      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



In re the Dependency of:                              No. 72164-0-1
                                                      (consolidated with No. 72165-8-1)
G.B. (DOB: 12-23-08); and
A.B. (DOB: 5-5-11),                                   DIVISION ONE

                     Minor Children.

STATE OF WASHINGTON,
DEPARTMENT OF SOCIAL AND                              UNPUBLISHED                               o
                                                                                          too
HEALTH SERVICES,
                                                      FILED: April 27, 2015
                     Respondent,                                                    SO    o9
                                                                                          -V) '-r.
                                                                                    ro


                                                                                         ^"°rn

KEVIN BANKS,
                                                                                  o      CD —
                                                                                  CO     3C<
                     Appellant.



       Cox, J. — Kevin Banks appeals a juvenile court order finding his

daughters, G.B. and A.B., dependent. Based on certain remarks made by the

court and the court's active participation in the dependency proceedings, Banks

contends that the juvenile court judge exhibited bias and lack of impartiality,

depriving him of a fair hearing. Because this record is devoid of evidence

supporting these claims, the findings of fact are either unchallenged verities on

appeal or are supported by substantial evidence, and the findings support the

conclusions of law, we affirm.
No. 72164-0-1 (consolidated with No. 72165-8-l)/2


         Kevin Banks and Leah Banks are the parents of two girls, A.B., born in

2011 and G.B., born in 2008. Leah is also the mother of A.U., a daughter born in

2005.1

         On the evening of December 29, 2013, A.U. ran to a neighbor's home in a

frantic state seeking help because her father was choking her mother. A.U.

demonstrated the choking. The neighbor called 911. An officer responded and

noted visible injuries, but Leah refused medical attention, denied that Kevin

caused the injuries, and claimed she caused the marks on her neck herself. By

the time the police officer responded, Kevin had already fled the scene.

         Following this incident, a social worker employed by Child Protective

Services (CPS) investigated. She attempted to speak to Kevin and Leah, but

both refused. The social worker reviewed the parents' criminal history, CPS files,

and various police reports. She also spoke to A.U. at school, to the neighbor

who called 911, and to some maternal relatives. Based on this investigation, she

filed a dependency petition on behalf of the Department of Social and Health

Services (the Department).

         At the 72-hour shelter care hearing, Police arrested Leah on an

outstanding warrant. The court found there was a basis for shelter care, but

determined that the children could remain in the home with Leah upon her

release from jail with services in place. Accordingly, the court ordered placement

with the mother upon various conditions, including the condition that the father

move out of the family home and have no contact with the family, apart from


         1 Because the parents share the same last name, we refer to them by their
first names for clarity.
                                          2
No. 72164-0-1 (consolidated with No. 72165-8-l)/3


supervised visitation. The court ordered that violation of the conditions would

result in removal of the children and placement in licensed care.

       In March 2014, after speaking with the two older children at school, the

appointed guardian ad litem (GAL) reported that the father was present in the

home in violation of the shelter care order and that another possible domestic

violence incident had occurred wherein Kevin threatened to kill Leah with a knife

in front of the children. The social worker went to the home following these

disclosures and found Kevin there. When the social worker returned to the home

a second time, Leah and the children were gone, and Kevin claimed not to know

where they were.

       Leah and the children did not return home and the two older children did

not attend school for the next few days. Leah then left the three children in the

care of her sister. The Department eventually moved the children to foster care

placement in May 2014, a few weeks before the dependency hearing.

       Kevin and Leah contested the dependencies. The juvenile court held a

dependency fact-finding hearing over the course of 10 days in May 2014. The

court considered the testimony of more than 20 witnesses, including the parents,

social workers, police officers, the neighbor, the mother of two of Kevin's older

children, and the GAL.

       The testimony established that Kevin and Leah began dating in 2008 and

married in 2011. Both denied the existence of any domestic violence in the

relationship. Leah previously admitted, however, that domestic violence

occurred earlier in the relationship. Both parents acknowledged that police had
No. 72164-0-1 (consolidated with No. 72165-8-l)/4


responded to disturbance calls at the family home on numerous occasions.

Kevin estimated that the police had been to the home approximately 8 to 10

times.


         Kevin had a significant criminal history involving domestic violence that

included five convictions for domestic violence assault against five different

women between 1996 and 2007 and a prior domestic violence felony conviction

for violating a no-contact order. At least two women had obtained protection

orders against Kevin. At the time of the dependency hearing, a protection order

prohibited Kevin's contact with two of his older children from a prior relationship.

