In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth

___________________________

No. 02-21-00278-CV

___________________________

On Appeal from the 393rd District Court

Denton County, Texas

Trial Court No. 19-0707-431

Before Womack, Wallach, and Walker, JJ.

Memorandum Opinion by Justice Womack

IN THE INTEREST OF B.A., B.W., AND B.W., CHILDREN
2

MEMORANDUM OPINION

I. INTRODUCTION

Appellant C.H. (Mother) appeals the trial court’s order terminating her parental 

rights to her children B.A. (Barbara), B.W. (Bella), and B.W. (Bristol) (collectively the 

Children).

1

In her sole issue on appeal, Mother argues that she was deprived of due 

process as a result of the actions and comments of the trial judge who presided over 

the early part of this case (the former trial judge). She alleges that the former trial 

judge was biased and prejudiced, that he advocated on behalf of the Department of 

Family and Protective Services (the Department), and that his sua sponte finding of 

aggravated circumstances denied her the opportunity to engage in services and 

deprived her of due process. Because Mother failed to object at the trial-court level to 

the complaints she now raises on appeal, and because the case was transferred from 

the former trial judge to a different trial judge (of whom Mother makes no complaint) 

who presided over a jury trial that culminated in the termination of Mother’s parental 

rights, we hold that Mother’s complaint is not preserved for our review. Thus, we will 

affirm.

1We use aliases to refer to the Children and their parents. See Tex. Fam. Code 

Ann. § 109.002(d); Tex. R. App. P. 9.8(b)(2).
3

II. BACKGROUND

A. Investigation and Removal

Mother and B.A. (Brad) are the parents of Barbara. Mother and L.W. (Levi) 

are the parents of Bella and Bristol.2

The Department became involved with Mother in June 2018, following a 

domestic incident in which Levi was alleged to have “pull[ed] a gun” on Mother. In 

August 2018, the Department again became involved with Mother after a domesticviolence incident between Levi and Mother that occurred while Barbara and Bella 

were present. As part of that investigation, Mother and Barbara were sent for drug 

testing; Barbara tested positive for cocaine; and Mother testified positive for 

marijuana.3 The Department referred the case to Family-Based Safety Services,4and 

Barbara and Bella were placed with their maternal grandmother.5

2Brad voluntarily relinquished his parental rights to Barbara, and Levi 

voluntarily relinquished his parental rights to Bella and Bristol. The trial court 

terminated Brad’s and Levi’s respective parental rights based on those 

relinquishments. Brad and Levi do not appeal.

3Barbara was five at the time of the drug test. 

4Family-Based Safety Services “is a CPS program that works with parents to try

to keep children in the home.” In re D.C., No. 05-19-01217-CV, 2020 WL 1042692, at 

*1 (Tex. App.—Dallas Mar. 4, 2020, pet. denied) (mem. op.); see 40 Tex. Admin. Code 

§ 700.710.

5Bristol had not been born at this time. 
4

In January 2019, the Department removed Barbara and Bella following a third 

domestic-violence incident at Mother’s apartment that occurred while Bella was 

present. That same month, the Department filed its petition to terminate Mother’s 

parental rights to Barbara and Bella, and the case was assigned to the former trial 

judge. 

B. The Monitored Return, the Car Accident During the Period of the

Monitored Return, and the Subsequent Removal

In November 2019, a different trial judge ordered a monitored return of 

Barbara and Bella to Mother. Two months later, Mother was driving approximately 

seventy miles per hour when her car rear-ended another vehicle. Barbara was in the 

back seat of Mother’s car at the time of the accident, and Barbara was not in a car seat 

and was not wearing a seatbelt. Barbara was taken to the hospital after the accident, 

where she was treated for a fractured arm and a vaginal tear. 

Medical personnel opined that Barbara’s vaginal tear was not caused by the car 

accident but that it was consistent with sexual abuse. Mother initially refused to allow 

Barbara to be examined by a sexual assault nurse examiner (SANE), maintaining that

Barbara’s injury was not caused by sexual abuse. When a SANE examination was 

later attempted, the SANE nurse was unable to complete the evaluation due to the 

stitches and sutures in Barbara’s vaginal area. 

During a forensic interview after the car accident, Barbara told the interviewer 

that “she did not know if anyone had touched her private areas.” Barbara also told 
5

the interviewer that Mother had allowed her to drink an alcoholic drink while they 

were lying in bed one night. Mother denied ever giving Barbara alcohol. The 

Children’s foster mother, however, later recounted an occasion when she had given 

Barbara a water bottle, Barbara had become upset, and Barbara had told the foster 

mother, “I don’t want to drink fuzzy drink. . . . [S]ometimes I drink fuzzy drink when 

I go to bad places.” The foster mother also recounted that Barbara had told her, 

“[Mother] said I have to say my stitches are from the car accident.” 

