IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In re the Dependency of: G.B. (DOB: 12-23-08); and A.B. (DOB: 5-5-11), Minor Children. STATE OF WASHINGTON, DEPARTMENT OF SOCIAL AND HEALTH SERVICES, Respondent, No. 72164-0-1 (consolidated with No. 72165-8-1) DIVISION ONE

UNPUBLISHED FILED: April 27, 2015 SO ro o too o9 -V) '-r. ^"°rn

CD

— 3C< KEVIN BANKS, Appellant. o CO

Cox, J. — Kevin Banks appeals ajuvenile court orderfinding his daughters, G.B. and A.B., dependent. Based on certain remarks made by the court and the court's active participation inthe dependency proceedings, Banks contends that thejuvenile courtjudge exhibited bias and lack ofimpartiality, 

### depriving him of a fair hearing. Because this record is devoid ofevidence supporting these claims, the findings offact are either unchallenged verities on 

### appeal or are supported by substantial evidence, and the findings supportthe 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 ofDecember 29, 2013, A.U. ran to a neighbor's home in a frantic state seeking help because herfatherwas 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 behalfofthe Department ofSocial and Health Services (the Department). Atthe 72-hour shelter care hearing, Police arrested Leah on an 

### outstanding warrant. The courtfound there was a basis for shelter care, but determined thatthe children could remain in the home with Leah upon her 

### release from jail with services inplace. Accordingly, the court ordered placement with the mother upon various conditions, including the condition thatthe father


### move out ofthe family home and have no contactwiththe family, apartfrom
1Because the parents share the same last name, we referto them by their first names for clarity. 2No. 72164-0-1 (consolidated with No. 72165-8-l)/3 

### supervised visitation. The court ordered thatviolation of the conditions would result in removal ofthe children and placement in licensed care. 

### InMarch 2014, after speaking with the two older children at school, the appointed guardian ad litem (GAL)reported thatthe father was present inthe home in violation ofthe shelter care order and that another possible domestic violence incident had occurred wherein Kevin threatened to kill Leah with a knife in front ofthe children. The social workerwent 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 forthe nextfew days. Leah then leftthe three children inthe
care ofher 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. Thejuvenile court held a 

### dependencyfact-finding hearing over the course of 10days in May 2014. The court considered the testimony ofmore than 20 witnesses, including the parents, 

### social workers, police officers, the neighbor, the motherof 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 ofany domestic violence inthe 

### relationship. Leah previously admitted, however, that domestic violence occurred earlier inthe 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 againstfive different
women between 1996 and 2007 and a prior domestic violence felony conviction for violating a no-contact order. At leasttwo women had obtained protection 

### orders against Kevin. Atthe time ofthe dependency hearing, a protection order prohibited Kevin's contactwith two of his older children from a prior relationship. Kevin could not remember participating in domestic violence treatment inthe 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, apartfrom his testimony, to substantiate the nature and extent of his medical issues. Kevin testified that he could not rememberany significant conductthat resulted in prior arrests and convictions. 

### A Pierce County court declared Leah's oldestdaughter, A.U., dependent in 2007 due to Leah's substance abuse and neglect. The Department placed A.U. inthe care of a relative for two years, but eventually returned herto 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 statementto 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. AnAugust 2013 incident also involved A.U. appearing at the neighbor's door after midnight 

### crying and reporting that her motherwas on the floorbleeding 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 ofthe presence of alcohol and a 

### marijuana grow operation in the home that was accessibleto the children and evidence ofthe parents' access to weapons. 

### At the conclusion ofthe 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 ofdomestic violence againstthe mother inthe 

### presence of the children" and because of his status as an "untreated domestic violence perpetrator." The court also found allthree children dependent as to Leah under RCW 13.34.030(c) but stated thatthis findingwas "time specific" because "no one has made it safe for the mother to raise the children." The court 

### ordered placementof the children with Leah and entered an orderprohibiting 

### Kevin from having contactwith the family and from being present in orneartheNo. 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 IMPARTIALITYAND BIAS 

### Kevin claims thejuvenile courtjudge lacked impartiality and was biased against him. Accordingly, he claims he was deprived of a fair hearing. We disagree. 