Kevin could not remember participating in domestic violence treatment in the

past.

         Kevin testified about a 2007 medical incident that was "like a stroke." He

said that after surgery, he remained in a coma for six weeks. Kevin testified that

this medical event left him disabled and resulted in significant memory loss. He

presented no evidence, apart from his testimony, to substantiate the nature and

extent of his medical issues. Kevin testified that he could not remember any

significant conduct that resulted in prior arrests and convictions.

         A Pierce County court declared Leah's oldest daughter, A.U., dependent

in 2007 due to Leah's substance abuse and neglect. The Department placed

A.U. in the care of a relative for two years, but eventually returned her to Leah's

care after she completed inpatient and outpatient drug treatment. After a

termination trial, the dependency was dismissed in 2010.
No. 72164-0-1 (consolidated with No. 72165-8-l)/5


      Police officers described encounters with the Bankses following

disturbance calls between 2010 and 2013. On one occasion in 2010, Leah

provided a written statement to the police. She described Kevin as "aggressive

and violent," said Kevin called her a "stupid dumb ass bitch" and threw a remote

control at her. Leah also said Kevin refused to let her leave the house and she

feared for her life. There were times when Leah had observable injuries or when

she initially said Kevin used violence against her, but then recanted. An August

2013 incident also involved A.U. appearing at the neighbor's door after midnight

crying and reporting that her mother was on the floor bleeding and needed help.

The officer who responded to the August 2013 911 call observed injures to

Leah's head and hand. Police arrested Kevin only on that single occasion, but

he was not charged. There was also evidence of the presence of alcohol and a

marijuana grow operation in the home that was accessible to the children and

evidence of the parents' access to weapons.

      At the conclusion of the fact-finding hearing, the trial court found G.B. and

A.B. dependent as to Kevin as defined in RCW 13.13.030(b) and (c) because of

his "repeated commission of domestic violence against the mother in the

presence of the children" and because of his status as an "untreated domestic

violence perpetrator." The court also found all three children dependent as to

Leah under RCW 13.34.030(c) but stated that this finding was "time specific"

because "no one has made it safe for the mother to raise the children." The court

ordered placement of the children with Leah and entered an order prohibiting

Kevin from having contact with the family and from being present in or near the
No. 72164-0-1 (consolidated with No. 72165-8-l)/6


family home. The court ordered Kevin to complete domestic violence treatment

and ordered assessment and counselling for the three children. Kevin appeals.

                       LACK OF IMPARTIALITY AND BIAS

       Kevin claims the juvenile court judge lacked impartiality and was biased

against him. Accordingly, he claims he was deprived of a fair hearing. We

disagree.

       Under the appearance of fairness doctrine, a judicial proceeding is
       valid only if a reasonably prudent, disinterested observer would
       conclude that the parties received a fair, impartial and neutral
       hearing. "The law goes farther than requiring an impartial judge; it
       also requires that the judge appear to be impartial.'" "Evidence of a
       judge's actual or potential bias must be shown before an
       appearance of fairness claim will succeed." Under the Code of
       Judicial Conduct, designed to provide guidance forjudges,
       "'OJudges should disqualify themselves in a proceeding in which
       their impartiality might reasonably be questioned.'"121

       The primary purpose of a dependency hearing "is to allow courts to order

remedial measures to preserve and mend family ties."3 Unlike a parental

termination proceeding, a dependency hearing is "'a preliminary, remedial,

nonadversary proceeding' that does not permanently deprive a parent of any

rights.'"4 As the legislature has determined, in balancing the legal rights of

parents against the rights of the child, the rights and safety of the child is the

paramount concern.5

       RCW 13.34.030(6) provides, in relevant part, that a dependent child is any
child who:


       2 State v. Gamble. 168 Wn.2d 161, 187-88, 225 P.3d 973 (2010).
       3 In re Dependency of T.L.G.. 126 Wn. App. 181, 203, 108 P.3d 156
(2005).
       4 In re Welfare of Key. 119 Wn.2d 600, 609, 836 P.2d 200 (1992) (quoting
In re Dependency of A.W.. 53 Wn. App. 22, 30, 765 P.2d 307 (1988)).
       5 RCW 13.34.020; In re Dependency of Schermer, 161 Wn.2d 927, 942,
169 P.3d 452 (2007).
No. 72164-0-1 (consolidated with No. 72165-8-l)/7



       (b) Is abused or neglected as defined in chapter 26.44 RCW by a
       person legally responsible for the care of the child; [or]

       (c) Has no parent, guardian, or custodian capable of adequately
       caring for the child, such that the child is in circumstances which
       constitute a danger of substantial damage to the child's
       psychological or physical development.

