor and personalities
of the witnesses, and we defer to the trial court’s determinations regarding the credibility
of the witnesses. See City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005). We can
infer the trial court credited Mother’s testimony, and we conclude that there is some
evidence of a substantial and probative character to support the trial court’s decision that
it was in the best interest of D.T. to appoint Mother the person with the exclusive right to
designate D.T.’s primary residence. See Flowers, 407 S.W.3d at 459; In re K.L.W., 301
S.W.3d 423, 428 (Tex. App.—Dallas 2009, no pet.) (“In determining which conservator
will have exclusive right to establish primary residence under [§] 153.134(b), the trial court
is vested with broad discretion.”). We therefore find no abuse of discretion. See Flowers,
407 S.W.3d at 459. We overrule Father’s first issue.
IV. AMICUS ATTORNEY
By his second issue, Father argues that “the trial court abused its discretion when
it tasked [the amicus attorney] with duties that qualified her as a child custody evaluator.”
Father does not elaborate what specific duties the trial court tasked the amicus attorney
to perform that are objectionable, and Father concedes that “the order is silent.”
To present a complaint for appellate review, the record must show that (1) the
complaint was presented to the trial court by a timely request, objection, or motion stating
the specific grounds for the desired ruling if the specific grounds are not apparent from
13
the context and (2) the trial court ruled on the request. TEX. R. APP. P. 33.1(a); Bush v.
Bush, 336 S.W.3d 722, 729 (Tex. App.—Houston [1st Dist.] 2010, no pet.). To be
considered timely, the request, objection, or motion generally must be made at the earliest
possible opportunity, thereby allowing the trial court an opportunity to cure the error. See
Lake v. Premier Transp., 246 S.W.3d 167, 174 (Tex. App.—Tyler 2007, no pet.).
Here, the trial court entered an agreed order appointing the amicus attorney on
March 31, 2020, “to assist the Court in protecting the best interest of” D.T., to “take any
action consistent with the child’s interests that [the amicus attorney] considers necessary
to expedite the proceedings,” and to “advocate the best interests of the child after
reviewing the facts and circumstances of the case.” See TEX. FAM. CODE ANN.
§ 107.001(1) (providing that an “amicus attorney” is “an attorney appointed by the court
in a suit, other than a suit filed by a governmental entity, whose role is to provide legal
services necessary to assist the court in protecting a child’s best interests rather than to
provide legal services to the child”). The trial court specifically tasked the amicus attorney
with the duties as outlined in §§ 107.003 and 107.005. See id. §§ 107.003 (“Powers and
Duties of Attorney ad Litem for Child and Amicus Attorney”), 107.005 (“Additional Duties
of Amicus Attorney”). The amicus attorney appeared throughout this case. See O’Connor
v. O’Connor, 245 S.W.3d 511, 515 (Tex. App.—Houston [1st Dist.] 2007, no pet.)
(providing that the amicus attorney is appointed to assist the court; it is not to represent
the child or either of the parents). Father did not object or file any motions to disqualify
the amicus attorney based on her alleged role as child custody evaluator.6 See Gabel v.
6 In fact, Father filed a motion requesting that the trial court appoint a child custody evaluator on
14
Gabel-Koehne, 649 S.W.3d 590, 603 (Tex. App.—Houston [1st Dist.] 2022, no pet.)
(“Because Haden did not raise his objection until after the final hearing had occurred and
the amicus attorney had already completed her work on the case, the objection was not
timely.”). At trial, the amicus attorney testified without objection. See id. Furthermore,
Father did not file any post-judgment motion complaining of the amicus attorney’s alleged
dual role. See Bush, 336 S.W.3d at 729 (holding that an objection to the scope of amicus
attorney’s appointment made in a motion for new trial failed to preserve complaint for
appeal). Therefore, this issue has not been properly preserved for appeal. See id. (“Even
if we were to take Tracy’s argument in her motion for new trial as an objection to the trial
court’s appointment of the amicus attorney in a limited scope, this objection came over a
year and a half after the trial court appointed the amicus attorney with those limitations
specifically stated without any objection.”). We overrule his second issue.
V. FAIR AND IMPARTIAL TRIAL
By his third issue, Father argues that the trial court denied him “a fair trial when it
did not allow [him] to present a defense and by the Court’s deep-seated antagonism
toward [him].”
A. Applicable Law
Due process requires a neutral and detached judge. See Gagnon v. Scarpelli, 411
U.S. 778, 786 (1973); Ellason v. Ellason, 162 S.W.3d 883, 887 (Tex. App.—Dallas 2005,
no pet.) (providing that the parties have a right to a fair trial before an impartial judge).
We presume the trial judge was neutral and detached “in the absence of a clear showing
April 1, 2020.
15
to the contrary.” Earley v. State, 855 S.W.2d 260, 262 (Tex. App.—Corpus Christi–
Edinburg 1993), pet. dism’d, improvidently granted, 855 S.W.2d 260 (Tex. Crim App.
1994). The opinions a judge forms during a trial do not call into question a judge’s bias or
partiality “unless they display a deep-seated favoritism or antagonism that would make
fair judgment impossible.” Liteky v. United States, 510 U.S. 540, 555 (1994). A judge’s
criticism, disapproval of, or even hostility towards counsel, the parties, or their cases are
not behaviors that do not ordinarily support a bias or partiality challenge. Id.
“[E]xpressions of impatience, dissatisfaction, annoyance, and even anger,” do not
establish bias or partiality. Id. at 555–56. “A judge’s ordinary efforts at courtroom
administration—even a stern and short-tempered judge’s ordinary efforts at courtroom
administration—remain immune.” Id. at 556.