### Underthe appearance offairness doctrine, a judicial proceeding is valid only if a reasonably prudent, disinterested observer would conclude thatthe parties received a fair, impartial and neutral 

### hearing. "The law goes farther than requiring an impartialjudge; it also requires thatthejudge appearto be impartial.'" "Evidence of a judge's actual or potential bias must be shown before an appearance offairness claim willsucceed." Underthe Code of Judicial Conduct, designed to provide guidance forjudges, "'OJudges should disqualify themselves in a proceeding inwhich 

### their impartiality mightreasonably 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 ofany 

### rights.'"4 As the legislature has determined, inbalancing the legal rights of parents againstthe rights ofthe child, the rights and safety ofthe child is the 

### paramount concern.5 RCW 13.34.030(6) provides, in relevant part, that a dependent child is any child who: 2State v. Gamble. 168 Wn.2d 161, 187-88, 225 P.3d 973 (2010). 3 In re Dependency ofT.L.G.. 126 Wn. App. 181, 203, 108 P.3d 156 (2005). 4In re Welfare of Key. 119 Wn.2d 600, 609, 836 P.2d 200 (1992) (quoting In re Dependency ofA.W.. 53 Wn. App. 22, 30, 765 P.2d 307 (1988)). 5 RCW 13.34.020; In re Dependency ofSchermer, 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 ofthe child; [or] 

### (c) Has no parent, guardian, or custodian capable ofadequately 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 orderofdependency so long as substantial evidence supports the trial court's findings offact and the findings supportthe conclusions 

### oflaw.6 Unchallenged findings are verities on appeal.7 In this appeal, Kevin does not challenge the court's determination that, by

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

### definitions ofdependency under RCW 13.34.030.8 In particular, he does not challenge the evidence supporting the court's findings that he repeatedly 

### committed acts ofdomestic violence against Leah inthe presence ofthe children and that the children were traumatized as a result. 

### Kevin assigns errorto only one portion of a single finding, Finding ofFact 35, which states: "[t]he court cannot say thatthe father is a good father because


### no domestic violence perpetratorcan be a good parentor a good husband."9 However, the Department presented evidence that domestic violence inthe 

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

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

6In re Dependency ofM.S.D.. 144 Wn. App. 468, 478, 182P.3d978 (2008).7In re Interest ofJ.F., 109 Wn. App. 718, 722, 37 P.3d 1227 (2001). 

### 8See Key, 119 Wn.2d at 612. 9Clerk's Papers at 536.No. 72164-0-1 (consolidated with No. 72165-8-l)/8 

### and detrimental to the psychological and emotional welfare ofchildren. Evidence inthe record supports the finding. More importantly, while adequately supported, the finding is superfluous in light ofthe unchallenged findings that Kevin was actively engaging indomestic violence, the violence inthe Bankses' home was escalating, the children 

### manifested symptoms oftrauma, and Kevin failed to acknowledge the problem or complete domestic violence treatment in spite of his documented history of violence in numerous relationships. 

### Instead ofchallenging these essential findings supporting the orderof dependency, Kevin claims thatthe courterred indenying 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. 

### Kevintestified non-continuously overthe course of four days. One ofthe first issues the attorney representing the Department asked Kevin aboutwas his 

### criminal history involving domestic violence. Withrespectto all of his convictions and the events leading up to those convictions, the only details Kevin could recall
were about being in jail, throwing waterfrom a cup at someone, and the fact that
one of the alleged victims grabbed him inthe crotch area. He could remember relationships withsome ofthe victims, but claimed not to rememberothervictims at all. He said that all he recall about prior domestic violence was "waking up out 

### of a coma." Nevertheless, Kevineventually 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 ofviolence. Kevin also testified about various times when police responded to the 

### family home. For instance, he said that in December2013, he and Leah fought about cigarettes and he called 911 because Leah was very upset. He said that 

### inAugust2013, Leah became upset and destructive and eventually hurt herself because they had recently moved and he talked to anotherwoman about helping Leah with the house. He claimed that anothertime, he called the police because Leah took his work vehicle. 

