IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION TWO

LISA K., ) ) Appellant, ) 2 CA

- JV 2012

- 0007

) DEPARTMENT B v. ) ) O P I N I O N ARIZONA DEPARTMENT OF ECONOMIC ) SECURITY and JULIAN N., ) ) Appellee s . )

)

APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

Cause No. J192710 Honorable Gus Aragón , Judge
AFFIRMED

Sanders & Sanders, P.C. By Ken Sanders Tucson Attorneys for Appellant Thomas C. Horne, Arizona Attorney General By Claudia Acosta Collings Tucson Attorneys for Appellee Arizona Department of Economic Security V Á S Q U E Z, Presiding Judge. 

### FILED BY CLERK

COURT OF APPEALS DIVISION TWO 

### JUN 26 20122

¶1 Lisa K. appeals from the juvenile court’s order terminating her parental rights to her son, Julian N., born in July 2009 , based on mental illness or chronic substance abuse and the length of time in court

- ordered care . 1 See A.R.S. § 8

- 533(B)(3) , (B) (8)(c)

. T he sole claim Lisa raises on appeal is that A.R.S. § 8

- 862 is unconstitutional
and resulted in a violation of her due process rights, requiring us to vacate the termination order. 2 For the reasons set forth below, we affirm.

1 Julian’s father, whose rights also were terminated, is not a party to this appeal.

2 The relevant portions of § 8

- 862 , the statute that governs permanency hearings, provide:
B. At the permanency hearing, the court shall

determine:
1. Whether termination of parental rights, adoption, permanent guardianship . . . or some other permanent legal status is the most appropria te plan for the child and shall order the plan to be accomplished within a specified period of time.

. . . . D. If the court determines that the termination of parental rights is clearly in the best interests of the child, the court shall:
1. Order the department . . . to file within ten days after the permanency hearing a motion alleging one or more of the grounds prescribed in § 8

- 533 for termination of parental rights. The party who files the motion has the burden of presenting evidence at the termination hearing to prove the allegations in the motion.
2. Set a date for an initial hearing on the motion for termination of parental rights within thirty days after the permanency hearing. If the termination is contested at the3

¶2 A juvenile court may terminate a parent’s rights if it finds by clear and convincing evidence that any statutory ground for severance exists and if it finds by a preponderance of the evidence that severance is in the chi ld’s best interests. A.R.S. §§ 8

- 533( B ), 8

- 537(B) ; Kent K. v. Bobby M. , 210 Ariz. 279, ¶ 41, 110 P.3d 1013, 1022 (2005)

. “On review, . . . we will accept the juvenile court’s findings of fact unless no reasonable evidence supports those findings, and we will affirm a severance order unless it is clearly erroneous.” Jesus M. v. Ariz. Dep’t of Econ. Sec. , 203 Ariz. 278, ¶ 4, 53 P.3d 203, 205 (App. 2002)

. And, we view the evidence in the light most favorable to upholding the court’s ruling. See Michael J. v. Ariz. Dep’t of Econ. Sec. , 196 Ariz. 246, ¶ 20, 995 P.2d 682, 686 (2000)

. Background ¶3 The relevant facts are essentially undisputed and, together with the procedural history of this case, are as follows. Based on reports of domestic violence between Li sa and Julian’s father and a subsequent investigation , the Arizona Department of Economic Security ( ADES ) removed Julian from Lisa’s care in November 2009, when
he was four months old. After Lisa admitted the allegations in the dependency petition, the juvenile court adjudicated Jul ian dependent in February 2010 and a pproved a case plan goal of family reunification

. The court held a combined permanency hearing and dependency review hearing in November 2010 , at which it gave Lisa three more months
to com ply with the case plan and achieve reunification with Julian. A f t er the continued initial hearing, the court shall set a date for the trial on termination of parental rights within ninety days after the permanency hearing.4

permanency hearing i n February 2011, the court found Lisa had been “substantially compliant ” with the case

- plan goals , but she nevertheless had “failed to benefit from the

c ase plan services provided thus far to the extent that the Court would have hoped and expected” and remained either unable or unwilling to adequately parent Julian. Although ADES recommended changing the case

- plan goal to severance and adoption , t he court also found appropriate a concurrent goal of family reunification

