                      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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.




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                       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.




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                       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 . . . .”);


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                        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.”


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                       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




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