### During a discussion about his violation ofthe order imposed followingthe sheltercare hearing, Kevinsaid he remembered the hearing, but said he was not provided with a copy ofthe court order and did not rememberthatthe court 

### imposed a contact restriction. Afterthe sheltercare orderfailed to refresh his memory, the court replayed the audio recording ofthe January 2014 hearing in which the commissioner imposed the order inclearterms. After hearing the 

### recording, Kevininsisted he did notfully comprehend the specifics of the restriction. 

### Atseveral points, the court expressed frustration with Kevin regarding his 

### inconsistent and apparently selective memory. Thejudge remarked that Kevin
was "testing her patience" and had been "untruthful, unresponsive, inconsistent, and evasive inresponse to counsel's questions." The court stated: He doesn'ttake responsibility for any of this. He won't 

### acknowledge a single act ofdomestic 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'texplain why hisNo. 72164-0-1 (consolidated with No. 72165-8-l)/10 

### children would report domestic violence. He claims to be sorry 

### aboutthings 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 aboutwhether he believed his parenting was deficient in any manner and whether he wanted to avail himselfofany 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 himselfas being. He readsjustfine, he remembers things when people testify contrary to what he said, okay? He hears this Courtwhen Itell him something bad will happen to him ifhe doesn't follow through on the Court's orders. He's a lot brighterthan 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 Courtwhat he would agree to and on what conditions, okay? The argument that he doesn't know what we're talking about in 

### terms ofservices here [strains] credulity as most ofwhat Mr. Banks has been doing here does for me. Mycredulity got strained real early, and it's continued to be strained to the point where Ireally don't believe much ofwhat Mr. Banks says, okay? Ifhe 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 courtdenied the motion, and clarified thatthe courtwas making a credibility finding that, up to that point, Kevin's testimony was nonsensical and incredible.



### 10 Report ofProceedings (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: Ihave said it loud enough that [Kevin's attorney] asked me for a mistrial. Idon't believe the father. Idon'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 ofdue process, the appearance offairness doctrine, and the 

### Code ofJudicial Conduct. Kevin's argument under all ofthese theories is that the dependency hearing was fundamentally unfair because thejudge was 

### motivated by actual or potential bias against him. As evidence of this bias, Kevin points to the court's admitted expertise inthe area ofdomestic violence, its active 

### participation during the proceedings, and its direct comments during his testimony, including the commentthat prompted his counsel to move for a mistrial. While some ofthe court's remarks would have been prejudicial to him had 

### they been made before a jury, thatwas 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 "afair, impartial, and neutral hearing," as the law requires. The isolated remarks were unflattering to him. And they certainly demonstrate the court's loss ofpatience with him. Butour review ofthe record, 

### 12 Report ofProceedings (May 27, 2014) at 986. 11

### No. 72164-0-1 (consolidated with No. 72165-8-l)/12 

### which includes almost 2,000 pages oftranscript, leads us to conclude thatthe court's comments were not reflective ofeither actual or potential bias. 

### While Kevin did not specifically request recusal or move for 

### disqualification, due process, the appearance offairness, and the Code of Judicial Conduct all require disqualification of a judge who is biased against a 

### party orwhose impartiality may be reasonably questioned.13 Specifically, the appearance offairness doctrine requires thatjudges not only actually be 

### unbiased, butthatthey also appearto be unbiased.14 And the Code of Judicial Conduct requires ajudge to uphold the independence ofthejudiciary and to


### recuse herselfor himselfwhere there is bias against a party.15 "For ajudge to be biased or prejudiced against a person's cause is to have a preconceived adverse opinion with reference to it, withoutjustgrounds or 