A few days after the car accident, the Department removed Barbara and Bella 

from Mother’s care, and the former trial judge set a post-removal adversary hearing

for February 2020. The Department also filed a new case requesting the termination 

of Mother’s parental rights to Bristol—who had been born in September 2019—and 

it removed Bristol from Mother’s care. 

In the week following her removal, Bristol was exhibiting irritability, fussiness, 

inconsolability, heavy sweating, and tremors. As described by the Children’s foster 

mother, Bristol “scream[ed] uncontrollably for a period of ten hours at one point.”

Bristol was taken to Children’s Medical Center in Dallas, where she was diagnosed 

with drug withdrawal and where she stayed for three days.

C. The Complained-Of Adversary Hearing Before the Former Trial Judge

A post-removal adversary hearing took place before the former trial judge over 

two days in February 2020. The complaints Mother makes now on appeal stem from 
6

certain actions and comments may by the former trial judge at the post-removal 

adversary hearing. 

1. Interrogation of Witnesses

Mother complains that at the hearing, the former trial judge “actively 

interrogated witnesses and [Mother] herself, effectively advocating for the 

Department.” Mother points to four examples of this alleged interrogation of 

witnesses. 

First, Mother points to questions that the former trial judge asked during 

Mother’s cross-examination of a nurse, after the nurse testified that one of the 

Children had tested positive for COVID-19:

[The Former Trial Judge]: I’m sorry, but I have to know. Do you all not 

ask, under those circumstances, ask questions about whether—obviously 

the child may not have traveled to China or a country where that virus 

has originated, but ask about international travel and contact that may 

have led to the child being exposed?

[The Witness]: Always. That’s actually—

[The Former Trial Judge]: Did you—

[The Witness]: That’s actually prompted, and we do assess those.

[The Former Trial Judge]: Did you find anything out in that regard?

[The Witness]: There was no travel.

[The Former Trial Judge]: Huh?

[The Witness]: There was no international travel. Is that what you are—
7

[The Former Trial Judge]: Right. No reason to believe the child was 

exposed through someone else’s international travel?

[The Witness]: Correct.

[The Former Trial Judge]: Is that virus now randomly occurring?

[The Witness]: There are hundreds of strains of Coronavirus, so this is 

basically a cold. So this is not the strain that we see in China. So 

that’s—

[The Former Trial Judge]: I thought this was like a sudden Ebola 

outbreak.

[Mother’s Attorney]: No, Your Honor.

[The Former Trial Judge]: Forgive us. Us lawyers are not real smart.

[The Witness]: When I saw that pop up, I thought, wow, she’s not sick. 

But it shows she had an exposure.

[The Former Trial Judge]: All I could think about is how in the world is 

this infant being exposed to Coronavirus. Did not know that. Thank 

you.

[The Witness]: No. This is just basically a common cold.

[The Former Trial Judge]: I will resume being blissfully ignorant. 

Second, Mother points to the following exchange that occurred during the 

Department’s examination of one of its investigators, who was testifying about 

conversations with Mother regarding the car accident:

[The Former Trial Judge]: I’m sorry, then I got to interrupt. You said 

just a little while ago that [Mother] reported to you that [Barbara] was in 

the back seat.

[The Witness]: So the evening of the incident she was in the back seat 

because they were on their way to get the four-year-old. And the other 
8

two children were still in daycare. I’m not sure as to why she wasn’t in a 

car seat at that time, but the explanation was the other—

[The Former Trial Judge]: Okay. I’m just trying to make sure I’m not—

I’ve heard you reference back and front both now.

[The Witness]: Yes.

[The Former Trial Judge]: So are you saying that she told you generally 

that [Barbara] will ride in the front seat, but at the time of the accident 

[Barbara] was in the back seat?

[The Witness]: That’s correct.

[The Former Trial Judge]: Okay. Because the other children weren’t in 

the car with them?

[The Witness]: They were not, yes.

[The Former Trial Judge]: Thank you for clarifying. 

