In the Interest of T.L.C., a Child v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: April 10, 2024
• Docket: 04-22-00446-CV
• Status: Published

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION

No. 04-22-00446-CV

IN THE INTEREST OF T.L.C., a Child

From the 25th Judicial District Court, Guadalupe County, Texas Trial Court No. 20-0569-CV-A Honorable Heather H. Wright, Judge Presiding

Opinion by: Luz Elena D. Chapa, Justice

Sitting: Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice Irene Rios, Justice

Delivered and Filed: April 10, 2024

AFFIRMED

Appellant David Leo Cormier aka Fa’ro Alier (Alier) seeks to set aside a final order entered

on May 25, 2022 in a suit affecting the parent-child relationship related to his daughter, T.L.C. On

appeal, he argues the trial court made biased statements against him, engaged in conspiracy,

violated his fundamental and constitutional rights, and erred by designating T.L.C.’s mother as

sole managing conservator. We affirm the trial court’s final order.

BACKGROUND

On March 11, 2020, the Office of the Attorney General (“OAG”) filed a Petition to

Establish Parent-Child Relationship to establish Alier’s paternity of T.L.C. and compel him to pay

child support. At the time of the filing, T.L.C. was five years old. After a hearing, an associate

judge issued a temporary order, establishing a parent-child relationship between Alier and T.L.C. 04-22-00446-CV

and appointing T.L.C.’s mother sole managing conservator and Alier possessory conservator. The

order also required Alier to pay $216.00 per month in child support and $57.00 per month in cash

medical support to T.L.C.’s mother. It further found it was in T.L.C.’s best interest for Alier to

have supervised visits with her on the first weekend of every month.

A final hearing before the associate judge occurred on November 23, 2021, and both parties

appeared. The trial court ultimately entered a final order similar in all respects to the temporary

order, except it increased Alier’s child support obligation to $407.00. Alier then requested a de

novo hearing pursuant to section 201.015 of the Texas Family Code, objecting to T.L.C.’s mother’s

appointment as sole managing conservator, his child support obligation, and the possession and

access schedule. At the de novo hearing, both parties appeared, and Alier argued for equal

possession of T.L.C. Following the hearing, the trial court entered a final order on May 25, 2022,

adopting the previous order but altering the possession and access schedule. Specifically, it found

it was in T.L.C.’s best interest for Alier to have supervised visits with T.L.C. on the first weekend

of every month, and upon the completion of twenty-four in-person visits, he would then have

visitation in accordance with the standard possession and access schedule further detailed in the

order.

Alier now appeals, arguing the trial court was biased against him, engaged in conspiracy,

violated his fundamental and constitutional rights, and erred by designating T.L.C.’s mother as

sole managing conservator.

JUDICIAL BIAS

Alier first raises the issue of judicial bias, arguing the trial judge presiding over the de novo

hearing was biased against him, and the judge’s impartiality should have disqualified her from

presiding over the hearing. He argues the trial judge’s “behavior and attitude” was “always harsh

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and biased,” and because the trial judge favored opposing counsel, she “always violated my

fundamental rights.”

The federal and state constitutions guarantee a defendant the right to an impartial judge.

See Abdygapparova v. State, 243 S.W.3d 191, 208 (Tex. App.—San Antonio 2007, pet. ref’d)

(citing Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973) and Brumit v. State, 206 S.W.3d 639, 645

(Tex. Crim. App. 2006)). When a claim of judicial bias is raised, we review the record to determine

whether it shows the judge’s bias or prejudice denied the defendant due process. Abdygapparova,

243 S.W.3d at 198. The United States Supreme Court has stated, “judicial rulings alone almost

never constitute a valid basis for a bias or partiality motion.” Dow Chem. Co. v. Francis, 46

S.W.3d 237, 240 (Tex. 2001) (per curiam) (quoting Liteky v. United States, 510 U.S. 540, 555

(1994)) (internal quotation marks omitted). Moreover, the Texas Supreme Court has adopted the

same philosophy, providing:

opinions the judge forms during a trial do not necessitate recusal unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. Thus, judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge.

Id. (quoting Liteky, 510 U.S. at 555) (internal quotations omitted). “[E]xpressions of impatience,

dissatisfaction, annoyance, and even anger” do not establish bias or partiality, and “a trial court

has the inherent power to control the disposition of cases with economy of time and effort for

itself, for counsel, and for litigants.” Id. (quoting Liteky, 510 U.S. at 555 and Landis v. North Am.

Co., 299 U.S. 248, 254 (1936)) (internal quotation marks omitted).