. ¶4 In April 2011, Lisa filed a motion pursuant to Rule 58 (D) , Ariz. R. P. Juv. Ct., in which she opposed the changed case - plan goal and requested an evidentiary hearing on that issue. At a combined hearing on the motion and dependency review on May 3 , ADES did not oppose Lisa’s motion , and the juvenile court granted it, setting an evidentiary hearing commencing on May 23. In July, f ollowing three days of hearings,
t he court determined it cl early was in Julian’s best interest s to change the case

- plan goal to severance and adoption

. In accordance with § 8

- 862(D)(1) , 3 t he court directed ADES to file a motion to terminate Lisa’s parental rights to Julian within ten days. In its motion to termi nate , filed on July 28, 2011, ADES alleged as grounds for termination mental illness or substance abuse and length of time in court

- ordered out

- of

- home care. See § 8

- 533(B) ( 3 ), (B)( 8 ) (c) . ADES also alleged that terminating Lisa’s parental rights was in Julian’s best interests. ¶5 In August 2011, Lisa filed a special action petition in which she asked this
court to find § 8

- 862 unconstitutional insofar as it permits the same judge who finds the

3 Section 8

- 862(D)(1) states that if the juvenile court determines termination “is clearly in the best interests of the child,” it s hall order ADES to file a motion to terminate.5

case - plan goal of severance and adoption in a child’s best inter est s and directs ADES to file a motion to terminate a parent’s rights , to then preside over the termination hearing

. W e declined to accept special action jurisdiction on September 15, 2011

. Lisa subsequently filed a “Motion to Declare A.R.S. § 8

- 862 Unconstitutional” in the juvenile

court , which the court denied , finding the statute constitutional “as applied to the mother
in this case .” Lisa then filed a second special action petition in this court , challenging the constitutionality of § 8

- 862

. W e declined to accept jurisdiction

. ¶6 On November 1, 2011, Lisa filed a notice in the juvenile court , stating she had filed a civil rights complaint in the United States District Court for the District of Arizona. On the first day of the contested severance hearing , Judge Gus Arag ó n , the judge assigned to this case, informed the parties that although a federal action had been filed in the matter naming him personally as a defendant , he saw no reason to recuse himself

. Judge Arag ó n then a sked if “anybody need[ed] to make further record on that.” Lisa’s attorney responded that he had filed the federal lawsuit , which was “ n o different than the special actions that [had] been filed previously [in this matter] ” and added that he did not “see any reason to ask [the] Court to recuse itself from the action.” 4 Judge Arag ó n therefore proceeded with t he severance hearing . After four days of hearing s between November 2011 and January 2012, the judge granted ADES’s motion and
terminated Lisa’s parental rights to Julian.

4 Although Lisa did not object to Judge Aragón’s presiding over the case, or file a motion for change of judge, see Rule 2, Ariz. R. P. Juv. Ct., we nonetheless conclude she had preserved the issue before us on appeal by filing special actions in this court and a motion challenging the statute’s constitutionality in the juvenile court.6 Standing ¶7 On appeal, Lisa argues § 8

- 862 is facially unconstitutional in that it permits the same judge who orders ADES to file the motion to terminate a parent’s rights to also preside over the severance hearing. A lthough ADES a rgued in its answering brief that
Lisa has no standing to challenge the constitutionality of § 8

- 862 , it conceded the issue at oral argument

. We likewise conclude Lisa has standing. See Church v. Rawson Drug & Sundry Co ., 173 Ariz. 342, 349, 842 P.2d 135 5, 1362 (App. 1992) (initial question in constitutional challenge to statute whether party has standing to assert claim); see also
State v. Herrera , 121 Ariz. 12, 15, 588 P.2d 305, 308 (1978) (“In order to possess standing to assert a constitutional challe nge, an individual must himself have suffered some threatened or actual injury

. . . . ”) (citation omitted). However, t he challenge to the facial constitutionality of a statute requires only “an inquiry into whether the law itself is unconstitutional, [and] not into whether the application of the law violates a particular individual’s rights. ” Hernandez v. Lynch , 216 Ariz . 469, ¶ 8, 167 P.3d 1264, 1267 (App. 2007)

. Because Lisa has argue d that her due process rights to an impartial tribunal were violated by operation of § 8

