

Opinion filed September 9,
2010
 
                                                                       In The
                                                                              
  Eleventh
Court of Appeals
                                                                   __________
 
                                                         No. 11-09-00365-CV 
                                                    __________
 
                           IN
THE INTEREST OF C.J.O., A CHILD

 
                                  On
Appeal from the County Court at Law
 
                                                             Ector
County, Texas
 
                                                 Trial
Court Cause No. CC-20,459
 

 
O P I N I O N
 
            The
trial court terminated the parent-child relationship between Christopher Alan
Hulme and C.J.O. and appointed C.J.O.’s stepfather, Donald Luis Hoover II, as his
sole managing conservator.  We affirm.
I.  Background Facts
Hulme and Cassi Jo Otwell were involved in a romantic relationship in
Wyoming.  The couple ended their relationship after four months, and in
mid-December 2002, Otwell moved to Texas.  Hulme knew that Otwell was pregnant
when she left, and he suspected that he might be the father.  C.J.O. was born
on June 3, 2003.  Otwell married Donald Hoover on March 25, 2005. They had
lived together for approximately one year prior to their marriage, and they had
a daughter together.  Hulme married Bucky Fran Hulme (Franny).
In late 2007, Hulme was diagnosed with cancer and was advised by his
doctor to contact the mothers of potential offspring.  At that point in time,
Hulme did not believe that he had any children.  Franny convinced him to talk
to Otwell.  Hulme called Otwell in November and learned that C.J.O. was his
son.  Otwell agreed to let Hulme visit C.J.O.  After a few visits, Otwell,
Hoover, and Hulme arranged for C.J.O. to spend a week with Hulme in Wyoming.  The
plan was for Otwell to meet Hulme at a halfway point to pick up C.J.O. at the
end of the week; however, Otwell was in a fatal car accident on her way to the
exchange.
Hulme refused to return C.J.O. to Hoover and, instead, kept him in
Wyoming.  Hulme also refused to bring C.J.O. to his mother’s funeral.  Hoover
filed a petition seeking sole managing conservatorship of C.J.O., and Hulme
responded with a counter-petition.  Hoover amended his petition and asked the
court to terminate Hulme’s parental rights.  The trial court conducted a bench
trial, terminated Hulme’s parental rights, and named Hoover sole managing
conservator.   The trial court also held that, in the event its termination
order was overturned on appeal, Hoover would be C.J.O.’s sole managing
conservator and Hulme would be his sole possessory conservator.
II.  Issues
Hulme challenges the trial court’s termination order with four issues. 
Hulme argues that the termination order is supported by legally and factually
insufficient evidence, that a visiting judge erred by failing to grant his
motion to recuse the trial judge, that the trial court abused its discretion in
denying his motion for new trial, and that the evidence does not support the
trial court’s alternative conservatorship ruling.
III.  Factual and Legal Sufficiency
Before terminating a parent’s rights, the trial court must first find by
clear and convincing evidence that termination is based upon one or more of the
grounds enumerated in Tex. Fam. Code
Ann. § 161.001(1)-(2) (Vernon
Supp. 2009).  Clear and convincing evidence is that degree of proof that will
produce in the mind of the trier of fact a firm belief or conviction as to the
truth of the allegations sought to be established.  Tex. Fam. Code Ann.
§ 101.007 (Vernon 2008).  The trial court found that Hulme knowingly placed or
allowed C.J.O. to remain in conditions or surroundings that endangered his
physical or emotional well-being, that Hulme engaged in conduct or knowingly
placed C.J.O. with persons who engaged in conduct that endangered C.J.O.’s
physical or emotional well-being, that Hulme failed to support C.J.O. in
accordance with his ability during a period of one year, and that Hulme
voluntarily abandoned Otwell and C.J.O.
Hulme contends that the trial court’s termination order is supported by
legally and factually insufficient evidence; and he specifically challenges the