Our review of the record shows the trial judge conducted the de novo hearing with

professionalism. Alier, however, points to two instances in which he contends the trial judge acted

with bias against him. The first instance he points to is when the trial judge asked Alier to stop

talking after Alier repeatedly interrupted opposing counsel’s questioning. The trial judge said,

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“Stop talking. You need to let him finish his question before you start an answer. My court

reporter has to make an entire record of the hearing, and she can’t do it if you keep talking over

him. You will get your turn to speak. Let him finish his question.” We conclude the trial judge’s

action did not constitute bias, but instead it was part of the trial court’s inherent power to maintain

control in the courtroom. See id. at 241 (“Further, a trial court 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.”).

Alier next contends the trial judge insulted him when she told him to “knock it off.” The

record shows Alier claimed the associate judge “didn’t have any morals” at which point the trial

judge told Alier, “Stop. I’ll tolerate a lot of things in my courtroom. What I won’t tolerate is you

making accusations about the morality of a fellow colleague of mine, so you need to knock it off.”

Again, we conclude the trial judge’s comment does not establish bias or partiality as it was part of

the trial court’s inherent power to maintain civility in the courtroom. See id. at 240–41 (pointing

out critical or disapproving comments made to the parties do not support bias or partiality).

Accordingly, we overrule Alier’s first issue complaining of judicial bias.

CONSPIRACY AND VIOLATION OF FUNDAMENTAL AND CONSTITUTIONAL RIGHTS

In his next two arguments, Alier asserts the trial court engaged in conspiracy when the trial

judge stated she refused to rule against her colleague, and the trial court violated his fundamental

and constitutional rights by not entering his name on T.L.C.’s birth certificate. Other than these

general accusations, Alier has not presented us with any substantive analysis to support them.

Instead, he makes brief conclusory statements without citing legal authority. Accordingly, we

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overrule these issues because they are inadequately briefed and therefore waived. 1 See TEX. R.

APP. P. 38.1(i).

MANAGING CONSERVATORSHIP

Finally, Alier asserts the trial court erred by appointing T.L.C.’s mother as sole managing

conservator of T.L.C. According to Alier, T.L.C.’s mother was a “habitual drug user,” “woman

of bad character,” and did not have the financial resources necessary to care for T.L.C. Thus, her

appointment as sole managing conservator was not in T.L.C.’s best interest.

In general, we review a trial court’s conservatorship decision for an abuse of discretion. In

re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007) (citing Gillespie v. Gillespie, 644 S.W.2d 449, 451

(Tex. 1982)). Conservatorship determinations are “intensely fact driven,” Lenz v. Lenz, 79 S.W.3d

10, 19 (Tex. 2002), and a trial court is afforded broad discretion regarding conservatorship matters.

See In re V.R.G., No. 04-17-00583-CV, 2018 WL 842766, at *1 (Tex. App.—San Antonio Feb.

14, 2018, no pet.) (mem. op.); In re E.B., No. 04-13-00039-CV, 2014 WL 2547598, at *4 (Tex.

App.—San Antonio June 4, 2014, no pet.) (mem. op.). We will reverse a trial court’s

conservatorship ruling only when the trial court’s decision is arbitrary and unreasonable. J.A.J,

243 S.W.3d at 616.

The primary consideration in determining conservatorship and possession of and access to

the child is the best interest of the child. TEX. FAM. CODE § 153.002. Unless a trial court finds it

would significantly impair the child’s physical health or emotional development, “a parent shall

be appointed sole managing conservator or both parents shall be appointed as joint managing

1 Even if Alier had adequately raised these issues for our consideration, his arguments are unavailing because there is no evidence the trial judge engaged in conspiracy. The only reference the trial judge made regarding her colleague occurred when the trial judge told Alier she would not tolerate him “making him accusations about the morality of a fellow colleague,” which we previously held did not establish judicial bias. Additionally, at no point during the de novo hearing did Alier request the trial court enter his name on T.L.C.’s birth certificate.

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conservators of the child.” Id. § 153.131(a). The law presumes appointing both parents as joint

managing conservators is in the best interest of the child. Id. § 153.131(b). But, this presumption

ceases when the trial court makes a finding of a history of family violence. Id. When, as here, no

findings of fact and conclusions of law were requested or filed, it is implied that the trial court

made all findings necessary to support its judgment. In re K.L.S., No. 11-21-00094-CV, 2022 WL

401474, at *2 (Tex. App.—Eastland Feb. 10, 2022, no pet.) (mem. op.) (citing Worford v. Stamper,

801 S.W.2d 108, 109 (Tex. 1990) (per curiam)). Finally, in determining the best interest of the

child, a trial court considers the factors outlined in Holley v. Adams, 544 S.W.2d 367, 371–72

(Tex. 1976). 2

At the de novo hearing, the trial court indicated it had reviewed the record from the

previous hearing held before the associate judge that took place on November 23, 2021. See TEX.