- 862 , and that the statute has no valid application for those similarly situated , she has standing t o assert this claim without proof of an actual bias on the part of the particular juvenile court judge

. Is § 8
- 862 Facially Unconstitutional? ¶8 Lisa contends § 8

- 862 is facially unconstitutional because it permits the same judge who directed ADES to file the motion to terminate a parent’s rights to preside over the hearing on that motion and decide whether to grant it. She argues the statute7

thereby violates a parent’s right to have the case heard and decided by an impartial fact

find er, resulting in a viola tion of the parent’s due process rights. Lisa asserts there are no circumstances in which application of § 8

- 862 (D) as written would be valid. Arizona generally follows the standard set forth in United States v. Salerno , 481 U.S. 739, 745 (1987) , which provides that to successfully challenge the facial validity of a statute, the challenging party must demonstrate no circumstances exist u nder which the challenged statute would be found valid. See Hernandez , 216 Ariz. 469, ¶ 8, 167 P.3d at 1267 . “ If we find that there is no set of circumstances under which the statute can be found constitutional, then it must be found unconstitutional.” State v. Seyrafi , 201 Ariz. 147, n.4, 32 P.3d 430, 432 n.4 (App. 2001)

. ¶9 “We review alleged constitutional violat ions de novo, . . . and when possible, construe statutes to uphold their constitutionality.” State v. Hargrave , 225 Ariz. 1, ¶ 42, 234 P.3d 569, 581 (2010) (citations omitted). “We presume a statute to be
constitutional and will not declare an act of the legislature unconstitutional unless convinced beyond a reasonable doubt that it conflicts with the federal or state constitutions.” Graville v. Dodge , 195 Ariz. 119, ¶ 17, 985 P.2d 604, 608 (App. 1999)

. The burden of establishing that a statute is uncon stitutional is on the person challenging the statute. In re Maricopa Cnty. Juv. Action No. JT9065297 , 181 Ariz. 69, 81, 887 P.2d 599, 611 (App. 1994)

. We review issues of statutory interpretation de novo

. S ee State v.
Barnett , 209 Ariz. 352, ¶ 7, 101 P.3d 646, 648 (App. 2004)

. “If a statute’s language is clear and unambiguous, courts must give effect to that language and need not employ the rules of statutory construction.” Seyrafi , 201 Ariz. 147, ¶ 11, 32 P.3d at 433

.8

¶10 “The touchstone of due process under both the Arizona and federal constitutions is fundamental fairness,” State v. Melendez , 172 Ariz. 68, 71, 834 P.2d 154, 157 (1992) , whereas “[p]rocedural due process guarantees that permissible governmental
interference is fairly achieved.” Simpson v. Owens , 207 Ariz. 261, ¶ 17, 85 P .3d 478, 484 (App. 2004)

. And, “a parent indeed does have a fundamental interest in the care, custody and control of her child, a right that is protected by the Due Process Clause of the Un ited States Constitution

. ” Mara M. v. Ariz. Dep’t of Econ. Sec. , 201 Ariz. 503, ¶ 24, 38 P.3d 41, 45 (App. 2002) , citing Santosky v. Kramer , 455 U.S. 745, 753 (1982) (citation omitted). “[W]hen the State act s to terminate this right, it must provide appr opriate fair procedures.” Mara M. , 201 Ariz. 503, ¶ 24, 38 P.3d at 45

. In addition, all litigants are entitled to a decision rendered by an impa rtial tribunal

. See Pavlik v. Chinle Unified Sch.
Dist. No. 24 , 195 Ariz. 148, ¶ 12 , 985 P.2d 633, 637 (App. 1999)

. ¶11 Although Lisa asserts a facial challenge to § 8

- 862 , claiming there are no circumstances under which it can be applied constitutionally, she has not cited any facts specific to her case supporting her apparent claim that t he juvenile cour t a cted with the bias she co n tends is inevitable under the statutory scheme. And, in the final paragraphs of her opening brief , she asserts without factual support that she has suffered fundame nta l, “ prejudicial” error

