Opinion
No. 1 CA-JV 17-0482
05-22-2018
JACOB C., HALLIE D., Appellants, v. DEPARTMENT OF CHILD SAFETY, G.C., C.C., Appellees.
COUNSEL Robert D. Rosanelli, Phoenix Counsel for Appellant Jacob C. Law Office of Florence M. Bruemmer, P.C., Anthem By Florence M. Bruemmer Counsel for Appellant Hallie D. Arizona Attorney General's Office, Phoenix By Amanda Adams Counsel for Appellee Department of Child Safety
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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 Yavapai County
No. V1300JD820090003
The Honorable Don Stevens, Judge Pro Tem
AFFIRMED
COUNSEL Robert D. Rosanelli, Phoenix
Counsel for Appellant Jacob C. Law Office of Florence M. Bruemmer, P.C., Anthem
By Florence M. Bruemmer
Counsel for Appellant Hallie D. Arizona Attorney General's Office, Phoenix
By Amanda Adams
Counsel for Appellee Department of Child Safety
MEMORANDUM DECISION
Judge Jon W. Thompson delivered the decision of the Court, in which Presiding Judge Kenton D. Jones and Judge Michael J. Brown joined. THOMPSON, Judge:
¶1 Appellees Jacob C. (father) and Hallie D. (mother) appeal from the juvenile court's order finding their children G.C. and C.C. dependent. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 Twins G.C. and C.C. (the children) were born in November 2016. They were born prematurely and substance-exposed. In May 2017, DCS received a report that father and mother had engaged in domestic violence in the presence of the children. Police arrested father. Mother admitted to smoking marijuana and taking "heavy medications" including morphine. The family residence had "trash everywhere" and dirty diapers on the floor.
¶3 In June 2017, the children were admitted to the hospital. Both children were diagnosed with failure to thrive, and G.C. presented with signs of pneumonia. Father and mother engaged in further domestic violence altercations at the hospital. DCS took the children into temporary custody when they were discharged from the hospital and filed a dependency petition alleging that the children were dependent due to neglect, drug abuse, and mother's untreated mental illness.
¶4 In July 2017, mother's first attorney in this matter filed a motion to withdraw due to irreconcilable differences and asked that new counsel be appointed for mother. The court granted the motion. In July 2017, father's attorney filed a motion requesting the court to appoint new counsel for father. The motion informed the court that father was newly indigent and that the attorney client relationship with father had been irreparably damaged. The court granted the motion. In August 2017, mother's second attorney filed a motion to withdraw due to a breakdown in attorney-client communication and irreconcilable differences. The court granted the motion. Also in August 2017, father's second attorney filed a motion to withdraw. The motion stated that communication had broken down between the attorney and father and that father requested counsel to withdraw. The court granted the motion.
¶5 Less than two weeks later, the court held a pretrial conference. At the pretrial conference the court asked both parents whether they would like the court to appoint additional counsel for them. Father informed the court that he wanted to represent himself, and that he did not "want any more attorneys coming . . . and representing [him]." Mother told the court:
[W]hat we are doing is firing these attorneys. They're not for us and we want an attorney—if we're going to have one, we want one that's going to fight for our rights and stand up for what's going on . . . . I don't want an attorney who is going to sit here and try and tell me to divorce my husband. So . . . if it's going to be like that, then I'd rather go pro per. . . . But if you can find us an attorney that's going to respect our rights, our parental rights and the Constitution, then by all means, we will have that attorney. But it doesn't look that way.The judge placed mother and father under oath and the following colloquy occurred:
[THE COURT]: Part of the reason for the hearing today was . . . I have to decide . . . whether or not you have . . . voluntarily and knowingly agreed to represent yourself or whether or not you're asking the Court for additional time to get a lawyer. The Court is not going to go out and interview people that may or may not suit your preference or . . . with whom you may be satisfied. I suspect now that you believe that any lawyer that's appointed by the court is suspect because they won't stand up for your rights. So have you made any arrangement with private counsel to represent you at your expense?
[MOTHER]: With what money? . . . No.
[THE COURT]: All right. So given that, and given the fact that you are not satisfied with the
prior counsel that has been appointed, your options are to represent yourself in the hearing or to make other arrangements. But I'm not sure that anyone can meet your standards. But if . . . a lawyer has given you independent advice, says I don't think your case is very good and you want to fire him because you don't agree with him, then we could be here forever. So it's important to the boys to have this matter resolved. So that's where I'm trying to figure out what we're doing. . . . I'm listening to you now. Are you ready to go to trial [father]?Father then informed the court that he wanted to file a motion to dismiss the dependency and the parties discussed deadlines for the motion to dismiss and any response as well as the trial date. At the end of the hearing, the trial court confirmed that both father and mother wanted to represent themselves, and found that they knowingly and intelligently waived their right to counsel in the proceedings.
