Opinion
No. 1 CA-JV 15-0125
10-01-2015
In re ZACHARY Q.
COUNSEL Maricopa County Attorney's Office, Phoenix By E. Catherine Leisch Counsel for Appellee Maricopa County Public Advocate, Mesa By Suzanne Sanchez, Colleen A. Engineer Counsel for Appellant
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. JV597476
The Honorable Steven P. Lynch, Commissioner
AFFIRMED
COUNSEL Maricopa County Attorney's Office, Phoenix
By E. Catherine Leisch
Counsel for Appellee
Maricopa County Public Advocate, Mesa
By Suzanne Sanchez, Colleen A. Engineer
Counsel for Appellant
MEMORANDUM DECISION
Judge Patricia K. Norris delivered the decision of the Court, in which Presiding Judge Donn Kessler and Judge Andrew W. Gould joined. NORRIS, Judge:
¶1 On appeal, Zachary Q. argues the juvenile court should not have revoked his probation because the probation term the juvenile court found he violated was not sufficiently detailed, and the juvenile court failed to make adequate findings of fact in support of the revocation. We disagree with the first argument, and although the juvenile court did not make adequate factual findings, its failure to do so does not constitute reversible error. Thus, we affirm the juvenile court's order revoking Zachary's probation.
FACTS AND PROCEDURAL BACKGROUND
We view the facts in the light most favorable to sustaining the juvenile court's order revoking Zachary's probation. See State v. Tatlow, 231 Ariz. 34, 39-40, ¶ 15, 290 P.3d 228, 233-34 (App. 2012). --------
¶2 In June 2014, Zachary pleaded guilty to two felonies and the juvenile court placed him on probation. Term 19 of Zachary's probation required him to:
Participate in, cooperate with, and successfully complete all therapy, counseling, treatment, or placement as arranged by your parents, school, placement, or probation officer including:
. . . .
Treatment @ The Resolution Group—to work w/ therapist[.]
¶3 In January 2015, the Resolution Group discharged Zachary for non-compliance with its rules and dishonesty in therapy sessions and in his written work. Because he had failed to complete his treatment at the Resolution Group, Zachary's probation officer petitioned to revoke his probation.
¶4 At the probation revocation hearing, Zachary's probation officer testified that, before Zachary began treatment, she went over the Resolution Group's expectations with him at "length," and she "[got] pretty specific about what the expectations [were]." The probation officer also testified that before the Resolution Group discharged Zachary, she "had a number of conversations with him . . . in hopes of prompting him to come back into compliance." Zachary's therapist testified the Resolution Group informs juveniles of its rules and expectations when they are admitted for treatment, but Zachary repeatedly failed to comply with these rules and expectations and was dishonest during therapy sessions and in his written work.
¶5 The juvenile court found Zachary had violated Term 19 and revoked his probation.
DISCUSSION
I. The Juvenile Court Properly Revoked Zachary's Probation for Failure to Comply with Term 19
¶6 Zachary argues the juvenile court should not have revoked his probation because Term 19, as written, did not detail the rules and expectations of the Resolution Group and, thus, was vague and "not specific enough as to answer what participation, cooperation or successful completion" was required. We disagree.
¶7 Although the Resolution Group's rules and expectations were not detailed in the terms of his probation, that level of detail was not required. See State v. Alves, 174 Ariz. 504, 505-06, 851 P.2d 129, 130-31 (App. 1992) (while, in general, "a probationer cannot be revoked for violating a term or condition of probation which has not been provided to the probationer in writing," this rule does not "require that the rules and regulations of any program in which a probationer is required to participate be furnished in writing"). The testimony at the probation revocation hearing established Zachary was aware of the Resolution Group's rules and expectations, was on notice that failure to comply would result in a revocation of probation, and had been warned about his dishonest behavior. Cf. State v. Peralta, 175 Ariz. 316, 318, 856 P.2d 1194, 1196 (App. 1993) (revocation of probation appropriate for failure to comply with rules of therapeutic program though program's rules not explicitly written into terms of probation because "the rules were explained to the defendant"; he was "familiar with the rules and knew that violations could result in his dismissal"; and "he was given warnings that his behavior was substandard prior to his dismissal"); see also Alves, 174 Ariz. at 507, 851 P.2d at 131 ("An arbitrary termination from a program, or a termination for the violation of a rule which a probationer is not, and could not be expected to be aware of, will not support a revocation of probation.").