. “The question whether error is fundamental is ‘fact intensive.’” Monica C. v. Ariz. Dep’t of Econ. Sec. , 211 Ariz. 89, ¶ 25, 118 P.3d 37, 42 (App. 2005) , quoting State v. Bible , 175 Ariz. 549, 572, 858 P.2d 1152, 1175 (1993) ; s ee also State v. Moody , 208 Ariz. 424, n.9, 94 P.3d 1119, 1 147 n.9 (2004) (“ ‘ [O]pening briefs must present significant arguments, supported by authority, setting forth an9

appellant’s position on the issues raised. Failure to argue a claim usually constitutes abandonment and waiver of that claim.’”), quoting State v. Carver , 160 Ariz. 167, 175,
771 P.2d 1382, 1390 (1989)

. Moreover, no such bias or prejudice is apparent from the record before us

. Lisa nonetheless asserts that, once the juvenile court ordered ADES to
file a motion for termination pursuant to § 8

- 86 2(D)(1) , “it would be na[ï]ve to believe that the Juvenile Court could or would fairly and impartially determine whether legal grounds existed to support its determination.” Thus, she seems to be suggesting the court presumptively is bias ed in such circum stances. She further asserts that , “[e]ven assuming that the Juvenile Court could be as impartial as due process requires, the appearance of partiality is too great to give the process appropriate legitimacy.” ¶12 T he legislature enacted § 8

- 862 in 1997 to comply with the requirements of
the F ederal Adoption and Safe Families Act , which include an “accelerate [d] process by which parental rights are terminated so that children can be adopted more readily and at an earlier age.” 5 Mara M. , 201 Ariz. 5 03, ¶¶ 16

- 17, 38 P.3d at 43

- 44 ; 1997 Ariz. Sess. Laws, ch. 222, § 52 ; see also Rita J. v. Ariz. Dep’t of Econ. Sec. , 196 Ariz. 512, ¶ 5, 1 P.3d 155, 156

- 57 (App. 2000) ( § 8

- 862 adopted to comply with federal law to enable timely permanency proceedings). As part of that process, the statute requires the juvenile
court to “hold a permanency hearing to determine the future permanent legal status of the

5 We decline to address Lisa’s argument that ADES has taken the position “that parents’ due process rights be subjugated to exped iency . . . [and] implicitly concedes, therefore, that A.R.S. § 8

- 862 is not intended to protect the due process rights of parents.” The record does not support this characterization of ADES’s argument. Nor does the statute suggest timely permanency proceedings and affording parents the full due process to which they are entitled are incompatible goals.10

child” within a specific time period at which the court shall determine “the most appropriate plan for the child.” § 8

- 862 (A), (B)(1)

. ¶13 Although Lisa argues the statute is facially unconstitutional because there are no circumstances under which it can be applied constitutionally, the facts in her case persuade us otherwise. H ere, the juvenile court conducted several permanency hearings and waited until Julian had been out of the family home for almost two years before it changed the case

- plan goal to severance and adoption and ordered ADES to file a motion to terminate. At th at point, the court had done nothing more than determine that termination was in Julian’s best interests, not that termination would occur. ADES, not the court, then was required to decide which grounds to allege in the motion. See § 8

- 862(D)(1)

. And AD ES , not the court, then was required to prove by clear and convincing evidence the grounds it alleged in its motion for terminating Lisa’s rights

. See § § 8

- 537(B) , 8

- 862(D)(1)

. And, only after hearing the evidence presented at a full severance hearing did the court determine ADES had sustained its burden of proving the grounds for severance it had alleged in its motion. Similarly, only after hearing the evidence presented , did the court determine ADES had proved by a preponderance of the evidence that severance was in Julian’s best interests. See Mary Lou C. v. Ariz. Dep’t of Econ.
Sec. , 207 Ariz. 43, ¶ 19, 83 P.3d 43, 50 (A pp. 2004) . Finally, the court wa s required to articulate in writing its decision and “the findings on which the order is based , ” s ee A.R.S. § 8

- 538(A) , which further assured the court’s findings were supported by the evidence presented

.11

¶14 We are not persuaded that the juvenile court generally, or in this case specifically, was incapable of assessing the evidence and applying the appropriate burden s of proof

— both as to the grounds for severance and Julian’s best interests

— at the termination hearing. Lisa argues, “[i]t is not enough to simply fall back on the established presumption that judges preside with honesty and integrity.” See State v.
Warner , 159 Ariz. 46, 52, 764 P.2d 1105, 1111 (1988) (trial court presumed to know and apply rules of evidence and burden of proof) , citing State v. Haad , 127 Ariz. 270, 275, 619 P.2d 1047, 1052 (App. 1980) ; Emmett McLoughlin Realty, Inc. v. Pima Cnty. , 212 Ariz. 351, ¶ 24, 132 P.3d 290, 296 (App. 2006) (judges entitled to presumption of