[FATHER]: Yes. We could set this for trial.
¶6 On the day set for the dependency trial, mother and father appeared, unrepresented. The court spoke to the parties about how trial would proceed, and mother and father both became disruptive and used foul language with the court. After father stated that the court was a "kangaroo court" that was "full of shit," and threatened the court, mother and father informed the court that they wanted to leave, and they did so. The court asked security to have the parents return to the courtroom, and when they did the court held father in contempt. The parents left the courtroom again.
¶7 After the parents left the hearing, the state asked the court to find that mother and father had failed to appear without good cause, and to find that the failure to appear was an admission of the state's allegations in the dependency petition. Although the court found that mother and father had waived their appearance by voluntarily leaving the courtroom, the court declined to grant the motion to grant the dependency without a trial. The court admitted the state's exhibits into evidence and heard the testimony of two DCS workers. At the conclusion of the trial, the court found that the state had proven the allegations of the dependency petition. The court granted the state's motion to suspend the parents' visitation with the children until there was a therapeutic recommendation that visitation resume. Mother and father timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) sections 8-235(A) (2018), 12-120.21(A)(1) (2018), and 12-2101(A)(1) (2018).
We cite the current version of the applicable statute unless revisions material to this decision have occurred since the events in question.
DISCUSSION
¶8 Father argues that the trial court abused its discretion and denied his due process right to counsel by allowing him to represent himself at the dependency trial and denied him due process by proceeding to disposition and suspending visitation without prior notice. Mother argues that she was denied due process in the dependency proceedings because the trial court did not admonish her of the consequences of leaving the dependency hearing, because the court did not reset the trial and reconsider whether to appoint new counsel for mother or consider whether mother needed a guardian ad litem (GAL) "or other assistance," and because mother had no prior notice that the trial court would be addressing the issue of visitation after finding the children dependent.
A. Self-Representation and GAL for Mother
¶9 "We review the interpretation of statutes, court rules, and constitutional issues de novo." Brenda D. v. Dep't of Child Safety, 234 Ariz. 437, 424, ¶ 15 (2018) (citation omitted). We review the juvenile court's failure to sua sponte appoint a GAL for a parent for an abuse of discretion. Kelly R. v. Ariz. Dep't of Econ. Sec., 213 Ariz. 17, 21, ¶ 24, n.6 (App. 2006) (citation omitted).
¶10 A parent's right to counsel in juvenile proceedings is afforded by statute, by rule, and by the Due Process Clause. Daniel Y. v. Ariz. Dep't of Econ. Sec., 206 Ariz. 257, 260, ¶ 14 (App. 2003). Section 8-221(B) (2018) provides that if a parent "is found to be indigent and entitled to counsel, the juvenile court shall appoint an attorney to represent the [parent]" unless the parent waives the right to be represented by counsel. "Because A.R.S. § 8-221(B) implements a due process right, the standard for waiver of counsel under the statute is not different than it is for any other constitutional right. The waiver of constitutional rights is not easily presumed." Daniel Y., 206 Ariz. at 260, ¶ 15. In the criminal context, "[w]hether a defendant can make an intelligent waiver depends on the totality of the facts and the circumstances of the case. Factors the court can consider include a defendant's background and experience; any current or past problems relating to mental competency, his understanding of his constitutional rights and the role of counsel within the legal system." State v. Mott, 162 Ariz. 452, 458 (App. 1989) (citations omitted). Before a finding that a defendant has waived the right to counsel can be made, the court must advise him about the dangers of self-representation and the difficulties it presents. Daniel Y., 206 Ariz. at 261, ¶ 15 (citation omitted). A parent is not entitled to his or her counsel of choice or a meaningful relationship with counsel. See State v. Moody, 192 Ariz. 505, 507 (1998).
Ariz. R. P. Juv. Ct. 38.
¶11 Mother argues that her waiver of counsel was not knowing and intelligent given her mental illness, and that the trial court did not give her the option to have a new attorney appointed for her or at a minimum advisory counsel or a GAL. Father concedes that he told the court he wanted to represent himself but argues that the court should have at least appointed advisory counsel for the parents. In this case, the trial court warned the parents multiple times that if they represented themselves they would be "bound by the same rules," including providing the state with disclosure, and that they would not receive "extra leeway" from the court. The court further explained to the parents that if they represented themselves they would need to cross-examine witnesses. After the trial court warned the parents of the dangers of self-representation, mother and father unequivocally stated that they each intended to proceed without counsel. The court then found that the parents knowingly and intelligently waived their right to be represented. Based on this record, we find no due process violation.