¶8 Nevertheless, in arguing for reversal of the revocation of his probation, Zachary relies on In re Richard M., 196 Ariz. 84, 85-86, ¶¶ 4-8, 993 P.2d 1048, 1049-50 (App. 1999). There, we reversed the revocation of a juvenile's probation because the term he violated—"allow and cooperate with drug and alcohol testing and treatment as directed by [his] probation officer"—did not specify the drug testing program in which he was to participate nor when or where he was to test. Id. That case is, however, distinguishable. The juvenile there did not have written notice of his drug testing regime; his probation officer merely gave him an oral directive which she never "reduced to writing." Id. at 86, ¶¶ 5, 8, 993 P.2d at 1050. Here, although the Resolution Group's rules and expectations had not been reduced to writing, what Zachary had to do—successfully complete the Resolution Group's treatment program—had been. Thus, unlike the situation in Richard M., Zachary had a written record of what his probation required. See generally State v. Robinson, 177 Ariz. 543, 544, 869 P.2d 1196, 1197 (1994) (rule requiring probation terms to be in writing "was intended to reduce evidentiary disputes over what probationers are told and to protect probationers against probation officers' arbitrary acts"), cited in Richard M., 196 Ariz. at 86, ¶ 6, 993 P.2d at 1050.
¶9 To the extent Zachary's brief can be read as challenging the sufficiency of the evidence of his probation violation, we also disagree with that argument. "We will uphold a trial court's finding that a probationer has violated probation unless the finding is arbitrary or unsupported by any theory of evidence." State v. Thomas, 196 Ariz. 312, 313, ¶ 3, 996 P.2d 113, 114 (App. 1999). The testimony of Zachary's probation officer and therapist discussed above, see supra ¶ 4, provided sufficient evidence for the juvenile court to find Zachary had violated Term 19. II. The Juvenile Court's Failure to Make Adequate Findings of Fact is Not Reversible Error
¶10 Zachary correctly points out that the juvenile court failed to make any specific written "findings of fact which establish[ed] a violation of probation" as required by Arizona Rule of Procedure for Juvenile Court 32(E)(4)(b). Instead of providing the "ultimate facts . . . necessary to resolve the disputed issues," Ruben M. v. Ariz. Dep't of Econ. Sec., 230 Ariz. 236, 241, ¶ 25, 282 P.2d 437, 442 (App. 2012) (quoting Elliot v. Elliot, 165 Ariz. 128, 132, 796 P.2d 930, 934 (App. 1990)), the juvenile court merely stated it found "the State has proven beyond a preponderance of the evidence that the juvenile has violated the terms of his probation as alleged . . . ." Under the particular circumstances here, however, the juvenile court's failure to make adequate factual findings is not reversible error.
¶11 First, Zachary did not challenge the adequacy of the findings in the juvenile court. By waiting until appeal to object to the juvenile court's inadequate factual findings, Zachary has waived this argument. See Christy C. v. Ariz. Dep't of Econ. Sec., 214 Ariz. 445, 452, ¶¶ 20-21, 153 P.3d 1074, 1081 (App. 2007) ("[A] party may not 'sit back and not call the trial court's attention to the lack of a specific finding on a critical issue, and then urge on appeal that mere lack of a finding on that critical issue as a grounds for reversal.'" (quoting Bayless Inv. & Trading Co. v. Bekins Moving & Storage Co., 26 Ariz. App. 265, 271, 547 P.2d 1065, 1071 (1976)).
¶12 Second, even if Zachary had not waived this argument, a court's failure to make adequate written findings of fact in support of the revocation of probation does not always constitute reversible error. For example, in State v. Alves, the superior court failed to make adequate written findings of fact concerning a probation violation; however, because the superior court "had been requested to decide between only two conflicting versions of a single alleged violation," its failure to make adequate written findings of fact "was merely technical" and not reversible error. 174 Ariz. at 506, 851 P.2d at 131; see generally Ariz. R. Crim. P. 27.8(b)(4) ("If the court finds that a violation of a condition or regulation of probation occurred, it shall make specific findings of the facts which establish the violation . . . .").
¶13 Here, even more so than in Alves, the juvenile court's failure to make adequate written findings of fact was merely technical. The juvenile court heard only one version of the only probation violation alleged—Zachary rested without presenting any conflicting evidence. Implicit, then, in the juvenile court's ruling was a finding that the Resolution Group had properly discharged Zachary for non-compliance and dishonesty. Cf. id. at 507, 851 P.2d at 132 (because superior court only needed to decide between two versions of probation violation, implicit in ruling revoking probation was finding probationer was "justifiably terminated from the [therapeutic] program" for the violation the State alleged); see also Ruben M., 230 Ariz. at 240, ¶ 24, 282 P.2d at 441 ("The primary purpose for requiring a court to make express findings of fact and conclusions of law is to allow the appellate court to determine exactly which issues were decided and whether the lower court correctly applied the law.").
¶14 Thus, under the circumstances presented, the juvenile court's failure to make any specific written findings of fact which supported its decision to revoke Zachary's probation does not constitute reversible error.
CONCLUSION
¶15 For the foregoing reasons, we affirm the juvenile court's order revoking Zachary's probation.