Ricardo R. v. Lori C. ( 2018 )


Menu:
  •                       NOTICE: NOT FOR OFFICIAL PUBLICATION.
    UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
    AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
    IN THE
    ARIZONA COURT OF APPEALS
    DIVISION ONE
    RICARDO R., Appellant,
    v.
    LORI C., D.R., M.R., Appellees.
    No. 1 CA-JV 18-0034
    FILED 10-11-2018
    Appeal from the Superior Court in Maricopa County
    No. JS17374
    The Honorable Glenn A. Allen, Judge Pro Tempore
    AFFIRMED
    COUNSEL
    Ricardo Ramirez, Florence
    Appellant
    Walston Law Group, Mesa
    By J. Robert Walston
    Counsel for Appellee Lori C.
    MEMORANDUM DECISION
    Judge Peter B. Swann delivered the decision of the court, in which Presiding
    Judge Kenton D. Jones and Judge David D. Weinzweig joined.
    RICARDO R. v. LORI C., et al.
    Decision of the Court
    S W A N N, Judge:
    ¶1           Ricardo R. (“Father”) appeals the juvenile court’s order
    severing his parental rights based on the nature and length of his felony
    sentences under A.R.S. § 8-533(B)(4). We affirm for the reasons set forth
    below.
    FACTS AND PROCEDURAL HISTORY
    ¶2         Father and Lori C. (“Mother”) are the parents of five children,
    two of whom, D.R. and M.R., were minors at the time of the severance
    order.
    ¶3           Father was convicted in 2011 of multiple counts of child
    molestation and sexual conduct with a minor related to his repeated abuse
    of daughter J.M. when she was between 12 and 16 years old. The court
    sentenced him to life in prison. We affirmed his convictions on direct
    appeal in 2012.
    ¶4             Meanwhile, Mother divorced Father and obtained sole
    physical custody and legal decision-making. The court granted Father
    supervised parenting time conditioned on the outcome of the children’s
    mental-health evaluations and permission from Father’s parole officer, and
    granted Father telephone contact with the children conditioned on the
    terms of his incarceration. The children never completed a mental-health
    evaluation, and Mother decided not to place the children on Father’s
    approved contact list at the Arizona Department of Corrections (“ADOC”).
    ADOC enforced Mother’s choice and prohibited Father from having
    telephonic contact with the children. Consistent with A.R.S. § 13-4411.01,
    ADOC also did not allow Father to write letters to the children. Despite
    those restrictions, Father exchanged some letters with D.R. and M.R. and
    spoke with them via telephone on a few occasions.
    ¶5           Father never moved to modify the legal decision-making and
    parenting time orders, but in 2016 sought to enforce his parenting time and
    requested a contempt finding against Mother. The court denied both of
    Father’s requests.
    ¶6            Mother thereafter successfully petitioned the juvenile court to
    sever Father’s parental rights. Father appeals the severance order.
    2
    RICARDO R. v. LORI C., et al.
    Decision of the Court
    DISCUSSION
    ¶7            Father asserts six errors. He contends: (1) the commissioner
    presiding over the severance hearing did not have authority to hear the
    case; (2) the statute governing severance, A.R.S. § 8-533(B), is
    unconstitutional; (3) Father’s wrists were improperly restrained during the
    hearing; (4) the court erred by not pursuing Father’s claims that Mother
    committed a crime; (5) insufficient evidence supports the severance order;
    and (6) the commissioner was biased. We reject each of Father’s
    contentions.
    I.     COMMISSIONER ALLEN HAD                  AUTHORITY         TO    HEAR
    FATHER’S SEVERANCE MATTER.
    ¶8            We first address Father’s contention that Commissioner Allen
    did not have authority to preside over the severance hearing. The argument
    lacks merit. We take judicial notice of orders appointing Commissioner
    Allen to serve as a judge pro tempore to the Arizona Superior Court in
    Maricopa County between July 1, 2016 and June 30, 2018. See In re Sabino
    R., 
    198 Ariz. 424
    , 425, ¶ 4 (App. 2000). Under the orders published by the
    Supreme Court, Commissioner Allen had authority under those
    appointments to hear and decide the severance matter. See A.R.S. § 12-144.
    II.    FATHER FAILS TO SHOW                HOW      A.R.S.   §   8-533(B)   IS
    UNCONSTITUTIONAL.
    ¶9            We next address Father’s contention that A.R.S. § 8-533(B) is
    unconstitutional because applying a “preponderance of the evidence”
    standard to a best-interests determination violates his due process rights.
    ¶10           Father cites Santosky v. Kramer, 
    455 U.S. 745
     (1982), to support
    his argument. In Santosky, the United States Supreme Court held that
    before terminating parental rights, states must prove “parental unfitness”
    by clear and convincing evidence. 