FAM. CODE § 201.015(c) (providing referring court may consider record from hearing before

associate judge); In re A.L.M.-F., 593 S.W.3d 271, 276 (Tex. 2019); In re R.S.–T., 522 S.W.3d 92,

108 (Tex. App.—San Antonio 2017, no pet.) (quoting § 201.015(c)) (internal quotation marks

omitted). The trial court also heard testimony from Alier, who testified the appointment of

T.L.C.’s mother as managing conservator was not in T.L.C.’s best interest because T.L.C.’s mother

was an alcoholic, drug addict, and “always fighting.” When asked whether he had witnessed any

illegal drug use, Alier testified he had not, but he believed she continued using illegal drugs

because people who do drugs “don’t just stop.” Alier was also asked whether he had a relationship

with T.L.C., and Alier testified the longest amount of time he had cared for T.L.C. was the first

2 These factors include: (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 the parents to promote the best interest of the child; (6) the plans for the child by the parent seeking custody; (7) the stability of the home or proposed placement; (8) the acts or omissions of the parent which 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.

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six months of her life. Alier testified T.L.C.’s mother took T.L.C. away from him after six months

because his name was not on T.L.C.’s birth certificate. He further testified he had been unable to

establish a relationship with T.L.C. because anytime he tried, T.L.C.’s mother would lie to him or

one of her boyfriends would threaten him. Alier testified when he came to see T.L.C. this past

summer, T.L.C.’s boyfriend threatened him with a knife. Alier also testified he had been living in

Oakland, California for the past three years, and he wanted to move T.L.C. to California to live

with him. He testified he currently lived in a two-bedroom house and did not have a job, but he

planned to get state assistance to help him support T.L.C.

The trial court also heard testimony from T.L.C.’s mother, who testified T.L.C. had never

lived with Alier for six months. She stated T.L.C. lived with him for two weeks after she was

born, and when he brought T.L.C. to the hospital for a “PKU” screening, he left T.L.C. with her

after he found out T.L.C. did not share his last name. T.L.C.’s mother further testified Alier was

violent and had slapped her four-year old son during a visit after he believed her son had scratched

T.L.C.’s face. She further described Alier’s temper as going from “zero to a hundred” at “any

little thing,” and she was scared to tell him where she and T.L.C. currently lived. She also added

T.L.C. was not comfortable being alone with Alier, but she believed it was important for him to

have a bond with T.L.C. and agreed monthly supervised visitations would help establish a bond.

T.L.C.’s mother also testified she had seven other children. When asked whether she had

a past history with Child Protective Services, she stated she had, but added her children had never

been removed from her care, and she had never been arrested. She further denied using illegal

drugs. Finally, when asked how she supported herself and T.L.C., she testified she received SSI

income and her husband was employed. She added she lived in a three-bedroom house, and T.L.C.

had health insurance through Medicaid.

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Based on this evidence, the trial court could have implicitly found Alier engaged in a

history of family violence, rebutting the presumption in favor of both parents being appointed joint

managing conservators of T.L.C. See K.L.S., 2022 WL 401474 at *5. The trial court could have

further determined appointing T.L.C.’s mother as managing conservator was in T.L.C.’s best

interest after considering T.L.C.’s age and relationship with Alier. See Holley, 544 S.W.2d at 371–

72. The trial court could have also chosen not to believe Alier’s testimony, characterizing T.L.C.’s

mother as an alcoholic, drug addict, and violent person, and instead, it could have chosen to believe

T.L.C.’s testimony stating she did not use drugs, and she supported T.L.C. See In re R.D.Y., 51

S.W.3d 314, 321 (Tex. App.—Houston [1st Dist.] 2001, pet. denied) (op. on reh’g) (explaining

trial court is in the best position to observe credibility and personalities of witnesses regarding

terms of conservatorship). Accordingly, we cannot conclude the trial court abused its discretion

by appointing T.L.C.’s mother sole managing conservator of T.L.C., and we overrule Alier’s final

complaint.

CONCLUSION

Having overruled Alier’s complaints, we affirm the trial court’s de novo order entered on

May 25, 2022.

Luz Elena D. Chapa, Justice

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