trial court’s findings that he abandoned C.J.O., that he failed to support C.J.O.,
and that he knowingly placed C.J.O. with others who endangered his emotional
well-being.  To determine if the evidence is legally sufficient in a parental
termination case, we review all of the evidence in the light most favorable to
the finding and determine whether a rational trier of fact could have formed a
firm belief or conviction that its finding was true.  In re J.P.B., 180
S.W.3d 570, 573 (Tex. 2005).  To determine if the evidence is factually
sufficient, we give due deference
to the trial court’s
findings and determine whether, on the entire record, the trial court could
reasonably form a firm conviction or belief that the parent committed an act
that would support termination and that termination of the parent’s parental
rights would be in the child’s best interest.  In re C.H., 89 S.W.3d 17,
28 (Tex. 2002).
A.    
Abandonment.
A trial court may terminate the parent-child relationship if a parent voluntarily
and knowingly abandons the mother of the child during pregnancy, fails to
provide adequate support and medical care during her pregnancy, and fails to support
the child after birth.  Section 161.001(1)(H).  The abandonment must be
with knowledge of the pregnancy and must occur both during the pregnancy and
after birth.  Id.  When the child is born out of wedlock and the father
doubts his paternity, there is no enforceable support obligation until
paternity is established.  Prokopuk v. Offenhauser, 801 S.W.2d 538, 540
(Tex. App.—Houston [1st Dist.] 1990, writ denied).
Hulme
argues that he did not abandon C.J.O. because he did not know that Otwell was
pregnant with his child.  Hulme testified at trial that, although he knew
Otwell was pregnant when she left, he did not definitively know that she was
carrying his child.  He testified that, after Otwell left Wyoming, he contacted
her mother, Jan Otwell, and was told that Otwell gave birth in April.  Hulme
testified that an April delivery date foreclosed him from being the father.   Hulme
also testified that he contacted several state agencies to learn if Otwell
listed him as C.J.O.’s father on the birth certificate but that they would not
release any information.  Hulme contended that he did not learn that he was
C.J.O.’s father until four years later when he called Otwell to tell her of his
cancer diagnosis.
Other
evidence, however, conflicted with Hulme’s testimony.  Jan Otwell denied
telling Hulme that the child was born in April.  Melinda Heap, an acquaintance
of Hulme and Franny, testified that Hulme told her that he had called Otwell
shortly after C.J.O.’s birth and that she had confirmed he was the father and had
asked him to stay out of their lives.  It is significant also that Hulme contacted
Otwell after being informed by the doctor to tell any potential mothers of his
medical condition.  
The
trial court had conflicting evidence on Hulme’s knowledge.  A reasonable
factfinder could disbelieve Hulme and conclude that he knew that Otwell was
pregnant with his child and that he voluntarily abandoned her and C.J.O.
B.    
Dangerous Environment and Conduct.
The trial court also found that Hulme violated Section 161.001(1)(E) by knowingly
engaging in conduct or placing C.J.O. with a person that endangered C.J.O.’s
physical or emotional well-being.  The offending conduct does not need to be
directed at the child nor does the child actually have to suffer an injury to
support a finding under Section 161.001(1)(E).  In re C.E.K., 214 S.W.3d
492, 496 (Tex. App.—Dallas 2006, no pet).  Domestic violence may be considered
evidence of endangerment.  Id.  If a parent abuses or
neglects the other parent or other children, that conduct can be used to
support a finding of endangerment even against a child who was not yet born at
the time of the conduct.  In re W.J.H., 111 S.W.3d 707, 716 (Tex.
App.—Fort Worth 2003, pet. denied).
Hulme and Franny were separated and were
getting a divorce.  Hulme initially denied that any domestic violence had occurred
in their marriage, but he later admitted to one incident in which Franny was
escorted out of their home by police.  He claimed that Franny bit him on his
back, and he acknowledged that he scratched her across the chest with a pair of
keys but claimed that he did so while trying to get away from her.  Heap described