¶12 The fact that the trial court subsequently found that the children were dependent in part due to mother's untreated mental illness does not mean that mother could not competently waive her constitutional right to an attorney. See State v. Evans, 125 Ariz. 401, 403 (1980) (citations omitted). Further, mother's argument that the court should have sua sponte appointed a GAL for her because the court had once remarked that the parents appeared to "need assistance" (after mother shouted at the court over the phone) and because her mental illness was a ground for the dependency is not well-taken. Under Arizona Rule of Juvenile Court Procedure 40(C), the court "shall appoint a [GAL] to conduct an investigation and report to the court as to whether the parent . . . may be incompetent and in need of protection" if the court has reason to believe the parent may be incompetent. However, "[a] mentally ill parent is not necessarily a mentally incompetent parent." Kelly, 213 Ariz. at 21, ¶ 25. No party in the case, including mother, ever requested the court to appoint a GAL for mother and nothing in this record indicates that mother was incompetent. We find no abuse of discretion.
B. Voluntary Absence from Courtroom and Visitation
¶13 Mother argues that the trial court violated her due process rights by proceeding to trial without admonishing her that trial would continue if the parents left the courtroom and by failing to sua sponte reset the trial. Both parents argue that their due process rights were violated because they lacked notice that the juvenile court would proceed to disposition and suspend their visitation with the children. We disagree.
¶14 Section 8-844(F) (2018) provides:
If a parent does not appear at the pretrial conference, settlement conference or dependency adjudication hearing, the court, after determining that the parent has been instructed as provided in § 8-826, may find that the parent has waived the parent's legal rights and is deemed to have admitted the allegations of the petition by the failure to appear. The court may make a determination of dependency and disposition based on the record and evidence presented . . . .See also Ariz. R. P. Juv. Ct. 55(D)(2) (consequence of failure to appear may constitute a waiver of rights and admission to the allegations in the dependency petition and court may find child dependent if petitioner has proven grounds for dependency). Section 8-826 (2018) provides that "[t]he court shall . . . instruct the parent . . . that the failure to appear at the pretrial conference, settlement conference or dependency adjudication hearing may result in an adjudication of dependency and disposition as to the parent . . . who does not appear."
¶15 Here, the parents received notice of the dependency hearing and were present in the courtroom at the beginning of the hearing. Thereafter, they chose to become belligerent and absented themselves from the hearing, despite having been warned in writing by the court of the possibility that the children could be adjudicated dependent if they failed to attend the dependency hearing. Moreover, the court specifically warned the parents verbally at the dependency hearing that appealing the court's order denying father's motion to dismiss would not stay the dependency proceedings. After the parents left the courtroom, the juvenile court explicitly found that the parents "voluntarily waived their right to appear, participate, or present evidence." After adjudicating the children dependent, the court proceeded, as authorized by A.R.S. § 8-826, to disposition, affirmed the children's placement, and granted the state's motion to suspend visitation with parents. The fact that the parents chose not to exercise their due process rights by remaining present in the courtroom does not establish a deprivation of constitutional rights. We find no due process violation.
Form 1, provided to and signed by both parents, stated, in part:
You are a party in a dependency case. If the Court determines that your child is dependent, then the Court will make decisions about the care and custody of your child until you demonstrate that you are able to do so. . . . As part of this case, there will be additional court hearings. You are required to attend all court hearings. If you cannot attend a court hearing, you must prove to the Court that you had good cause for not attending. If you fail to attend the . . . Dependency Adjudication Hearing without good cause, the Court may determine that you have waived your legal rights, and admitted the allegations in the dependency petition. The Court may go forward with the Dependency Adjudication Hearing in your absence and may rule that your child is dependent based on the record and evidence presented.
The court granted the state's motion to discontinue visitation until a therapist recommends visitation to resume, finding that "[t]he continuing conduct of the parents that is abusive, aggressive and threatening is not in the best interest of the children. . . . Under the circumstances, the Court does not believe that the best interests of the children are served by exposing them to two parents, who for a variety of reasons, are unable to control themselves, who see everyone as the enemy and who are not cooperating in services to have the family restored." --------
CONCLUSION
¶16 For the foregoing reasons, we affirm.