CLEVE ALLEN GOHEEN-RENGO, Appellant. CHUN, J.

— Goheen-Rengo appeals the denial of his motion for a new parental rights termination trial. The State argues that Goheen-Rengo did not timelyfile his motion and thatthe motion fails on the merits. Assuming without deciding the motion was timely, we conclude it lacks merit and affirm. BACKGROUND In 2017, a Whatcom County Superior Courtjudge held a trial considering the termination of Goheen-Rengo’s parental rights. In preparation forthe trial, the trialjudge reviewed Goheen-Rengo’s dependency case. In doing so, she noted that, in prior hearings, thejudicial officer had two deputies present because ofsafety concerns with Goheen-Rengo. The trial judge consulted with an IN THE COURT OFAPPEALS OF THE STATE OF WASHINGTON In the Matter ofthe Welfare of D.M.R., DOB: 10/02/14, M.R. DOB: 10/02/14, No. 79206-7-I and U.C.R., DOB: 11/28/13, (Consolidated with No. 79207-5 and No. 79208-3) STATE OFWASHINGTON, DEPARTMENT OF SOCIALAND DIVISION ONE HEALTH SERVICES, Respondent,

v. UNPUBLISHED OPINION

FILED: September 23, 2019No. 79206-7/2

undersheriffto develop a security plan, and based on their recommendation, planned to have two deputies in the courtroom at all times. Attrial, Goheen-Rengo made a number ofthreatening statements. Referring to the social workers, attorneys, and others in the courtroom, Goheen Rengo said that “[they] should all be in a box in the desert.” In his testimony, he admitted that he tried bring knives into the courthouse during trial. He told the people presentthat “[they] should all be afraid of me,” and mentioned that he owned a gun and regularly practiced marksmanship. The day before the ruling to terminate his parental rights, as the trial judge exited the court clerk’s office, Goheen-Rengo stood outside and stared at her. Goheen-Rengo said nothing to thejudge, but she had to “brush past him” to get around him. On March 15, 2017, the courtterminated Goheen-Rengo’s parental rights.1 On June 6, 2017, Goheen-Rengo posted a photo on Facebook of himself holding a gun, captioned, “Return the Rengo Children NOW! Or Else.” After seeing the post, the termination trialjudge became concerned. The Whatcom County Prosecutor charged Goheen-Rengo with intimidating ajudge shortly thereafter. The affidavit of probable cause forthe charge noted thatthe termination trialjudge purchased a firearm for personal protection and took classes on howto use it out ofconcern from Goheen-Rengo’s behavior attrial.

1 Goheen-Rengo appealed this decision, which we affirmed on March 5, 2018. Inre Dependency of D.M.R., No. 76721-6-I (Wash. Ct. App. Mar. 5, 2018) (unpublished), http://www.courts.wa.gov/opinions/pdf/767216.pdf. The Washington State Supreme Court denied Goheen-Rengo’s subsequent motion for discretionary review on August 8, 2018, cause no. 95684-7. 2No. 79206-7/3
On October23, 2017, Goheen-Rengo’s criminal defense attorney interviewed the termination trialjudge. During the interview, thejudge said that she took a firearms use course during trial, received a concealed carry permit around the time of her ruling, and purchased a gun two orthree weeks afterthe ruling. Thejudge also said she held strong anti-gun views until February2017, butthat changed because of Goheen-Rengo’s behaviorattrial and her general
awareness that Goheen-Rengo had showed up at his fosterchildren’s new homes, and on another instance had rifled through the trash ofone ofthe children’s guardian ad item. Forthe same reasons, thejudge also purchased a home security system during trial. After learning ofthe foregoing interview, on April 24, 2018, Goheen Rengo’s counsel from the termination trial filed a motion fora newtrial under CR 60(b)(3) and (11). A Skagit County Superior Court commissioner heard the motion as a Whatcom County matterand denied it as untimely and on its merits. Goheen-Rengo moved for revision ofcommissioner’s ruling. A Skagit County Superior Courtjudge denied the motion, stating as follows: [1]. The Motion for NewTrial was untimely. [2]. [Goheen-Rengo] failed to establish that the trial judge was biased or that any evidence alleged to be newly discovered would have changed the outcome ofthe proceedings. Goheen-Rengo appeals. ANALYSIS Goheen-Rengo argues the Skagit County Superior Courtjudge erred in denying his motion fora newtrial under CR 60(b)(3) and CR 60(b)(1 1). The