### before sufficient knowledge. It is a particular person's state of mindthat affects his opinion orjudgment."16 The trial court is presumed to perform its functions without bias or prejudice.17 A party alleging judicialbias must presentevidence 

### of actual or potential bias.18 We use an objectivetestto determine whether a

13 WolfkillFeed &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). 12No. 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 clearthat during the course ofKevin's testimony, thejudge became 

### convinced that Kevinwas feigning loss ofmemory aboutthings he would rather not admit to, avoiding answering directquestions, and generally refusing to admit any wrongdoing. Inexpressing her assessment of Kevin's testimony, thejudge
was neither signaling her own bias nor gratuitously expressing a general personal opinion about Kevin. Rather, after hearing extensive testimony, the court detailed some ofthe reasons why Kevin's testimony was problematic and made findings about credibility that supported the court's ultimate decision regarding the dependent status ofthe children. There is no evidence inthe record to suggestthatthejuvenile courtjudge had any preconceived bias against Kevin at the outset ofthe case. None ofthe trial court's comments or rulings indicate thatthe courtwas unwilling to consider Kevin's position merely because ofthe allegations ofdomestic violence. Nor do any ofthe court's comments suggest that dependency was a foregone conclusion because ofthe allegations and criminal history. The court expressly observed that, in fact, past commission ofacts ofdomestic violence does not 

### necessitate a finding ofparental fitness. The court noted in its oral rulingthat it
was Kevin's failure to acknowledge and confrontthe issue ofviolence that was 

### mosttroubling. The court expressed confidence that it is possible for parents who once engaged indomestic violence to become "quite fitparents" once they
19 In re Marriage of Davison, 112Wn. App. 251, 257, 48 P.3d 358 (2002) 

### (quoting Sherman v. State, 128 Wn.2d 164, 206, 905 P.2d 355 (1995)). 13No. 72164-0-1 (consolidated with No. 72165-8-l)/14 face the problem and committhemselves to treatment. The court also emphasized the nonpunative purpose ofthe dependency and dispositional order: Mr. Banks, I'm going to lift this order ifand when you get yourself through domestic violence treatment, okay? Iabsolutely am not intending to separate you from yourfamily. I'm intending to getyou 

### through services so you're safe with yourfamily."I201 In sum, the courtwas entitled to make credibility findings based on its observations and the record does not reveal any instance suggesting thatthe juvenile courtjudge developed a personal dislike for Kevin that resulted in bias,

or the appearance of unfairness, or deprived Kevin ofdue process. The record also does not supportthe claim that by actively participating in 

### the hearing, the courttook on the role ofan advocate forthe Department. The 

### judge questioned virtually all ofthe witnesses to varying extents, without aligning herselfwith counsel for any of the parties. And the court's critiques and expressions ofskepticism were not limited to Kevin's testimony. The court 

### pressed many witnesses on various points, includingwitnesses presented by the Department. The court also disagreed withsome ofthe positions taken by the attorney representing the Department. 

### Kevin also claims he was unfairlyprejudiced because of the court's expertise inthe area ofdomestic violence. However, Kevin ignores the context 

### in which this issue arose. The judge's experience and independentviews about domestic violence primarilycame into play when the court perceived thatthe 

### Departmentwas advocating dependency withrespectto Leah based on her status as a domestic violence victim. As reflected in the order of dependency, 

### 20 Report ofProceedings (June 6, 2014) at 1759. 14

### No. 72164-0-1 (consolidated with No. 72165-8-l)/15 

### the court strongly disagreed withthe position that Leah was unable to adequately
care for herchildren merely because she had been subjected to domestic violence. The court's views also appeared to factor intothe dispositional decision placing the children with Leah. In light ofthis context, Kevin fails to 

### explain how he was affected, much less prejudiced, by the court's expertise. Inany 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 distinguishedjudicial service as a trialjudge in the United States District Court for the Eastern District of New York. Kevin cites


### no authority to supportthis novel claim, and we assume there is none. Because the relevantfindings supporting the dependency are unchallenged, the findings supportthe 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