       We will affirm an order of dependency so long as substantial evidence

supports the trial court's findings of fact and the findings support the conclusions

of law.6 Unchallenged findings are verities on appeal.7

       In this appeal, Kevin does not challenge the court's determination that, by

a preponderance of the evidence, the children meet at least one of the statutory

definitions of dependency under RCW 13.34.030.8 In particular, he does not

challenge the evidence supporting the court's findings that he repeatedly

committed acts of domestic violence against Leah in the presence of the children

and that the children were traumatized as a result.

       Kevin assigns error to only one portion of a single finding, Finding of Fact

35, which states: "[t]he court cannot say that the father is a good father because

no domestic violence perpetrator can be a good parent or a good husband."9

However, the Department presented evidence that domestic violence in the

home threatens the physical safety of children and is a leading cause of child

fatality. There was also evidence that exposure to domestic violence is traumatic




       6 In re Dependency of M.S.D.. 144 Wn. App. 468, 478, 182P.3d978
(2008).
       7 In re Interest of J.F., 109 Wn. App. 718, 722, 37 P.3d 1227 (2001).
       8 See Key, 119 Wn.2d at 612.
       9 Clerk's Papers at 536.
No. 72164-0-1 (consolidated with No. 72165-8-l)/8


and detrimental to the psychological and emotional welfare of children. Evidence

in the record supports the finding.

       More importantly, while adequately supported, the finding is superfluous in

light of the unchallenged findings that Kevin was actively engaging in domestic

violence, the violence in the Bankses' home was escalating, the children

manifested symptoms of trauma, and Kevin failed to acknowledge the problem or

complete domestic violence treatment in spite of his documented history of

violence in numerous relationships.

       Instead of challenging these essential findings supporting the order of

dependency, Kevin claims that the court erred in denying his motion for a mistrial

based upon the court's display of personal bias against him. Because the

remarks that prompted Kevin's motion were not indicative of impartiality or bias,

we disagree.

       Kevin testified non-continuously over the course of four days. One of the

first issues the attorney representing the Department asked Kevin about was his

criminal history involving domestic violence. With respect to all of his convictions

and the events leading up to those convictions, the only details Kevin could recall

were about being in jail, throwing water from a cup at someone, and the fact that

one of the alleged victims grabbed him in the crotch area. He could remember

relationships with some of the victims, but claimed not to remember other victims

at all. He said that all he recall about prior domestic violence was "waking up out

of a coma." Nevertheless, Kevin eventually said he regretted and wanted to take
No. 72164-0-1 (consolidated with No. 72165-8-l)/9


"responsibility" for his criminal history, despite not being able to remember

committing any acts of violence.

       Kevin also testified about various times when police responded to the

family home. For instance, he said that in December 2013, he and Leah fought

about cigarettes and he called 911 because Leah was very upset. He said that

in August 2013, Leah became upset and destructive and eventually hurt herself

because they had recently moved and he talked to another woman about helping

Leah with the house. He claimed that another time, he called the police because

Leah took his work vehicle.

       During a discussion about his violation of the order imposed following the

shelter care hearing, Kevin said he remembered the hearing, but said he was not

provided with a copy of the court order and did not remember that the court

imposed a contact restriction. After the shelter care order failed to refresh his

memory, the court replayed the audio recording of the January 2014 hearing in

which the commissioner imposed the order in clear terms. After hearing the

recording, Kevin insisted he did not fully comprehend the specifics of the

restriction.