    Id. at 760, 769
    . The Arizona Supreme
    Court has interpreted Santosky’s holding as applying only to the statutory
    ground for termination. Kent K. v. Bobby M., 
    210 Ariz. 279
    , 285–86, ¶¶ 28,
    30–32 (2005). Kent K. expressly holds that the superior court need only
    determine the child’s best interests by a preponderance of the evidence. 
    210 Ariz. at 288, ¶ 42
    . In this manner, the supreme court has authoritatively
    harmonized Santosky with Arizona law. We have neither the power nor a
    reasoned basis to depart from the supreme court’s holding.
    3
    RICARDO R. v. LORI C., et al.
    Decision of the Court
    III.   FATHER FAILS TO SHOW HOW THE ALLEGED FAILURE TO
    REMOVE HIS WRIST RESTRAINTS CONSTITUTED REVERSIBLE
    ERROR.
    ¶11          We next address Father’s contention that the court erred by
    deferring to officers who did not remove his wrist restraints for the
    severance hearing.
    ¶12           The transcript of the hearing reflects only the following
    exchange:
    [Father’s counsel]: Judge, . . . [m]y client’s asking that the
    handcuffs be removed so that he can write notes to assist me
    during the course of this proceeding.
    The Court: And I -- all right. So go ahead.
    It is unclear whether Father’s characterization of subsequent events is
    accurate. But even assuming that Father is correct that the restraints were
    not actually removed, he fails to show how those optics constituted error.
    ¶13             In criminal cases, “generally, a defendant has the right to
    appear before the jury free of shackles or other restraints.” Wilson v.
    McCarthy, 
    770 F.2d 1482
    , 1484 (9th Cir. 1985) (emphasis added); see also State
    v. Benson, 
    232 Ariz. 452
    , 461, ¶ 29 (2013) (“Although a defendant generally
    has the right to be free from restrains in the courtroom, the court may order
    their use if, in the court’s discretion, the restraints are needed for courtroom
    security and safety.”). That rule evolved because of the public nature of
    criminal proceedings and the prejudicial effect restraints might have on a
    jury. See Holbrook v. Flynn, 
    475 U.S. 560
    , 568 (1986) (“Not only is it possible
    that the sight of shackles and gags might have a significant effect on the
    jury’s feelings about the defendant, but the use of this technique is itself
    something of an affront to the very dignity and decorum of judicial
    proceedings that the judge is seeking to uphold.” (citation omitted)). But
    even in criminal trials defendants may be restrained without error if the
    restraints are not visible to the jury. See State v. McMurtrey, 
    136 Ariz. 93
    , 98
    (1983) (“An appellate court will not find error on the ground that the
    defendant was shackled unless it is shown that the jury saw the shackles.”).
    ¶14           Father presents no authority or argument regarding the
    above-described rule’s applicability in severance proceedings, in which a
    judge, not a jury, functions as the fact-finder. Without a jury, prejudice
    cannot be presumed. See Cardoso v. Soldo, 
    230 Ariz. 614
    , 619–20, ¶ 19 (App.
    2012) (“A trial judge is presumed to be free of bias and prejudice . . . .”);
    4
    RICARDO R. v. LORI C., et al.
    Decision of the Court
    Fuentes v. Fuentes, 
    209 Ariz. 51
    , 58 (App. 2004) (“[T]rial judges are presumed
    to know the law and to apply it in making their decisions.” (citation
    omitted)). The juvenile court had discretion to control the courtroom and
    the proceedings, and Father has not adequately demonstrated how his
    claimed inability to take notes resulted in a miscarriage of justice or an
    unfair trial. See Christy A. v. Ariz. Dep’t of Econ. Sec., 
    217 Ariz. 299
    , 308, ¶ 31
    (App. 2007).
    IV.    FATHER FAILS TO SHOW HOW HE IS ENTITLED TO RELIEF
    FOR THE COURT’S INACTION AGAINST MOTHER.
    ¶15           We next address Father’s contention that the court was
    obligated to refer Mother for criminal prosecution for extortion because she
    admitted under oath to telling the children’s paternal relatives that they
    would not be allowed to see the children unless Father agreed to a certain
    distribution of marital assets in the divorce case. Father also cites his own
    testimony that Mother had offered to permit him and the children’s
    paternal relatives to visit the children if he gave her money and dropped all
    appeals in the criminal case.
