Appeal in Gila County Juvenile Action No. J-3824, Matter of

• Decision Date: 24 November 1981
• Docket Number: No. 15429-PR,J-3824,15429-PR
• Citation: 637 P.2d 740,130 Ariz. 530
• Parties: In the Matter of the APPEAL IN GILA COUNTY JUVENILE ACTION NO.
• Court: Arizona Supreme Court

Page 740

637 P.2d 740

130 Ariz. 530

In the Matter of the APPEAL IN GILA COUNTY JUVENILE ACTION NO. J-3824.

No. 15429-PR.

Supreme Court of Arizona, In Banc.

Nov. 24, 1981.

Peter Cahill and Deborah Ham, Cahill & Ham, Globe, for appellant mother.

Sevrin Huselid, Globe, for minor child.

Robert K. Corbin, Atty. Gen. by Thomas A. Jacobs, Phoenix, for appellee Arizona Dept. of Economic Sec.

HAYS, Justice.

This is an appeal from an order of the Gila County court terminating the relationship between a two-year-old child and her mother and father. The Court of Appeals affirmed in a memorandum decision. This Court granted review. See A.R.S. § 8-236(A), as amended Laws 1980; Rule 28, Rules of Procedure for the Juvenile Court, 17A A.R.S. The decision of the Court of Appeals is vacated and the order of the trial court as to appellant mother is reversed.

Appellee, the Arizona Department of Economic Security, sought to terminate the relationship between appellant mother and her daughter on the ground that appellant was unable to discharge her parental responsibilities because of mental deficiencies. A.R.S. § 8-533(B)(3). When termination is sought for this reason, under A.R.S. § 8-535(D), "the court shall appoint a guardian ad litem for the alleged incompetent parent." However, no guardian was appointed for appellant.

Termination proceedings must be conducted in strict compliance with the statutes involved. In Webb v. Charles, 125 Ariz. 558, 611 P.2d 562 (App.1980), the court said "We can appreciate the court's concern for the welfare of the minor child and its desire to act in his best interest. However, when the state deprives a parent of the fundamental right to raise his child, the proceedings must be conducted in strict compliance with the statutes involved and under the aegis of the Fourteenth Amendment."

125 Ariz. at 561, 611 P.2d 562. See also Anguis v. Superior Court, 6 Ariz.App. 68, 429 P.2d 702 (1967). The court below, in failing to comply with the legislative mandate, deprived appellant of the assistance of a person capable of acting with full mental capacity in her behalf. Moreover, by Rule 22, Rules of Procedure for the Juvenile Court, 17A A.R.S., it is the responsibility of the court to ensure that the "asserted incompetent" receive the full panoply of legal rights by supervising the guardian ad litem. Rule 22 provides:

"The court shall require such guardian ad litem to faithfully discharge his duties and, upon his failure to do so, shall discharge him and appoint another."

The duty of the court to protect the interests of the asserted incompetent appellant manifestly could not be exercised since no guardian was appointed. This alone was a sufficient basis for reversal.

Appellee cites to A.R.S. § 8-531(5), which defines "guardian ad litem" as "a person appointed by the court to protect the interest of * * * an incompetent * * * " and argues any error in failing to appoint a guardian ad litem was harmless because appellant was represented by an attorney from the Pinal and Gila Counties Legal Aid Society. Appellant counters this argument by alleging she did not receive effective assistance of counsel in the Superior Court.