two incidents of domestic violence between Hulme and Franny.  Heap recalled one
incident where Hulme threw a cordless phone at Franny after a heated verbal
argument.  After a subsequent incident involving a physical altercation, Franny
came to her house.  Heap took pictures of Franny’s black eye and a scratch on her
chest.  These pictures were introduced into evidence.  Heap testified that the
couple argued on a regular basis and routinely used foul language.  She
witnessed one incident where, in C.J.O.’s presence, Franny cursed at someone
for hitting their truck with a car door.  She also witnessed Franny spank
C.J.O. in a manner that she described as excessive, and she saw Hulme yell and
curse at C.J.O. for hitting his truck with a frisbee.
The evidence is legally and factually
sufficient to support the trial court’s finding that C.J.O.’s physical and
emotional well-being was endangered.  Because only one statutory ground is
necessary to support a termination order and because the trial court properly
found two grounds, it is unnecessary to discuss the remaining statutory
findings. 
C.     Best Interest of the Child.
To terminate the parent-child relationship, the trial court must also find
that termination is in the best interest of the child.  Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987).  Best interest does not
require proof of any unique set of factors.  In re W.E.C., 110 S.W.3d
231, 240 (Tex. App.—Fort Worth 2003, no pet.).  But courts may use the
non-exhaustive Holley factors to shape their analysis.  Holley v.
Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).  These include, but are not
limited to, (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 these
individuals or by the agency seeking custody, (7) the stability of the home or
proposed placement, (8) the acts or omissions of the parent that may indicate
that the existing parent-child relationship is not a proper one, and (9) any
excuse for the acts or omissions of the parent.  Id.  Additionally, evidence that proves one or more
statutory grounds for termination may also constitute evidence illustrating
that termination is in the child’s best interest.  In re C.J.F., 134
S.W.3d 343, 354 (Tex. App.—Amarillo 2003, no pet.).
The evidence that Hulme abandoned Otwell and C.J.O. and
that he endangered C.J.O.’s physical and emotional well-being also supports the
finding that termination was in C.J.O.’s best interest.  Additionally, the
trial court could reasonably consider Hulme’s refusal to allow C.J.O. to attend
his mother’s funeral as evidence of poor judgment and poor parental skills.  The
trial court had legally and factually sufficient evidence that the termination
of Hulme’s parental rights was in the best interest of C.J.O.  Accordingly, Hulme’s
first issue is overruled.  This holding makes it unnecessary to address Issue
Two:  Hulme’s challenge to the trial court’s alternative conservatorship
ruling.   
IV.  Motion to Recuse
Hulme filed a motion to recuse and a judicial grievance.  The Honorable Weldon
Kirk[1]
was assigned to hear the recusal motion and, after an evidentiary hearing,
denied it.  Hulme contends that Judge Kirk erred because several of the trial
court’s rulings evidence a bias, because his pending judicial grievance might
cause the trial court’s impartiality to be questioned, and because the trial
court’s friendship with opposing counsel improperly influenced its rulings.
Recusal is warranted when: (1) the trial judge’s impartiality may be
questioned, (2) the judge has a personal bias or prejudice concerning a party
or the subject matter of the case, and (3) the judge has been a material
witness concerning the proceeding.  Tex.
R. Civ. P. 18b(2)(a)-(c).  The
denial of a motion to recuse is reviewed under an abuse of discretion
standard.  Tex. R. Civ. P. 18a(f).  We review the totality
of the circumstances and will not reverse an assigned judge’s ruling if it is within
the zone of reasonable disagreement.  Kemp v. State, 846 S.W.2d 289, 306
(Tex. Crim. App. 1992).  
The movant bears the burden of proving that a recusal is warranted and
satisfies that burden only if he shows bias or partiality to such an extent as to
deprive him of a fair trial.  See Abdygapparova v. State, 243 S.W.3d
191, 196 (Tex. App.—San Antonio 2007, pet. ref’d).  Bias sufficient to warrant
a recusal commonly stems from an extrajudicial source.  Id.  But, when