“ ‘ honesty and integrity’”), quoting Pavlik , 195 Ariz. 148, ¶ 24, 985 P.2d at 639

. However, the entire statutory process, as outlined above, provides adequate procedural protections and safeguards to assure that a parent is not denied the impartial tribunal to which she is entitled, and that ADES’s burden of proof is not rendered “meaningless,” as
Lisa assert s . ¶15 Nor is Arizona the only state that requires or per mits the juvenile court to order that a motion to terminate be filed. 6 And c ourts addressing this procedure have

6 Like Arizona, Washington and Iowa require the court to order the department to file a motion to terminate parental rights under certain circumstances, see Wash. Rev. Code Ann. § 13.34.145(3) (at permanency planning hearing court “shall order the department . . . to file a petition seeking termination of parental rights if . . . .”); Iowa Code Ann. § 232.58(3)(c) (after permanency hearing, court shall “[d]irect the county attorney . . . to institute proceedings to terminate the parent

- child relationship”). In addition, at least three other states, Arkansas, Montana, and Missouri, permit the court to order the department to effectuate a permanency plan of adoption. See Ark. Code Ann. § 9

- 27

- 338(f) (after court determines ado ption appropriate, “department shall file the petition to terminate parental rights”); Mont. Code Ann. § 41

- 3

- 445(6)(c) , 7, 8(c) (“court12

upheld its constitutionality , whether in the form of a n “order,” “directive,” “recommendation,” or pursuant to a court’s inherent authority

. See, e.g. , In re D.A. , 189 P.3d 631, ¶

¶ 15, 34

- 37 (Mont. 2008) (by ordering Department of Public Health and Human Services to “take steps . . . to permanently place the children , ” and later presiding over termination hearing, court did not violate Montana statute or parents’ due process right to fair hearing); In re K.C. , 660 N.W.2d 29, 35

- 36 (Iowa 2003) (statute authorizing juvenile court to order county attorney to initiate termination proceedings not unconstitutional), citin g In re J.R.T. , 427 So. 2d 251 (Fla. Dist. Ct. App. 1983) , In re
D.S. , 198 Ill. 2d 309 (2001) , In re D.G.C. , 690 So. 2d 237 (La. 1997) , In re G.S. , 731 S.W.2d 525 (Mo. Ct. App. 1987)

. S ee also Carter v. Knox Cnty

. Office of Family & Children , 761 N.E.2d 431, 436 (Ind. Ct. App. 2001) ( judge’s approval of permanency plan recommending termination did not demonstrate judge, who also presided over termination hearing, had failed to retain his “impartiality and objectivity”); In re LaRue , 440 S.E.2d 301, 303 (N.C. Ct. App. 1994) ( recusal not required on grounds of personal bias or prejudice after court recommend s department of social services pursue
t ermination of parental rights). ¶16 Importantly, a juvenile court’s orders entered after a permanency hearing are not final and appealable, specifically because they “contemplate further proceedings that will determine the ultimate outcome of the case,” which remains uncertain until the

may enter any other order that it determines to be in the best interests of the child,” including an order directing de partment to take required steps to effectuate adoption); Mo. Rev. Stat. § 211.447(1) (juvenile judge “may order the juvenile officer to . . . file[] a petition” to terminate parental rights).13

proceedings have concluded. Rita J. , 196 Ariz. 512, ¶ 8, 1 P.3d at 158 . And, as § 8

- 862 contemplates, the severance hearing is such a “further proceeding .” A lthough § 8

- 862 does not expressly require that the same judge preside over the dependency and termination proceeding, i f we were to prohibit the same judge from conducting all proceedings related to a single family, as Lisa seems to suggest , the inevitable delays resulting from the transition from one judge to another would “undermine the primary purpose of . . . [§] 8

- 862: expediting the process of finding permanent placement for children.” Rita J. , 196 Ariz. 512, ¶ 10, 1 P.3d at 158 ; s ee , e.g. , In re S.M.H. , 160 S.W.3 d 355, 359, 361 , 363 (Mo. 2005) (request to change judge untimely and not in spirit of Missouri ’s “one