The trial court has broad discretion over the conduct of a trial and may properly
intervene to maintain control in the courtroom, to expedite the trial, and to prevent what it
considers to be a waste of time. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 240 (Tex.
2001) (per curiam). The trial judge has a duty to direct competent and material questions
to a witness to clarify testimony or to elicit testimony that has not otherwise been brought
out, and such practice is especially proper in a bench trial where the best interests of
children are at issue. Sklar v. Sklar, 598 S.W.3d 810, 825 (Tex. App.—Houston [14th
Dist.] 2020, no pet.); see also In re A.T.M., No. 13-21-00008-CV, 2021 WL 2584402, at
*17 (Tex., App.—Corpus Christi–Edinburg June 24, 2021, no pet.) (mem. op.) (citing
Trahan v. Trahan, 732 S.W.2d 113, 114–15 (Tex. App.—Beaumont 1987, no writ))
16
(holding the right to an impartial judge was not violated where the trial court asked more
questions than either of the attorneys)).
B. Discussion
Father complains for the first time on appeal of statements that occurred at a writ
of attachment hearing on January 15, 2021. Father cites instances where he alleges that
the trial court interrupted him, prohibited him from elaborating or from “present[ing] his
side,” and referenced Dr. Rodriguez’s report, which Father asserts is an “outside report.”
However, no objection was made to these exchanges. See TEX. R. APP. P. 33.1(a); In re
L.M.I., 119 S.W.3d 707, 708 (Tex. 2003) (“[A]dhering to our preservation rules [in a
parental termination case] isn’t a mere technical nicety; the interests at stake are too
important to relax rules that serve a critical purpose.”); In re A.L.E., 279 S.W.3d 424, 431
(Tex. App.—Houston [14th Dist.] 2009, no pet.) (“Requiring parties to preserve their
complaints in family-law cases furthers the legislative intent that such cases be resolved
expeditiously and with finality.”).
Additionally, Father alleges that the trial court denied him an opening statement
and demonstrated “deep[-]seated antagonism” toward him when it asked Mother whether
Father was still “hypervigilant” at the final hearing. However, Father did not request an
opportunity to make an opening statement, and he did not object to the trial court’s inquiry.
See TEX. R. APP. P. 33.1(a); In re L.M.I., 119 S.W.3d at 708; see also In re of A.C.R., No.
11-22-00358-CV, 2023 WL 3872722, at *5 (Tex. App.—Eastland June 8, 2023, no pet.)
(holding that appellant waived a complaint that the trial court erred by not allowing him an
opportunity to make an opening statement at a bench trial where appellant did not request
17
an opportunity to make an opening statement); In re G.M.K., No. 13-22-00016-CV, 2023
WL 5122524, at *6 (Tex. App.—Corpus Christi–Edinburg Aug. 10, 2023, no pet.) (“Jared
failed to object to the trial court’s comments or questions and does not attempt to argue
why they were incurable or would excuse his failure to preserve error,” and “does not
argue that preservation was unnecessary because the error was fundamental.”).
After considering the entire record, we cannot conclude that the trial court
demonstrated a “deep-seated favoritism or antagonism that would make fair judgment
impossible.” See Liteky, 510 U.S. at 555. Father’s complaints involve the trial court’s
skepticism as to Father’s behavior and his unwillingness to change his co-parenting
habits.7 The trial court’s statements about Father concern “routine trial administration
efforts,” “ordinary admonishments (whether or not legally supportable) to counsel,” “and
all occurred in the course of judicial proceedings, and n[one] . . . displayed deep-seated
[nor] unequivocal antagonism that would render [a] fair judgment impossible.” Id. at 556.
In fact, the trial court acknowledged, “[Father] is the best father in the entire world. It’s
how he handles the relationship with [Mother] that is the causing the problems.” The trial
court stated that it wanted Father “to have time with his child. He loves his child. He’s not
a bad parent. He just cannot co-parent. And until he learns to co-parent, his time is going
7 In the complained-of exchanges, the trial court stated that “whenever a parent starts controlling—
trying to control the other by keeping a child from a parent, that is a no-no in my court, [Father].” The trial
court stated that it was “not going to put up with it” and was “irritated in this case” when it saw how the
parties treated each other. “And that’s my number one pet peeve,” it explained. The trial court elaborated
that it had “severe concerns of allowing [Father] to have the child for a[]while.” The trial court continued:
“[Father] is overprotecting. He’s going to have to learn to ratchet that back. And me giving him an order that
he doesn’t get to see his kid isn’t going to help that. He needs to have counseling and he needs to address
those issues.” The trial court further explained that Father needed to learn to put his fears in a healthy
perspective.
18
to be limited to this child. I cannot have this happening. It’s detrimental to that child[,] and
she is my number one interest.”8
Lastly, Father complains the trial court modified its temporary order “unilaterally.”
However, “judicial rulings alone almost never constitute a valid basis for a bias or partiality
motion.” Id. at 555. After applying the applicable principles to this case and carefully
examining the trial court’s comments and allegedly extrajudicial consideration in the
context of the entire record, we conclude there is no evidence of judicial bias. Id. Instead,
the trial court exercised its broad discretion to maintain control over highly emotional and
contentious proceedings. See id. Accordingly, we overrule Father’s last issue.
VI. CONCLUSION
We affirm the judgment of the trial court.
JAIME TIJERINA
Justice
Delivered and filed on the
21st day of September, 2023.
8 We note that during this exchange, Father interrupted the trial court and the amicus attorney, and
Father’s counsel stated, “[Father,] if you could be quiet, that would be great.”
19