recusal is based on in-court proceedings, the alleged biased rulings or remarks
must display a deep-seated favoritism or antagonism that would make a fair
judgment impossible.  Ludlow v. DeBerry, 959 S.W.2d 265, 281 (Tex.
App.—Houston [14th Dist.] 1997, no pet.).
            Hulme
points to a pretrial ruling as evidence of the trial court’s bias and
attributes it to the trial court’s friendship with opposing counsel.  During a
hearing on temporary orders, the trial court refused to admit a previous
non-court-ordered paternity test.  Instead, the trial court ordered new genetic
testing that included the mother’s DNA.  Hulme has failed to establish any
impropriety in connection with this ruling, let alone any deep-seated
favoritism or antagonism.  
            Hulme’s
judicial grievance was based upon the same pretrial ruling.  He testified at
the recusal hearing that the trial court could not be impartial with this
grievance still pending.   Allowing recusal in every situation where a party files
a judicial grievance would result in unwarranted recusal and would create an easy
means of recusing a judge without any actual evidence of bias.  See Sommers
v. Concepcion, 20 S.W.3d 27, 42 (Tex. App.—Houston [14th Dist.] 2000, pet.
denied).  Hulme’s general assertion that the trial court was biased because of
the pending grievance is not sufficient to establish the requisite bias or
prejudice.
            Given
the totality of the circumstances, Hulme did not present sufficient evidence to
rebut the presumption of a neutral and detached trial court.  Judge Kirk did
not abuse his discretion by denying Hulme’s motion to recuse.   Issue Three is
overruled.
V.  Motion
for New Trial
Hulme also argues that the trial court erred when it refused to grant his
motion for a new trial based on newly discovered evidence.  Heap testified at
trial that a pending burglary charge was being reduced to a misdemeanor.  Hulme
contended that Heap committed perjury and that, in fact, her proceedings were
stayed pending a mental evaluation.  Hulme also challenged Heap’s trial
testimony concerning Franny’s drug use.  Hulme testified at trial that Franny
never had a problem with drugs, that she had used pain medication after a knee
surgery, but that she was not currently on any medication.  Heap testified that
Hulme had expressed concern about Franny’s drug use, that Franny had previously
been addicted to meth, that she would steal Hulme’s pain medication, and that
she was currently using methadone.  Hulme produced a letter from Franny’s
physician to show that she could not have abused methadone because she was
prescribed morphine.
We review a trial court’s denial of a motion for new trial under an abuse
of discretion standard of review.  Dolgencorp of Tex., Inc. v. Lerma, 288
S.W.3d 922, 926 (Tex. 2009).  The party moving for a new trial based on newly
discovered evidence must show the following:  (1) that the evidence was
unknown or unavailable to the movant during trial; (2) that the movant’s
failure to discover or obtain the evidence during trial was not due to a lack
of diligence; (3) that the new evidence is admissible and not merely cumulative
or impeaching; and (4) that the evidence is so material that it would probably
produce a different result in a new trial.  Jackson v. Van Winkle, 660
S.W.2d 807, 809 (Tex. 1983), overruled on other grounds by Moritz v. Preiss,
121 S.W.3d 715, 720-21 (Tex. 2003).     
Hulme was aware of Heap’s pending criminal charges in Wyoming as he first
introduced the subject during her cross-examination.  This evidence is either not
newly discovered, or Hulme did not use due diligence to discover the nature of
those charges.  The doctor’s letter is not part of our record, but even if it
and the Wyoming criminal documents are considered newly discovered evidence,
their sole purpose was to undermine Heap’s testimony.  Consequently, the trial
court did not err by overruling Hulme’s motion for new trial.  Issue Four is
overruled.
VI.  Conclusion
The order of the trial court is affirmed.
            
 
RICK STRANGE
                                                                                    JUSTICE
 
September 9,
2010
Panel consists of:  Wright, C.J.,
McCall, J., and Strange, J.




                [1]We note with sadness that Judge Kirk has since passed
away, following a long and distinguished judicial career.