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State requests we affirm on the basis thatthe motion was untimely and unfounded on the merits. Assuming without deciding that Goheen-Rengo timely filed his CR 60(b) motion, itfails on the merits. We review a court’s decision under CR 60(b) for abuse ofdiscretion. In re Dependency ofJ.M.R., 160 Wn. App. 929, 938 n.4, 249 P.3d 193 (2011). We will respectthe trial court’s decision unless it exercised its discretion on untenable grounds or untenable reasons. J.M.R., 160 Wn. App. at 938 n.4. A. CR 60(b)(1 1) Goheen-Rengo moved for a newtrial under CR 60(b)(11). The State argues his motion under60(b)(1 1) lacks merit because he received due process and the termination trialjudge was not actually or potentially biased against him. We agree with the State. Atrial court may grant a newtrial under CR 60(b)(1 1) for“{a]ny other
reason justifying relieffrom the operation ofthejudgment.” CR 60(b)(1 1). Specifically, Goheen-Rengo advances two theories to support his CR 60(b)(1 1) motion: (1) the trial court proceedings had an objectively impermissible risk of bias in violation ofthe Due Process Clause ofthe United States Constitution’s 14th Amendment, and (2) the termination trialjudge had actual or potential bias against him in a waythatviolated Washington’s appearance offairness doctrine. 1. Due Process Due process requires a fairtrial in a fairtribunal. In re Murchison, 349 U.S. 133, 136, 75 5. Ct. 623, 99 L. Ed. 942 (1955). But most issues ofjudicial disqualification do not rise to a constitutional level. Ca~erton v. A.T. Massey
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Coal Co., 556 U.S. 868, 876, 129 S. Ct. 2252, 173 L. Ed. 2d 1208 (2009) (citing Fed. Trade Comm’n v. Cement Institute, 333 U.S. 683, 702, 68 5. Ct. 793, 92, L. Ed. 1010 (1948)). Because the states’ codes ofjudicial conduct may provide
more protection than due process requires, courts resolve most disputes over disqualification without resortto the Constitution; only rarelywill due process mandate disqualification. Caperton, 556 U.S. at 889-890. When examining whether due process mandates disqualification, a court conducts an objective inquiry, asking not “whetherthejudge is actually, subjectively biased, but whetherthe averagejudge in [their] position is ‘likely’ to be neutral, orwhether there is an unconstitutional ‘potential for bias.” Caperton, 556 U.S. at 881. Only in fourfactual categories has the United States Supreme Courtfound
an unconstitutional potential for bias in violation ofthe Due Process Clause: first, where ajudge has a direct, personal, substantial, pecuniary interest in a case, (Tumeyv. Ohio, 273 U.S. 510, 523, 47 S. Ct. 437,71 L. Ed. 749 (1927)); second, where ajudge oversees a criminal contempt proceeding and “previouslyserved
as a grandjuror in the same case, orwhere the party charged with contempt has conducted an insulting attack upon the integrity ofthejudge carrying such potential for bias as to require disqualification,” (Williams v. Pennsylvania, 136 5. Ct. 1899, 1912, 195 L. Ed. 2d 132 (Roberts, C.J., dissenting on othergrounds) (2016) (internal quotation marks omitted) (citing Mayberry v. Pennsylvania, 400 U.S. 455, 466, 91 S. Ct. 499, 27 L. Ed. 2d 532 (1971)); third, where an individual with a stake in a case had a significant and disproportionate role in placing a judge on the case through the campaign process, (Caperton, 556 U.S. at 884);
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and fourth, where ajudge has had an earlier significant, personal involvement as a prosecutor in a critical decision in the defendant’s case, (Williams, 136 S. Ct. at 1899). The facts advanced by Goheen-Rengo hardly compare to these “extreme” and “extraordinary” scenarios thatthe United States Supreme Court hasjudged violate due process. See Caperton, 556 U.S. at 887-888. The Court has purposefully narrowed the doctrine ofdisqualification on the basis ofthe Due Process Clause; and it has explicitly recognized thatthe states, through their codes ofjudicial conduct, policejudicial integrity and may “adopt recusal standards more rigorous than due process requires.” Caperton, 556 U.S. at 887- 890 (accord with Tatham v. Rogers, 170 Wn. App. 76, 92, 283 P.3d 583 (2012)). Goheen-Rengo’s assertions ofjudicial bias do not rise to the level ofa denial of due process. 2. Appearance of Fairness Aviolation ofWashington’s appearance offairness doctrine canjustify vacation ofjudgment under CR 60(b)(1 1). Tatham, 170 Wn. App. at 81. Under the appearance offairness doctrine, ajudicial proceeding is valid only ifa reasonably prudent person would conclude that all parties obtained a fair, impartial, and neutral hearing. State v. Solis-Diaz, 187 Wn.2d 535, 540, 387 P.3d 703 (2017) (citing State v. Gamble, 168 Wn.2d 161, 187, 225 P.3d 973 (2010)). “The party asserting a violation ofthe appearance offairness must show ajudge’s actual or potential bias.” Solis-Diaz, 187 Wn.2d at 540. “Because the trial court is presumed to perform its functions regularly and
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properlywithout bias or prejudice, a party asserting a violation ofthe appearance offairness doctrine must produce sufficient evidence demonstrating bias, such
