Mental Health Examination No Basis for Judicial Recusal in Nashville, Tennessee Child-Custody Dispute:

Facts: After only eight months of marriage, Mother and Father engaged in postdivorce litigation about their one child for over four years.

In the divorce, Father was awarded very limited supervised visitation based on Mother’s allegations of domestic violence and suspected sexual abuse of their child. Several investigations by the Department of Children’s Services (DCS) ensued, none of which resulted in any findings of abuse.

Father later moved to increase his parenting time, whereupon Mother reasserted her allegations of sexual abuse of the child. Again, several investigations by DCS followed, none of which resulted in any findings of abuse. Despite her serious allegations, Mother eventually agreed to increase Father’s parenting time from 16 days per year with no overnight visits to 96 days per year with overnight visitation.

accuseA year later, Father filed another petition to modify, this time seeking to be designated the primary residential parent and to be awarded sole decision-making authority over the child. As you may have guessed by now, several investigations of Father by DCS followed, none of which resulted in any findings of abuse.

When Mother failed to timely disclose several experts regarding sexual assault allegations in violation of the scheduling order, the trial court excluded the experts. Mother asked that the judge recuse himself, arguing the judge’s ruling resulted from bias. The recusal motion was denied.

The day the trial was to begin, the trial court took the bench to announce that trial would not take place because, having read the parties’ pretrial submissions and pleadings, the trial court, acting on its own initiative, lodged a motion for Mother to submit to a mental health examination under Rule 35 because of

the numerous, numerous DCS filings that she has either made or someone made on her behalf. And I believe that there could possibly be parental alienation in this case. . . . I’m thinking that will be necessary for me to address the best interest of the child.

The trial court ordered the parties to appear the next day for hearing on whether a Rule 35 examination should be ordered. Father and his counsel appeared as scheduled. Mother and her counsel did not appear.

At the hearing, the trial court noted Mother’s absence. The trial court ruled that Mother would have to undergo a mental health examination at her expense within 45 days.

Later, Mother argued the trial court had no evidence from which to conclude that good cause existed to order a Rule 35 examination. The trial court rejected Mother’s argument and entered its order.

Mother moved for recusal a second time based on the trial court’s ruling on the Rule 35 issue.

The trial court denied Mother’s recusal motion.

Mother appealed.

On AppealThe Court of Appeals affirmed the trial court.

Tennessee Code of Judicial Conduct Rule 2.11 requires a judge to recuse him or herself in any proceeding in which the judge’s impartiality might reasonably be questioned.

The preservation of the public’s confidence in judicial neutrality requires not only that the judge be impartial but also that the judge be perceived to be impartial. Even where a judge sincerely believes that he or she can preside over a matter fairly and impartially, the judge should nevertheless recuse him or herself when a reasonable person in the judge’s position, knowing all the facts known to the judge, would find a reasonable basis for questioning the judge’s impartiality.

The terms “bias” and “prejudice” refer to a state of mind or attitude that works to predispose a judge for or against the party. The words suggest a favorable or unfavorable disposition or opinion that is somehow wrongful or inappropriate because it is excessive, undeserved, or rests on knowledge the judge should not possess.

Bias is often divided into two types, each of which implicates a different standard for determining whether recusal is warranted. Where the bias stems from an extrajudicial source, rather than from events or observations during litigation, it may justify recusal if the judge’s behavior raises reasonable questions about the judge’s impartiality. Where, however, the bias is alleged to stem from events occurring in the course of the litigation, the party seeking recusal has a greater burden to show that the bias is so pervasive that it will deny the litigant a fair trial.

After examining this unusual situation, the Court concluded that the trial court properly denied the recusal motion:

Mother asserts that the bias in this case stems from an extrajudicial source: Father’s pretrial brief and other pleadings. Respectfully, we cannot agree. As an initial matter, Mother cites no caselaw in which pleadings were held to constitute extrajudicial sources for purposes of determining bias. Our research has likewise revealed no caselaw in which a trial court was found to have considered an extrajudicial source for purposes of recusal merely by reviewing and relying on the filings of the parties to the very case at issue. The term extrajudicial is defined as “outside court” or “out-of-court.” While we agree that Father’s allegations in his pretrial brief are not evidence, neither are Father’s allegations extrajudicial statements as they were filed with the court. Indeed, this argument borders on the absurd where trial courts are often called upon to evaluate pleadings prior to the submission of any evidence. Forming an opinion of litigants and issues based on what is learned in the course of judicial proceedings is necessary to a judge’s role in the judicial system. To hold the trial court’s evaluation of pleadings constitutes consideration of extrajudicial sources that subjects the trial court to the more stringent standard for recusal would be untenable.

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Here, Mother asserts that “it is unclear where the trial court got its information on which it appeared so convinced that it deemed any evaluation of [Mother] necessary.” Respectfully, the record on appeal indicates exactly where the trial court learned the information concerning the sexual abuse allegations: the parties’ pleadings. Both parties’ pleadings raised the issue of sexual abuse and/or false allegations of sexual abuse. . . . Moreover, while we agree that Father’s pretrial brief did not constitute evidence, Father attached to his pretrial brief an interrogatory response submitted by Mother in which she recounted numerous contacts with police and child services workers concerning allegations against Father . . . . Despite these ongoing allegations, DCS had never intervened in any fashion to prevent Father’s visitation with the child, nor does it appear from the record on appeal that Mother sought termination of Father’s visitation.

Under the circumstances, we cannot find fault in the trial court’s conclusion that the specter of false sexual abuse allegations was raised by the pleadings in this case.

Is improper for a trial court to file a Rule 35 motion on its own initiative? The Court suggests not:

Mother has cited no law . . . that indicates that a trial court may not order a Rule 35 examination on its own motion. Other trial courts appear to have made similar rulings without dispute.

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Indeed, we agree that the procedure utilized by the trial court in this case was unusual. We simply hold that the trial court’s decision to lodge a sua sponte motion for a Rule 35 examination and to ultimately order an examination in this case do not create an appearance of bias for which recusal is necessary.

The case was remanded to the trial court for further proceedings.

K.O.’s Comment: Mother remains free to seek an interlocutory appeal of the trial court’s order regarding the Rule 35 examination.

C.D.B. v. A.B. (Tennessee Court of Appeals, Middle Section, April 26, 2018).

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K.O. Herston is a family-law attorney in Knoxville, Tennessee whose practice is devoted exclusively to family law, including divorce, child custody, child support, alimony, prenuptial agreements, and other aspects of family law.

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