Opinion
No. 2 CA-JV 2018-0209
04-23-2019
IN RE Z.B.
COUNSEL Brian McIntyre, Cochise County Attorney By Sandy Russell, Deputy County Attorney, Sierra Vista Counsel for State Emily Danies, Tucson Counsel for Minor
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f); Ariz. R. P. Juv. Ct. 103(G).
Appeal from the Superior Court in Cochise County
No. JV201700074
The Honorable Karl D. Elledge, Judge
REVERSED
COUNSEL
Brian McIntyre, Cochise County Attorney
By Sandy Russell, Deputy County Attorney, Sierra Vista
Counsel for State
Emily Danies, Tucson
Counsel for Minor
MEMORANDUM DECISION
Chief Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Eppich and Judge Espinosa concurred.
ECKERSTROM, Chief Judge:
¶1 In this appeal, Z.B. challenges the juvenile court's order dismissing a delinquency petition "without prejudice," arguing the court was statutorily required to dismiss the petition with prejudice. We agree, and therefore reverse the court's order, remanding the matter for further proceedings.
¶2 In August 2017, the Cochise County Attorney, pursuant to A.R.S. § 8-301(2), filed a petition alleging Z.B., born June 2005, had committed two counts of child molestation. Z.B. filed a motion requesting a competency evaluation, citing concerns of Z.B.'s guardian ad litem and counsel that he lacked the ability to "distinguish fantasy from reality" and that he was below "the mental functioning of a twelve-year-old." The juvenile court granted the motion and two evaluations were made. The parties stipulated Z.B. was incompetent, but restorable.
¶3 After several competency hearings, the juvenile court determined further participation in treatment would not "lead to restoration to competency, at least not within statutory time periods." It found Z.B. was not malingering and suffered from a mental disorder and may present a danger to himself or others. It ordered the petition dismissed without prejudice and further ordered a neurological evaluation to determine treatment possibilities and placement. This appeal followed.
¶4 On appeal, Z.B. argues the juvenile court erred in dismissing the petition without prejudice, contending it should have been dismissed with prejudice pursuant to A.R.S. § 8-291.10(H). The state concedes error.
¶5 "Although we ultimately decide whether the juvenile court abused its discretion in dismissing the petition[], we review de novo issues that involve interpretation of the juvenile competency statutes." In re Eric W., 229 Ariz. 107, ¶ 18 (App. 2012) (citation omitted). In interpreting a statute our primary goal is to "give effect to legislative intent." Id. (quoting
In re Wilputte S., 209 Ariz. 318, ¶ 10 (App. 2004)). "In our analysis, we look first to a statute's language . . . ." Id.
¶6 Section 8-291.10(H) provides that if a court finds a juvenile incompetent and further finds "there is not a substantial probability that the juvenile will regain competency within two hundred forty days after the date of the original finding of incompetency, the juvenile court shall dismiss the charges with prejudice and shall initiate civil commitment proceedings, if appropriate." "The ordinary meaning of the word 'shall,' in the context of a statute, is to impose a mandatory duty. The use of the word 'shall' indicates a mandatory intent." In re Navajo Cty. Juv. Action No. JV-94000086, 182 Ariz. 568, 570 (App. 1995). Thus, as Z.B. argues, and as the state concedes, the court was required to dismiss the petition with prejudice upon determining Z.B. could not be restored within the statutory timeframe.
¶7 Therefore, the juvenile court's order is reversed and the matter is remanded to the court for further proceedings consistent with this decision and § 8-291.10(H).