as personal or pecuniary interest on the part ofthe decision maker; mere speculation is not enough.” Tatham, 170 Wn. App. at 96 (internal quotation marks and citation omitted). Ajudge’s failure to recuse when required to do so bythejudicial canons also violates the appearance offairness doctrine. Tatham, 170 Wn. App. at 94. Rule 2.11(A) ofthe Code ofJudicial Conduct requires that ajudge recuse in any proceeding in which thejudge’s impartiality might reasonably be questioned. Goheen-Rengo asserts thatthe termination trialjudge had actual or potential bias towards him and that she should have recused herselffrom the proceedings. In support of his argument ofactual or potential bias, he alleges thatthe termination trialjudge admitted in her [interview] that herfearof [Goheen-Rengo] affected the way she listened to the testimony attrial,” and “filtered the testimonythrough the lens of herown personal risk assessment.” Butthese propositions are unsupported bythe portions ofthe interview he cites. Instead ofaddressing her perception of his testimony, the termination trialjudge spoke aboutthe courtroom and home security measures she took as a result of his threats and pattern ofshowing up atthe homes ofother parties relevantto his children’s foster care. In the other portion cited by Goheen-Rengo, the trialjudge discussed her perception ofthe threatposed by Goheen-Rengo, but did not say thatthe threat posed by him changed her perception of his testimony. These portions of her interview do not support a finding ofactual or potential bias.
7No. 79206-7/8 Relieving Goheen-Rengo ofthe terminationjudgmentwould allow him to benefitfrom his own threats. In State v. Bilal, 77 Wn. App. 720, 725, 893 P.2d 674 (1995), the court ruled thatthe trial court did not err in denying a recusal motion filed by a criminal defendant afterthe defendant assaulted thejudge in open court between the verdict and sentencing. Since this was a matteroffirst impression in Washington, the court surveyed cases from across other jurisdictions and found no instances ofa defendant securing recusal because of theirthreats to the court. Bilal, 77 Wn. App. at 724. In deciding thatthe trial court properly denied the recusal motion and finding no violation ofthe appearance offairness doctrine, the court reasoned that a defendant should not benefitfrom his own threats or use offorce against the court. BUal, 77 Wn. App. at 725.Goheen-Rengo falls short ofshowing actual or potential bias, orthatthe termination trialjudge’s impartiality might reasonably be questioned. Besides making unsupported claims thatthe termination trialjudge “filtered the testimony through the lens of herown personal risk assessment,” Goheen-Rengo makes
no showing that his behavior caused thejudge to change herdemeanortowards him during trial. Goheen-Rengo’s accusations of bias amount onlyto mere speculation. These accusations do not show actual or potential bias, and by extension a violation ofthe appearance offairness doctrine underTatham. ~ Tatham, 170 Wn. App. at 96. Finally, Goheen-Rengo argues that by requiring a showing of“actual bias,” the court reviewing his CR 60(b) motion applied the wrong legal standard
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constituting a perse abuse ofdiscretion under State v. Quismundo, 164 Wn.2d 499, 504, 192 P.3d 342 (2008). He asserts thatthe court should have reviewed instead foractual or potential bias. But even ifthe Skagit County Superior Court judge reviewed onlyfor actual bias, as discussed above, the record does not support a finding of potential bias. See State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003) (even ifa trial court abuses its discretion, an appellate court may affirm on any ground within the pleadings and proof). B. CR 60(b)(3) Atrial court may grant a motion fora newtrial underCR 60(b)(3) where there is “{n]ewly discovered evidence which by due diligence could not have been discovered in time to move fora newtrial under rule 59(b).’ CR 60(b)(3). A moving partyjustifies vacating ajudgment on the grounds of newly discovered evidence when they establish thatthe evidence: ‘(1) would probably change the result ifa newtrial were granted, (2) was discovered since trial, (3) could not have been discovered before the trial bythe exercise ofdue diligence, (4) is material, and (5) is not merely cumulative or impeaching.” Jones v. City of Seattle, 179 Wn.2d 322, 360, 314 P.3d 380 (2013). Afailure to show any one of these five factors willjustify denial ofthe CR 60(b)(3) motion. State v. Swan, 114 Wn.2d 613, 642, 790 P.2d 610 (1990). Here, Goheen-Rengo fails to show any new evidence thatwould probably change the result of his parental rights termination proceeding. Goheen-Rengo argues thatthe newly discovered evidence from the interview shows an unconstitutional risk of bias on behalfofthe termination trialjudge, mandating a
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newtrial. But as discussed above, there was no unconstitutional riskthatthe termination trialjudge had a bias against Goheen-Rengo. Nordid the termination trial judge have actual or potential bias in violation ofthe appearance offairness doctrine. As such, Goheen-Rengo has made no showing thatthe evidence from the interviewwould have changed the outcome of his trial. Because Goheen-Rengo does not satisfythis factor, the Skagit County Superior Courtjudgejustifiably denied his CR 60(b)(3) motion. The Skagit County Superior Courtjudge acted within his discretion in rejecting the merits of Goheen-Rengo’s CR 60(b) motion. Affirmed.

WE CONCUR:

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