- family/one

- judge” unified family court system even though same judge who ordered department to file petition to terminate also conducted termination hearing ); see also , e.g. , In re M.L. , 965 P.2d 551, 556

- 57 (Utah Ct. App. 1998) (because statutory

sc heme allows same judge to preside over all juvenile protection proceedings, allegation of judicial bias must be based on more than concern same judge presided over p rior proceedings with family). ¶17 We find instructive the reasoning of the Superior Court of P ennsylvania in In re Quick , 559 A.2d 42, 46

- 47 (Pa. Super. Ct. 1989) : 7

We fail to see how being party to a dispositio nal hearing in which removal fro m the parents’ custody was required by clear necessity would prejudice the parent some y e ars later,

7 The model set forth in Quick mirrors the “one

- family, one

- judge ” standard established in the Pima County Model Court Project to prevent cases involving children from moving from judge to judge. See Stephanie Innes, Pima Judge Lands National Honor for Juvenile Court Work , Tucson Citizen, June 3, 1999; see also Paul A. Williams, A Unified Family Court for Missouri , 63 UMKC L. Rev. 383, 384 (Spring 1995)

.14 when the evidence in a termination proceeding establishes the conditions requiring r e moval have substantially been uncorrected . . . . Th e consistent thread, over many y e ars flowing through the management of family cases, has been that so far as possible the j udge who initially h e ard the family matter sh ould remain with it to its conclusion. Indeed, one of the most disruptive and disconcerting factors in multi

- judge jurisdictions is the fragmentation of different aspects of a family case resulting from the hea ring by several judges of different stages of a particular proceeding . . . . Unless it was unavoidable, it would be self

- defeating for the judge assigned to the termination case to be a different judge than the one who heard the dependency case. The arg ument by appellant that a de novo hearing was necessary, so that bias emanating from prior hearings on dependen c y would not infect the termination proceedings, is unmerited unless it can be established that bias actually existed in fact . . . . A new judg e will not have the benefit of recall of hearings, reports and directions not fully detailed in the cold or abbreviated reports and records presented at the termination proceeding. That is not to say these recollections will be the basis for the terminati on decision, which must stand on its own evidence and be esta b lished by clear and convincing evidence. ¶18 W e also disagree with Lisa that permitting the juvenile court to both direct the filing of the motion pursuant to § 8

- 862 and to hear and decide it is t he equivalent of permitting a judge to order a criminal prosecution and presid e over the criminal trial, essentially permitting the judge to act as both prosecutor and trier of fact

. There is no support for Lisa’s assertion that, once the court determin es termination is in the best interests of the child and direct s ADES to file the motion to terminate, the court “wants to see a part icular outcome.” To the contrary, as noted above , there are many procedural protections to ensure termination is not a foreg one conclusion once the court orders
ADES to file a motion to terminate

. We find instructive the Supreme Court’s reasoning
in Withrow v. Larkin , 421 U.S. 35, 57

- 5 8 (1975) : “ [J]ust as there is no logical15

inconsistency between a finding of probable cause a nd an acquittal in a criminal proceeding,” a court’s finding there was no violation after an adversary hearing “would not implicitly be admitting error in its prior finding of probable cause. Its position most probably would merely reflect the benefit of a more complete view of the evidence afforded by an adversary hearing.” Cf. Rouse v. Scottsdale Unified Sch

. Dist. No. 48 , 156 Ariz. 369, 374, 752 P.2d 22, 27 (App. 1987) ( absent showing of actual bias or partiality, due process not violated when school board assumed investigative/prosecutorial and adjudicative roles). Conclusion ¶19 Lisa has not establish ed beyond a reasonable doubt that § 8

- 862 is facially unconstitutional

. A nd in the absence of any claim of actual bias or unfair ness by the juvenile court or any challenge as to the sufficiency of the evidence, the court’s order terminating Lisa’s parental rights to Julian is affirmed

.

/s/ 

# Garye L. Vásquez GARYE L. VÁSQUEZ, Presiding Judge
CONCURRING:

/s/ 

# Virginia C. Kelly VIRGINIA C. KELLY, Judge

/s/ 

# Philip G. Espinosa PHILIP G. ESPINOSA, Judge