Third, Mother points to several questions that the former trial judge asked 

Mother following the Department’s redirect examination of her. The complained-of 

questions included questions regarding Mother’s marital status, Levi’s incarceration,

the identity of Bristol’s father, whether Bristol had any Native American ancestry, 

whether Barbara cried during the car accident, the speed Mother was traveling during 

the car accident, whether she applied her brakes before the impact, the facts relating 

to how Barbara got into the back seat of the car on the day of the accident, whether 

the base of the car seat was in the car, whether the base of the car seat was buckled, 

and whether Mother had verified that Barbara was buckled in the car on the day of 

the accident. 
9

Fourth, Mother points to the following exchange that occurred at the 

conclusion of the testimony from the Children’s maternal grandmother:

[The Former Trial Judge]: Ma’am, do you not realize that children 

[Barbara’s] age and younger are supposed to be in car seats?

[The Witness]: I did not know, because [Barbara] is not a little girl. I 

was going by the weight requirement.

[The Former Trial Judge]: So what’s the weight requirement?

[The Witness]: 70 pounds. I swear I thought it was 70 pounds.

[The Former Trial Judge]: Where did you get that?

[The Witness]: My kids are grown.

[The Former Trial Judge]: I wouldn’t necessarily expect you to know.

2. Inappropriate Comments

Mother also complains that at the hearing, the former trial judge made certain 

comments that were inappropriate and demonstrated that he “harbored a deep-seated 

antagonism towards [Mother].”

6 Mother points to the following statement made by

the former trial judge just before both sides gave their closing arguments at the 

hearing:

6

In its brief, the Department argues that the former trial judge made several 

favorable rulings to Mother and that he also expressed “anger and frustration” toward 

one of the Department’s witnesses. The Department points to an exchange the 

former trial judge had at a later hearing with a Department caseworker who was 

testifying as a witness, where the former trial judge stated, “Oh, my God, please 

answer the question. You know the answer. Give her the answer.” The former trial 

judge went on to tell the caseworker, “No, it is not appropriate. My God, is it really 

that difficult to admit? Please ask your next question. Holy crap.”
10

At best, that day mother committed the offense, the felony offense of 

endangering a child, at best. And, at best, mother committed the felony 

offense of injury to a child. I don’t know why mother wasn’t arrested. I 

don’t know why mother has not been charged. But I have no control 

over that.

What I do know is that mother’s direct actions, and not just 

omissions, actions, justified those two felony charges. And but for the 

grace of God we have not had to bury [Barbara]. And it seems like 

that’s lost on everybody while we are arguing about sexual abuse. I don’t 

know a parent, I guess I should say I don’t know a good parent that 

wouldn’t, with absolute certainty, verify that their child is buckled in the 

back seat if they are going to be hopping on the highway going 70 miles 

an hour. No good parent would find themselves in that situation.

Mother also points to the following exchange that occurred when the 

Children’s foster mother was testifying regarding the Children’s progress in her care:

[The Witness]: [Bristol] is also doing well. She didn’t have any 

significant medical concerns during that time at all, or since. She has 

seasonal allergies. That’s kind of the biggest medical thing. She has 

some displaced anger. She gets very angry at things and throws, hits, 

screams quite often. She stomps her feet. Again, she is 18 months old, 

so—

[The Former Trial Judge]: Have you ever met a woman that doesn’t do 

that?

3. Sua Sponte Finding of Aggravated Circumstances

Mother also complains that at the hearing, the former trial judge made a sua 

sponte finding of aggravated circumstances which denied her the opportunity to 

engage in services and denied her due process. See Tex. Fam. Code Ann. § 262.2015. 

Mother claims that “it was clear from the outset that [the former trial judge] had 

already decided what he was going to do, and he would do anything to make sure that 
11

the results in ‘his’ court met with his expectations.” Mother points to a statement 

made by the former trial judge at the conclusion of the first day of the hearing, where 

he stated,

I think the circumstances also may very well lead to an aggravated 

circumstances finding. So I would like you to think about that relative to

the services the Department is asking for, and whether there should even

be services at all, based on findings that the Court may be able to make 

relative to the allegations and the evidence presented so far.

Mother next points to a statement made by the former trial judge on the 

second day of the hearing, prior to closing arguments, where he stated,

I think there should be [an] aggravated circumstances finding. I don’t 

think there is any need for a service plan at this point. I don’t think

there is any need for the Department to attempt to return the children to 

[M]other. I think there needs to be a jury trial set sooner rather than 

later. I will entertain your argument on why I shouldn’t do that. That’s 

what I am inclined to do.

I understand there are other factors that extend beyond merely 

findin[g] that a parent has committed those offenses. But what is 

disturbing above all is that all this occurred, it would be one thing if this 

just happened, and I guess to some extent all parents are entitled to be 

given some deference that they won’t be perfect and they will make

mistakes. But this all happened at a time when [Mother] was under this 

Court’s scrutiny, when [Mother] was under the Department’s scrutiny, 

[the attorney ad litem’s] scrutiny, CASA’s scrutiny, at a time when she 

was supposed to be demonstrating to us that she can provide her 

children with a safe and stable environment. Bam. 70 miles an hour. 