       At several points, the court expressed frustration with Kevin regarding his

inconsistent and apparently selective memory. The judge remarked that Kevin

was "testing her patience" and had been "untruthful, unresponsive, inconsistent,

and evasive in response to counsel's questions." The court stated:

        He doesn't take responsibility for any of this. He won't
        acknowledge a single act of domestic violence ever. He can't
        explain why the police have been called to the home, he can't
        explain why people have called the police, he can't explain why his
No. 72164-0-1 (consolidated with No. 72165-8-l)/10


       children would report domestic violence. He claims to be sorry
       about things he says he doesn't—never did.[10]

       The court's frustration reached its peak during a discussion on the third

day of Kevin's testimony about whether he believed his parenting was deficient in

any manner and whether he wanted to avail himself of any services the

Department could provide. After Leah's attorney objected to the questions about

services, claiming that Kevin had no basis to know about what services were

available to him, the court stated:

       You know, Mr. Banks is not the fool that he sometimes likes to
       portray himself as being. He reads just fine, he remembers things
       when people testify contrary to what he said, okay? He hears this
       Court when I tell him something bad will happen to him if he doesn't
       follow through on the Court's orders. He's a lot brighter than he
       likes to let on. We have talked about services up the yin yang this
       week, and he's been at the hearings where services have been
       discussed. He's discussed with his attorney which services he
       would and wouldn't accept. We actually heard his attorney telling
       the Court what he would agree to and on what conditions, okay?

       The argument that he doesn't know what we're talking about in
       terms of services here [strains] credulity as most of what Mr. Banks
       has been doing here does for me. My credulity got strained real
       early, and it's continued to be strained to the point where I really
       don't believe much of what Mr. Banks says, okay? If he wants to
       tell me that he'd welcome any and all services but that he can't
       name any, then we'll live with that. If he wants to name a particular
       service that he wants, he can tell us.[11]

Kevin's attorney moved for a mistrial, based on the court's "statements regarding

my client." The court denied the motion, and clarified that the court was making

a credibility finding that, up to that point, Kevin's testimony was nonsensical and

incredible.




       10 Report of Proceedings (May 21, 2014) at 714.
       11 Id at 718.

                                         10
No. 72164-0-1 (consolidated with No. 72165-8-l)/11


       Several days later after Kevin's testimony was complete, in reference to

his testimony about his medical condition, the court reiterated its determination

regarding Kevin's credibility:

        I have said it loud enough that [Kevin's attorney] asked me for a
        mistrial. I don't believe the father. I don't believe anything he tells
        me unless it's supported by written evidence. He was incredible
       throughout his testimony.!121

        Kevin did not articulate any specific legal theory below, but on appeal, he

relies on theories of due process, the appearance of fairness doctrine, and the

Code of Judicial Conduct. Kevin's argument under all of these theories is that

the dependency hearing was fundamentally unfair because the judge was

motivated by actual or potential bias against him. As evidence of this bias, Kevin

points to the court's admitted expertise in the area of domestic violence, its active

participation during the proceedings, and its direct comments during his

testimony, including the comment that prompted his counsel to move for a

mistrial.

        While some of the court's remarks would have been prejudicial to him had

they been made before a jury, that was not the case in this proceeding. The

judge was the finder of fact, not a jury.

        Moreover, we cannot say that a "reasonably prudent, disinterested

observer," seeing the full context of this hearing, would have concluded that the

judge failed to give Kevin "a fair, impartial, and neutral hearing," as the law

requires. The isolated remarks were unflattering to him. And they certainly

demonstrate the court's loss of patience with him. But our review of the record,


        12 Report of Proceedings (May 27, 2014) at 986.
                                            11
No. 72164-0-1 (consolidated with No. 72165-8-l)/12


which includes almost 2,000 pages of transcript, leads us to conclude that the

court's comments were not reflective of either actual or potential bias.

       While Kevin did not specifically request recusal or move for

disqualification, due process, the appearance of fairness, and the Code of

Judicial Conduct all require disqualification of a judge who is biased against a

party or whose impartiality may be reasonably questioned.13 Specifically, the

appearance of fairness doctrine requires that judges not only actually be

unbiased, but that they also appear to be unbiased.14 And the Code of Judicial

Conduct requires a judge to uphold the independence of the judiciary and to

recuse herself or himself where there is bias against a party.15

       "For a judge to be biased or prejudiced against a person's cause is to

have a preconceived adverse opinion with reference to it, without just grounds or

before sufficient knowledge. It is a particular person's state of mind that affects

his opinion or judgment."16 The trial court is presumed to perform its functions

without bias or prejudice.17 A party alleging judicial bias must present evidence

