Facts: Maternal Grandparents filed a dependency and neglect action in juvenile court against Mother and Father.

After the preliminary hearing, the Magistrate found Mother’s testimony was not credible and awarded temporary custody to Maternal Grandparents.

Mother filed a Tennessee Supreme Court Rule 10B (“Rule 10B”) motion for the Magistrate’s recusal alleging that the Magistrate’s credibility determination affected her “ability to fairly and impartially hear this matter and has created a bias toward” Mother.

The Magistrate denied the motion for recusal.

Mother and Father petitioned the Court of Appeals for an accelerated interlocutory appeal.

On Appeal: The Court of Appeals denied the appeal.

Appeals from orders denying motions to recuse are governed by Rule 10B. Under § 2.01, an accelerated interlocutory appeal is only available where a “trial court judge” denies a motion for recusal. Section 1.01 specifies that it applies only to the recusal of “a judge of a court of record.”

While juvenile courts are courts of record, this case was heard by a juvenile court magistrate, rather than by a trial court judge or a judge acting as a court of record.

The recusal of the juvenile court magistrate is governed by § 4 of Rule 10B. Under that section, there is no right to an accelerated interlocutory appeal from a magistrate’s decision denying recusal. It further provides that “rulings of some judicial officers (e.g., a magistrate, referee, or master) can be subject to the approval or review of a judge of a court of record.”

The Court found that the request for an interlocutory appeal was premature:

The appeal procedure for a juvenile court magistrate’s ruling is set forth in Tennessee Code Annotated § 37-1-107(d), which provides that “[a]ny party may, within 10 days after entry of the magistrate’s order, file a request with the court for a de novo hearing by the judge of the juvenile court. The judge shall allow a hearing if a request for hearing is filed.” Thus, under Rule 10B, § 4.04, the magistrate’s decision denying recusal must be reviewed by the juvenile court judge under Tennessee Code Annotated § 37-1-107, not by this Court under Rule 10B, § 2.

When the case has been appealed to the wrong appellate court, Tennessee Code Annotated § 16-4-108(a)(2) provides that it should be “transferred to the court having jurisdiction of the case, direct.” Here, the review must be made by the juvenile court judge rather than the Court of Appeals. Therefore, the matter is transferred to the juvenile court for the juvenile court judge to review the magistrate’s recusal decision.

The Court denied the appeal and transferred the request to the juvenile court judge for further proceedings.

K.O.’s Comment: Not only was the recusal request procedurally flawed, but it is also substantively flawed. It is well-established that adverse rulings by a trial judge (usually) cannot establish bias. To justify recusal, bias must come from an extrajudicial source, i.e., something outside the case or courtroom, and cannot be based upon the judge’s observations of witnesses and evidence from the trial. Judges are expected to have no bias at the beginning of a trial. Still, a judge must develop a bias at some point during the proceeding because the decision at the end is based upon the judge’s impressions, favorable or unfavorable, formed during the trial.

In re Haven-Lee S. (Tennessee Court of Appeals, Western Section, February 16, 2022).

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