    ¶16            Father fails to show how the foregoing is germane to our
    review of alleged error committed within the course of the severance
    hearing. Parenting time, grandparent visitation, and the distribution of
    marital assets are not questions properly at issue in juvenile severance
    cases. See A.R.S. §§ 25-403 (governing allocation of parenting time in
    family-court proceedings), -409(C)(3) (governing grandparent visitation in
    family-court proceedings), -318(A) (governing disposition of property in
    dissolution proceedings). Further, Father’s reliance on Ariz. R. Crim. P. 2.3
    and 2.4 is misplaced. Those rules address only the procedure relating to the
    initiation of a formal criminal complaint; they do not establish in the court
    a duty to refer alleged crimes. See Ariz. R. Crim. P. 2.3, 2.4. Moreover, the
    court’s inaction is simply not appealable as a final order from a juvenile
    severance matter. See In re Pima Cty. Juv. Action No. S-933, 
    135 Ariz. 278
    , 280
    (1982) (“The right to appeal exists only from a final order.”).
    V.     REASONABLE EVIDENCE SUPPORTS THE SEVERANCE ORDER.
    ¶17         We next address Father’s contention that insufficient
    evidence supports the severance order.
    ¶18          To sever parental rights, the juvenile court must find by clear
    and convincing evidence at least one statutory ground articulated in A.R.S.
    § 8–533(B) and must find by a preponderance of the evidence that
    termination is in the child’s best interests. Kent K., 
    210 Ariz. at 288, ¶ 41
    ;
    5
    RICARDO R. v. LORI C., et al.
    Decision of the Court
    Michael J. v. Ariz. Dep’t of Econ. Sec., 
    196 Ariz. 246
    , 249, ¶ 12 (2000). Because
    the juvenile court “is in the best position to weigh the evidence, observe the
    parties, judge the credibility of witnesses, and resolve disputed facts,” we
    will affirm a severance order so long as it is supported by reasonable
    evidence. Jordan C. v. Ariz. Dep’t of Econ. Sec., 
    223 Ariz. 86
    , 93, ¶ 18 (App.
    2009).
    A.     Reasonable Evidence Supports Severance Under A.R.S.
    § 8-533(B)(4).
    ¶19            The court may terminate parental rights under A.R.S.
    § 8-533(B)(4) if “the parent is deprived of civil liberties due to the conviction
    of a felony . . . if [his] sentence . . . is of such length that the child will be
    deprived of a normal home for a period of years.”1 In determining whether
    the evidence meets this ground, the court must consider all relevant factors,
    including:
    (1) the length and strength of any parent-child relationship
    existing when incarceration began, (2) the degree to which the
    parent-child relationship can be continued and nurtured
    during the incarceration, (3) the age of the child and the
    relationship between the child’s age and the likelihood that
    incarceration will deprive the child of a normal home, (4) the
    length of the sentence, (5) the availability of another parent to
    provide a normal home life, and (6) the effect of the
    deprivation of a parental presence on the child at issue.
    Michael J., 
    196 Ariz. at
    251–52, ¶ 29. “[T]here is no threshold level under
    each individual factor . . . that either compels, or forbids, severance. It is an
    individualized, fact-specific inquiry.” Christy C. v. Ariz. Dep’t of Econ. Sec.,
    
    214 Ariz. 445
    , 450, ¶ 15 (App. 2007). The juvenile court made findings with
    1       Section 8-533(B)(4) also provides that the court may terminate
    parental rights if “the parent is deprived of civil liberties due to the
    conviction of a felony if the felony of which that parent was convicted is of
    such nature as to prove the unfitness of that parent to have future custody
    and control of the child.” Because we conclude that severance was
    warranted under the statute’s length-of-sentence provision, we need not
    address the juvenile court’s holding that severance was warranted based on
    the nature of Father’s convictions as well. See Jesus M. v. Ariz. Dep’t of Econ.
    Sec., 
    203 Ariz. 278
    , 280, ¶ 3 (“If clear and convincing evidence supports any
    one of the statutory grounds on which the juvenile court ordered severance,
    we need not address claims pertaining to the other grounds.”).
    6
    RICARDO R. v. LORI C., et al.
    Decision of the Court
    respect to each of the factors set forth above. Reasonable evidence supports
    the findings, and we discern no abuse of discretion in the weight the court
    assigned them.
    ¶20            First, the court found that, though “[t]he family appeared to
    have a solid relationship prior to the felony charges filed against the father,”
    because Father abused his oldest daughter “it’s not clear exactly how stable
    the home was in reality to the picture painted at trial.”
    ¶21            The court next found that the parent-child relationship could
    not be continued or nurtured during Father’s incarceration, and that they
    had already been deprived of a normal home life in view of the fact that
    Father had been incarcerated for much of their almost-concluded
    childhood. Father had been incarcerated with almost no involvement in the
    children’s lives for approximately eight years. And though Father contends
    that Mother prevented contact, he acknowledged at the hearing that his
    sentences prevented him from ever again being fully involved in the
    children’s lives. Further, by the time of the hearing, the children had
    refused contact with him and desired severance. Father asserts that “the
    children can and do change their minds” about having contact with him.
    He points to an interview in which M.R. stated that she wanted visits with
    him. That interview occurred in the family court matter in 2016, one and a
    half years before the severance hearing. The juvenile court was in the best
    position to reconcile any conflicts in the evidence.
