                                                                                                  Filed
                                                                                            Washington State
                                                                                            Court of Appeals
                                                                                             Division Two

                                                                                               July 3, 2018


       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                           DIVISION II
    In re the Matter of the Welfare of:                                No. 50153-8-II


    A.L.B.-Y.
                                                                 UNPUBLISHED OPINION




          SUTTON, J. — Joseph Rowley appeals the trial court’s order terminating his parental rights

to ALBY. Rowley argues that the trial court judge violated the appearance of fairness doctrine.

We disagree. Accordingly, we affirm.

                                                FACTS

          Charmaine Martin and Rowley are the parents of ALBY. Thaddeus Martin, ALBY’s step-

father, filed a petition to adopt ALBY and terminate Rowley’s parental rights. Charmaine1 joined

in the petition. Rowley contested the petition.

          The morning of trial, while waiting for the defendant to be available telephonically from

prison, the trial court made the following comments to the attorneys:

          [COURT]: And I guess I would be interested Mr. Owen-Evans in some kind of an
          offer of proof as well as to what Mr. Rowley is going to testify to. As I’ve looked
          over this file now twice -- not only this file, but his criminal file -- and given the
          parameters of his criminal file, frankly I’m not sure why we’re here.

          ...


1
 Parties with the same last name are referred to by their first names for clarity. We intend no
disrespect.
No. 50153-8-II


         [COURT]: -- but I’m just saying his judgment and sentence precludes any contact
         with minors and there are no exceptions.

         ...

         [COURT]: Right. But if they can be changed, they should have been changed
         before he came to court to ask that his parental rights not be terminated. That would
         be my position, so I’m just -- I’m just a little unclear as to what his ultimate position
         is going to be.

         ...

         [COURT]: But -- okay. I’m not going to belabor this discussion, I just was curious
         as to, frankly, why we were here. The discussion before you all entered was that
         Mr. Rowley is not available until 10:30 and therefore I am not going to get started
         until he is available. He’s the objecting party.

Verbatim Transcript of Proceedings (9/9/16; 9/23/16; 3/2/17; 3/3/17; 3/10/17; 3/24/17) (VTP) at

20-22.

         Charmaine, Thaddeus, and Rowley all testified at trial. The court-appointed guardian ad

litem also testified. When the trial court admitted exhibits establishing Rowley’s criminal

convictions, the trial court also disclosed, “I will tell you that based on having this case in trial

before me, I’ve already looked at these documents because I felt that it was necessary in order to

go forward.” VTP at 81.

         The trial court terminated Rowley’s parental rights as to ALBY. Approximately a month

later, the trial court entered a decree of adoption. Rowley appeals.




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No. 50153-8-II


                                            ANALYSIS

       Rowley argues that the trial court violated the appearance of fairness doctrine because the

trial court had already determined termination was appropriate before the trial began.2

Specifically, Rowley argues that the trial court’s comments prior to the trial and its review of his

criminal file are evidence that the trial court was not acting impartially and had prejudged the case.

Here, Rowley has failed to present sufficient evidence to overcome the presumption that the trial

court performs its functions regularly and properly without bias or prejudice. Therefore, we affirm.

       Under the appearance of fairness doctrine, a judge must recuse himself or herself if the

facts suggest the judge is actually or potentially biased. Tatham v. Rogers, 170 Wn. App. 76, 93,

283 P.3d 583 (2012). “A judicial proceeding satisfies the appearance of fairness doctrine only if

a reasonably prudent and disinterested person would conclude that all parties obtained a fair,

impartial, and neutral hearing.” Tatham, 170 Wn. App. at 96. The test for determining whether a

judge’s impartiality might reasonably be questioned is an objective test and assumes that a

reasonable person knows and understands all of the relevant facts. Tatham, 170 Wn. App. at 96.

       Evidence of actual bias is not required to establish an appearance of fairness violation;

evidence of potential bias is enough. Tatham, 170 Wn. App. at 95. However, we presume that the

judge performed his or her “functions regularly and properly without bias or prejudice.” Tatham,

170 Wn. App. at 96. Therefore, the party asserting the appearance of fairness violation “‘must

produce sufficient evidence demonstrating bias, such as personal or pecuniary interest on the part




2
  Thaddeus argues that Rowley waived his appearance of fairness claim by failing to raise it at the
trial court. However, we exercise our discretion under RAP 2.5(a) and address this case on the
merits.


                                                  3
No. 50153-8-II


of the decision maker; mere speculation is not enough.’” Tatham, 170 Wn. App. at 96 (quoting In

re Pers. Restraint of Haynes, 100 Wn. App. 366, 377 n. 23, 996 P.2d 637 (2000)).

        Here, the trial court’s comments are not sufficient evidence to overcome the presumption

that the trial court acted without bias or prejudice. Rowley has not presented any evidence to

suggest that the trial court had any reason to be biased or prejudiced against him. Instead, he only

speculates that the trial court had already decided the case prior to trial. A reasonable person would

not conclude that the trial court had prejudged the case to the extent that Rowley was unable to

obtain a fair, impartial, and neutral hearing. Therefore, Rowley has failed to meet his burden to

present evidence sufficient to overcome the presumption that the trial court acted without bias or

prejudice in presiding over his trial. Accordingly, we affirm.

                                         ATTORNEY FEES

        Thaddeus requests attorney fees on appeal under RAP 18.9.               Thaddeus argues that

Rowley’s appeal is frivolous.3

        RAP 18.9 allows us to award attorney fees and costs as sanctions for filing a frivolous

appeal. “[A]n appeal is frivolous if there are no debatable issues upon which reasonable minds

might differ, and it is so totally devoid of merit that there was no reasonable possibility of reversal.”

Streater v. White, 26 Wn. App. 430, 435, 613 P.2d 187 (1980).

        Here, Rowley’s appeal fails because he did not present sufficient evidence to overcome the

presumption that the trial court acted without bias or prejudice. However, his claims are not so



3
  Rowley also asks that we exercise our discretion and not impose appellate costs. If a cost bill is
filed, Rowley may then object, and a commissioner of this court may determine whether
imposition of costs is warranted. RAP 14.2. Accordingly, we do not address whether to impose
appellate costs.


                                                   4
No. 50153-8-II


devoid of merit that we consider his appeal frivolous. Accordingly, we decline to award attorney

fees and costs as sanctions under RAP 18.9.

        We affirm the trial court’s order terminating Rowley’s parental rights as to ALBY and deny

Thaddeus’s request for attorney fees and costs as sanctions under RAP 18.9.

        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,

it is so ordered.



                                                    SUTTON, J.
 We concur:



 JOHANSON, P.J.




 BJORGEN, J.




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