Could have killed that child. Makes me sick. And I don’t understand 

why, based on the evidence that has been presented, there’s not just an 

aggravated circumstances finding and a trial set.

At the conclusion of the hearing, the former trial judge made a finding of 

aggravated circumstances—even though the Department did not specifically request a 
12

finding of aggravated circumstances—and he set a trial date for June 1, 2020. See id. 

The former trial judge later signed a written order finding aggravated circumstances 

against Mother.

D. The Transfer to the 393rd District Court, the Jury Trial Before the 393rd

District Court, and the Final Termination Order

On January 15, 2021,7the cases involving the Children were transferred from 

the 431st District Court to the 393rd District Court “as part of the reallocation of 

caseloads for the District Courts of Denton County.” The case involving Barbara and 

Bella was later consolidated with the case involving Bristol. 

In July 2021, the trial judge of the 393rd District Court presided over a nineday jury trial on the merits of the Department’s petition to terminate Mother’s 

parental rights to the Children. At the conclusion of the trial, the jury unanimously 

found that Mother’s parental rights to the Children should be terminated under 

predicate grounds (D), (E), and (O) and that termination of her parental rights was in 

the best interest of the Children. See id. § 161.001. The trial judge of the 393rd 

District Court later entered a final order of termination consistent with the jury’s 

findings.8 Mother appeals from that termination order.

7Although trial had been set for June 1, 2020, the trial date was continued due 

to the COVID-19 pandemic. 

8The former trial judge’s aggravated-circumstances finding was not mentioned 

in the jury charge, nor was it mentioned in the final order of termination. Moreover, 

the trial judge of the 393rd District Court granted Mother’s limine request that the 

parties not reference the former trial judge’s aggravated-circumstances finding.
13

III. DISCUSSION

In her sole issue on appeal, Mother argues that the former trial judge was

biased and prejudiced, that he advocated on behalf of the Department, and that his

sua sponte finding of aggravated circumstances denied her the opportunity to engage 

in services and deprived her of due process. The Department counters that because 

Mother failed to object to any of the complained-of actions or comments by the

former trial judge, Mother has failed to preserve the complaints she is now making on 

appeal. While Mother admits that “her appointed trial counsel failed to object to [the 

former trial judge’s] unreasonable behavior and failed to request that [the former trial 

judge] recuse [himself],” Mother contends that her failure to object “does not operate 

as a waiver of error.”

A. The Law on Preservation

To preserve a complaint for appellate review, a party must present to the trial 

court a timely request, objection, or motion that states the specific grounds for the 

desired ruling, if not apparent from the request’s, objection’s, or motion’s context. 

Tex. R. App. P. 33.1(a)(1)(A); see also Tex. R. Evid. 103(a)(1). If a party fails to do this, 

error is not preserved. Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991) (op. on reh’g). 

With respect to a complaint regarding a trial judge’s alleged improper conduct or 

comments, “[t]he claimant bears the burden to ‘explain how any comments made by 

the trial judge were incurable or would excuse’ the claimant’s ‘failure to preserve

error.’” In re Commitment of Stuteville, 463 S.W.3d 543, 557 (Tex. App.—Houston [1st 
14

Dist.] 2015, pet. denied) (quoting Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 

2001)).

Error that falls within the narrow category of “fundamental error” requires no

trial-court predicate for appellate review. In re B.L.D., 113 S.W.3d 340, 350 (Tex. 

2003). Fundamental error exists in rare instances in which error directly and adversely 

affects the interest of the public generally, as that interest is declared by the statutes or 

constitution of our state, or instances in which the record affirmatively and

conclusively shows that the court rendering the judgment lacked subject-matter 

jurisdiction. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 577 (Tex. 2006). 

Although not framed in terms of fundamental error, the Texas Supreme Court 

has recognized that claims of judicial bias would not be waived by a failure to object

in the trial court if “the conduct or comment cannot be rendered harmless by proper 

instruction.” Dow Chem., 46 S.W.3d at 241. As we have explained previously, “[t]his 

‘limited,’ ‘narrow,’ and ‘rare’ exception to the preservation-of-error requirements in

civil cases essentially requires a harm analysis—the error ‘probably caused the 

rendition of an improper judgment’—to determine if the error was incurable and, 

therefore, not subject to waiver.” In re L.S., No. 02-17-00132-CV, 2017 WL 4172584, 

at *16 (Tex. App.—Fort Worth Sept. 21, 2017, no pet.) (mem. op.) (first citing Tex. R. 