    ¶22           Regarding the length of Father’s sentences, the court found
    that “[h]e will never be released from prison.” Father was convicted of
    multiple felonies and ultimately sentenced to life in prison.2 Even so, Father
    contends that the court’s finding is incorrect because his petition for review
    under Ariz. R. Crim. P. 32 was pending at the time of the severance
    hearing.3
    ¶23          The court finally found that Mother was providing the
    children with a normal home life, and that they were thriving under her
    2     Father contends that, though the court listed one of Father’s
    convictions as failing to register as a sex offender, he was never charged
    with that offense. Nonetheless, Father’s multiple convictions for child
    molestation and sexual conduct with a minor resulted in a life sentence and
    support the court’s finding.
    3     This court ultimately denied Father relief under his petition, and the
    supreme court denied his petition for review.
    7
    RICARDO R. v. LORI C., et al.
    Decision of the Court
    care despite Father’s absence. The evidence established that the children
    attended school and participated in church activities, and that Mother had
    provided them counseling to process, among other things, the trauma
    Father caused the family. Mother provided for the children’s physical,
    medical, emotional, financial, educational, and social needs, and Father was
    not financially supporting them (except through garnishment of his
    annuity, payments from which Mother had ceased receiving by the time of
    the severance hearing).
    ¶24          On this record, reasonable evidence supports the court’s
    conclusion that severance was warranted under A.R.S. § 8-533(B)(4).
    B.       Reasonable Evidence Supports Severance Based on the
    Children’s Best Interests.
    ¶25           In assessing whether severance would be in a child’s best
    interests, the court must determine how the child would benefit from
    severance or be harmed by the continuation of the parental relationship.
    Alma S. v. Dep’t of Child Safety, 
    799 Ariz. Adv. Rep. 27
    , 30, ¶ 13 (Sept. 14,
    2018). Moreover, we presume in the best-interests inquiry that the interests
    of the parent and child diverge because the court has already found the
    existence of one of the statutory grounds for termination by clear and
    convincing evidence. Id. at ¶ 12.
    ¶26           Here, the court found that continuing the parent-child
    relationship would be detrimental to the children for many reasons:
    •   “The children are aware that the father is serving a life
    sentence for molesting their older sibling over a
    number of years.”
    •   “[F]ather’s egregious conduct against the children’s
    sibling has traumatized the family and the children.
    . . . [F]ather’s conduct has devastated this family. The
    children have been to counseling to help them deal
    with the trauma that [F]ather has inflicted upon them.”
    •   Though “a parent that is incarcerated can still provide
    emotional support for their children,” the children
    have expressed that “[a]ny contact with [F]ather . . . [is
    something] they do not want” and that “they want the
    termination to occur,” and Father “conceded that he
    has had no meaningful contact with the children since
    he was arrested in 2008.”
    8
    RICARDO R. v. LORI C., et al.
    Decision of the Court
    •   “[F]ather has shown by his conduct he’s willing to
    victimize his children over a prolonged period [of]
    time . . . .”
    Each of the findings is supported by reasonable evidence in the record, and
    the findings are more than sufficient to support the court’s determination
    that continuation of the parental relationship would jeopardize the
    children’s safety and emotional well-being.
    VI.    FATHER FAILS TO SHOW THAT THE COURT WAS BIASED.
    ¶27            Father finally contends that the juvenile court “showed bias
    in favor of” Mother. He contends that bias can be gleaned from the court’s
    failure to refer Mother for prosecution and from its unsupported factual
    findings. Because we have deemed each of those arguments meritless, see
    supra Sections IV–V, we conclude that Father has failed to show any bias.
    See Cardoso, 230 Ariz. at 619–20, ¶ 19 (“A trial judge is presumed to be free
    of bias and prejudice and to overcome this presumption, a party must show
    by a preponderance of the evidence that the trial judge was, in fact,
    biased.”); Emmett McLoughlin Realty, Inc. v. Pima Cty., 
    212 Ariz. 351
    , 357,
    ¶ 24 (App. 2006) (“[M]ere speculation about bias is not sufficient.”).
    CONCLUSION
    ¶28           For the foregoing reasons, we affirm.
    ¶29           Mother requests attorney’s fees and costs on appeal “due to
    Father’s unreasonable positions taken throughout the course of this
    litigation” and his “failure to follow the rules for filing an appeal.” We deny
    Mother’s request. She cites only to ARCAP 21, which is a procedural rule
    that creates no substantive basis for a fee award. See ARCAP 21(a)(2).
    Moreover, ARCAP 21 is not among those rules expressly incorporated by
    Ariz. R.P. Juv. Ct. 103(G).
    AMY M. WOOD • Clerk of the Court
    FILED: AA
    9