The State Commission on Judicial Conduct has disciplined a former Corpus Christi district judge for ordering a father to relinquish custody of his son during the Christmas holidays three years ago because she believed she was “being played with.”
The background to the public warning issued against Marisela Saldana, former judge of the 148th District Court in Nueces County, which was released by the commission on Dec. 19, is as follows.
On Nov. 8, 2010 a father filed a petition to modify the parent-child relationship against the child’s mother before Saldana after his son made an outcry alleging that the mother’s boyfriend spanked the child with a belt. On Nov. 10, 2010, Saldana lost her general election and was scheduled to leave office on Dec. 31, 2010.
On Nov. 18, 2010 Saldana ordered the parties to attend counseling and refrain from corporal punishment and set the matter for a final hearing on Dec. 20, 2010. The father did not attend the Dec. 20, 2010 final hearing and the father’s lawyer (neither was named in the document) also did not appear but filed a motion for continuance on the father’s behalf, according to the public warning.
Before the motion for continuance could be heard, the father’s lawyer suffered cardiac distress and was excused by the judge to seek medical attention. In the absence of the father and his attorney, Saldana allowed the mother’s attorney to address the court regarding the merits of the still-pending continuance motion during a hearing. The mother’s attorney (who was also not named in the document) expressed his opinion that the father’s absence was merely a “delay tactic” to have the matter heard after Dec. 31, 2010, which was Saldana’s last day in office, according to the public warning.
Based on statements made during the proceeding including: “I know I am being played games with” and “we may run out of time,” Saldana appeared to believe that the father was deliberately absent from the proceedings as a delay tactic in an effort to ensure that Saldana’s successor in office would handle the case, according to the public warning.
On her own motion, Saldana issued an order on Dec. 20, 2010 requiring the father to relinquish his child to an investigator for the Department of Family and Protective Services. That same day, Saldana also issued a writ of attachment for the child based on a motion filed by the mother’s attorney asserting that the child was being “illegally restrained” by the father.
“At the time Judge Saldana issued the writ of attachment, there was no evidence that the child was being illegally restrained,” according to the public warning. “In fact, [the father] was entitled to possession of the child through the Christmas Holiday pursuant to the existing custody and visitation order filed in the case.”
The next day, the father appeared in Saldana’s court over his objections because his attorney was in the hospital and could not be present. Saldana ordered the father to turn his child to the mother, according to the public warning.
The commission noted in the public warning that during testimony concerning the complaint filed against her that “Judge Saldana failed to be candid and forthright when responding to questions intended to elicit facts and evidence, and provided inconsistent and misleading information that often contradicted information contained in court records, all of which hampered the Commission’s efforts to investigate and resolve the matter.”
The commission concluded that Saldana violated the Texas Code of Judicial Conduct for ordering the father to turn over his child without notice, a hearing, or pleadings on file with the court. The commission also noted that while they recognized a general rule of judicial independence requires that judges ought not be subject to discipline for discretionary decisions, Saldana’s actions “were not done in a good faith effort to protect the best interests of the child” but rather to “punish” the father.
“Because she believed that she was being ‘played with,’ Judge Saldana forced [the father] to relinquish custody of his child over the Christmas holidays without notice or a hearing, and/or without credible evidence that the child was in any harm or danger,” the public warning stated.
Saldana and her attorney Michael Krueger of Kingsville both did not return calls for comment.
Seana Willing, executive director of the commission, declines comment about the public warning.