App. P. 44.1(a)(1); then citing B.L.D., 113 S.W.3d at 350–51; then citing In re K.R., 

63 S.W.3d 796, 799–800 (Tex. 2001); and then citing Dow Chem., 46 S.W.3d at 241).
15

B. Application of the Law to the Facts

Here, it is undisputed that Mother did not object at the trial-court level 

regarding the complaints she now makes on appeal. And Mother does not argue that 

the trial court lacked subject-matter jurisdiction nor contend, let alone demonstrate, 

that the former trial judge’s actions and comments directly and adversely affected the 

public interest as declared in the statutes or constitution of our state. See Mack Trucks, 

206 S.W.3d at 577. Thus, the issue of whether Mother has preserved her complaints

turns on whether the alleged error “probably caused the rendition of an improper 

judgment.” L.S., 2017 WL 4172584, at *16.

Having reviewed the record and Mother’s complaints, we cannot say that the 

alleged error “probably caused the rendition of an improper judgment.” See id. The 

actions and comments made by the former trial judge that Mother complains of 

occurred at the post-removal adversary hearing in February 2020. Subsequent to that 

hearing, the case was transferred to the 393rd District Court, and the trial judge of the 

393rd District Court—not the former trial judge—presided over a nine-day jury trial

in July 2021. Mother makes no complaint regarding the trial judge of the 393rd 

District Court and no complaint regarding the July 2021 jury trial, and Mother does 

not explain how the actions and comments of the former trial judge impacted the 

results of the July 2021 jury trial.9 Indeed, the relief that Mother seeks on appeal—

9To the extent that Mother complains that the former trial judge’s sua sponte 

finding of aggravated circumstances limited her ability to engage in services, we note 
16

that we reverse the termination order and remand the case back to the trial court—

seems redundant when the case was already transferred away from the former trial 

judge and where a trial before a different judge has already taken place. 

To support her argument, Mother points us to L.S., a termination case 

involving the former trial judge, where we held that the former trial judge’s conduct in 

that case demonstrated a “deep-seated antagonism” against one of the parents that 

deprived the parent of “a fair trial before an impartial fact-finder and resulted in 

fundamental and harmful error.” 2017 WL 4172584, at *21. In L.S., we detailed

numerous instances where the former trial judge demonstrated his bias against the 

parent, and we noted that the final termination hearing was a bench trial before the 

former trial judge. Id. at *5–13. We ultimately held that “[b]ased on the exceptional 

and singular facts that are clearly shown in the record here, . . . [the former trial judge] 

ceased to be a neutral and unbiased fact-finder . . . which probably resulted in the

rendition of an improper judgment . . . .” Id. at *1. We thus reversed the order of 

termination and remanded the case for a new trial before a different trial judge. Id. 

at *21.

that complaints regarding a trial court’s finding of aggravated circumstances made in a 

temporary order are moot after rendition of a final termination order. See In re A.K., 

487 S.W.3d 679, 683–84 (Tex. App.—San Antonio 2016, no pet.) (holding that 

father’s complaints about aggravated-circumstances findings in temporary orders were 

mooted by final termination order); M.Z. v. Tex. Dep’t of Fam. & Protective Servs.,

No. 03-13-00858-CV, 2014 WL 2191978, at *6 n.8 (Tex. App.—Austin May 22, 2014, 

no pet.) (mem. op.) (holding that mother’s complaint about aggravated-circumstances 

finding in temporary order was mooted by final termination order).
17

Even though L.S. involved the same trial judge as the one at issue here, L.S. is

easily distinguishable. In L.S., the Department’s termination petition was tried in a 

bench trial before the former trial judge. Id. at *7 n.11. Here, in contrast, the 

Department’s termination petition was tried before a jury presided over by the trial

judge for the 393rd District Court. Thus, while in L.S. we held that the former trial 

judge’s actions and comments “probably resulted in the rendition of an improper 

judgment,” we cannot say the same here. Id. at *21. Accordingly, Mother has not 

preserved the complaints she makes on appeal. See Tex. R. App. P. 33.1(a)(1)(A); Dow 

Chem., 46 S.W.3d at 241; Bushell, 803 S.W.2d at 712; L.S., 2017 WL 4172584, at *16. 

We overrule Mother’s sole issue.

IV. CONCLUSION

Having overruled Mother’s sole issue, we affirm the termination order.

/s/ Dana Womack

Dana Womack

Justice

Delivered: January 27, 2022