of actual or potential bias.18 We use an objective test to determine whether a




      13 Wolfkill Feed & Fertilizer Corp. v. Martin. 103 Wn. App. 836, 841, 14
P.3d 877 (2000).
       14 Gamble, 168 Wn.2d at 187 (quoting State v. Madrv, 8 Wn. App. 61, 70,
504P.2d 1156(1972)).
      15 CJC Canon 1; CJC Canon 3(D)(1).
      16 In re Borchert, 57 Wn.2d 719, 722, 359 P.2d 789 (1961).
      17 Wolfkill Feed & Fertilizer, 103 Wn. App. at 841.
      18 State v. Post, 118 Wn.2d 596, 618, 619 n.9, 826 P.2d 172, 837 P.2d
599(1992).
                                         12
No. 72164-0-1 (consolidated with No. 72165-8-l)/13


judge's impartiality might reasonably be questioned by a reasonable person who

knows all the relevant facts.19

       It is clear that during the course of Kevin's testimony, the judge became

convinced that Kevin was feigning loss of memory about things he would rather

not admit to, avoiding answering direct questions, and generally refusing to admit

any wrongdoing. In expressing her assessment of Kevin's testimony, the judge

was neither signaling her own bias nor gratuitously expressing a general

personal opinion about Kevin. Rather, after hearing extensive testimony, the

court detailed some of the reasons why Kevin's testimony was problematic and

made findings about credibility that supported the court's ultimate decision

regarding the dependent status of the children.

       There is no evidence in the record to suggest that the juvenile court judge

had any preconceived bias against Kevin at the outset of the case. None of the

trial court's comments or rulings indicate that the court was unwilling to consider

Kevin's position merely because of the allegations of domestic violence. Nor do

any of the court's comments suggest that dependency was a foregone

conclusion because of the allegations and criminal history. The court expressly

observed that, in fact, past commission of acts of domestic violence does not

necessitate a finding of parental fitness. The court noted in its oral ruling that it

was Kevin's failure to acknowledge and confront the issue of violence that was

most troubling. The court expressed confidence that it is possible for parents

who once engaged in domestic violence to become "quite fit parents" once they


       19 In re Marriage of Davison, 112 Wn. App. 251, 257, 48 P.3d 358 (2002)
(quoting Sherman v. State, 128 Wn.2d 164, 206, 905 P.2d 355 (1995)).
                                          13
No. 72164-0-1 (consolidated with No. 72165-8-l)/14


face the problem and commit themselves to treatment. The court also

emphasized the nonpunative purpose of the dependency and dispositional order:

       Mr. Banks, I'm going to lift this order if and when you get yourself
       through domestic violence treatment, okay? I absolutely am not
       intending to separate you from your family. I'm intending to get you
       through services so you're safe with your family."I201

       In sum, the court was entitled to make credibility findings based on its

observations and the record does not reveal any instance suggesting that the

juvenile court judge developed a personal dislike for Kevin that resulted in bias,

or the appearance of unfairness, or deprived Kevin of due process.

       The record also does not support the claim that by actively participating in

the hearing, the court took on the role of an advocate for the Department. The

judge questioned virtually all of the witnesses to varying extents, without aligning

herself with counsel for any of the parties. And the court's critiques and

expressions of skepticism were not limited to Kevin's testimony. The court

pressed many witnesses on various points, including witnesses presented by the

Department. The court also disagreed with some of the positions taken by the

attorney representing the Department.

       Kevin also claims he was unfairly prejudiced because of the court's

expertise in the area of domestic violence. However, Kevin ignores the context

in which this issue arose. The judge's experience and independent views about

domestic violence primarily came into play when the court perceived that the

Department was advocating dependency with respect to Leah based on her

status as a domestic violence victim. As reflected in the order of dependency,


       20 Report of Proceedings (June 6, 2014) at 1759.
                                         14
No. 72164-0-1 (consolidated with No. 72165-8-l)/15

the court strongly disagreed with the position that Leah was unable to adequately

care for her children merely because she had been subjected to domestic

violence. The court's views also appeared to factor into the dispositional

decision placing the children with Leah. In light of this context, Kevin fails to

explain how he was affected, much less prejudiced, by the court's expertise.

In any event, a judicial officer's expertise in a substantive area of law, by itself,

does not establish actual or potential bias. For example, Judge Jack B.

Weinstein is the author of a well-known treatise on evidence. But that did not

disqualify him from his long and distinguished judicial service as a trial judge in

the United States District Court for the Eastern District of New York. Kevin cites

no authority to support this novel claim, and we assume there is none.

       Because the relevant findings supporting the dependency are

unchallenged, the findings support the conclusions, and the court's statements

and other actions that Kevin challenges on appeal do not constitute error, we

affirm the order of dependency.

                                                           £M37
WE CONCUR:




                                           15