From the facts which have developed on appeal, it appears that appellant was originally represented by an attorney, Peter Cahill, of the Pinal and Gila Counties Legal Aid Society. Cahill represented her until May 21, 1980, withdrawing as her counsel when he entered private practice. Thereafter, from July 4, 1980 until November 18, 1980, Fernando Almendarez, also an attorney for the Pinal and Gila Counties Legal Aid Society, was responsible for her case. Between July 4, 1980 and the trial of this matter on October 22, 1980, appellant talked with Almendarez on the telephone several times regarding visitation with her child, but he did not otherwise discuss her case with her. Although appellant tried to get an appointment with him, she never met Almendarez until the day of the trial. Finally, an appointment was arranged for 9:00 a.m. in the office of the Pinal and Gila Counties Legal Aid Society on October 22, the day of the trial, but Almendarez did not arrive at the office until about 10:00 a.m., and he then told her to go to the courthouse where he would meet her. She next met Almendarez while walking into the courthouse, but even then there was no discussion of her case. Almendarez went to a conference with the judge, opposing counsel and petitioner's social worker, to which appellant was not invited. The trial began after this meeting. Appellant wanted to testify about her ability to care for her child and she wanted to contradict testimony of certain witnesses, but Almendarez told her he would not have her testify, even though she was told by the court that she could testify.

When Cahill was her attorney, appellant had told him she knew James A. MacDonald, a psychologist, and disliked him. Cahill therefore entered into an agreement with petitioner, the Department of Economic Security, that appellant would be examined by a Dr. Thomas O'Brien. Nevertheless, after Almendarez became her attorney, arrangements were made for appellant to be seen by Dr. MacDonald. When appellant called Almendarez to ask him if she had to be examined, he told her she did. "And the only reason given that petitioner, the Arizona Department of Economic Security, had ordered it."

As the trial progressed, the principal witness against appellant turned out to be Dr. MacDonald. He testified:

"Q. Does Miss Evans suffer from a mental illness or mental deficiency? A. Both, actually. The mental deficiency is the borderline retardation and mental illness would be the borderline personality development.

....

Q. In your opinion, Doctor, is Miss Evans able to parent a two year old child at this time?

A. No."

No cross-examination whatsoever was made by Almendarez of Dr. MacDonald. Nor was any objection made to the admission into evidence of his written report, Exhibit 1 in evidence. Moreover, no witness whatsoever was called in appellant's behalf, although potential witnesses existed, including a Dr. Theresa Flores, a psychologist who had testified on her behalf in a previous proceeding in this fashion.

"Q. Have you formed any opinion as to whether Nelda is capable of providing adequate care for her child?

A. Yes. I have formed a professional opinion that Nelda is capable of providing care for her child with some supervision to teach her some basic skills which she has apparently not learned before."

In addition, A.R.S. § 8-538(A) provides:

"Every order of the court terminating the parent-child relationship ... shall be in writing and shall recite the findings upon which such order is based, ...."

In this case, the court's findings of fact stated only that appellant was the natural mother of the child born to her on September 15, 1978, that she had personal notice of the proceeding for the termination of the parent-child relationship, that no person who claimed to be the natural father of the child made an appearance in the action, and that any person claimed to be the natural father of the child has failed to maintain a parental relationship with the child. No finding of fact whatsoever was made concerning the statutory grounds for severance of the relationship, namely, that she had neglected the child and was unable to discharge her parental responsibilities because of mental deficiencies which would continue for such a time as to require the severance of the parent-child relationship. Appellant's counsel, Almendarez, failed to object to the findings of fact and conclusions of law and the order predicated thereon terminating the relationship between appellant and her child.

Almendarez did file a notice of appeal, but the supporting memorandum required by Rule 25(b), Rules of Procedure for the Juvenile Court, 17A A.R.S., was only one-half page long. Subsequently, appellant discharged Almendarez, retaining her former counsel, Peter Cahill, who filed a supplemental memorandum on her behalf raising the issues herein considered.

The facts developed by appellant's present counsel compel us to conclude that appellant received ineffectual assistance of counsel in the Superior Court.

Appellant also challenges the constitutionality of A.R.S. § 8-537(B), which sets the standard of proof in termination proceedings as a preponderance of evidence. Appellant argues that because individual rights are involved in termination cases, the standard of proof must be "clear and convincing evidence" in order to satisfy the requirements of substantive due process.

In deciding what due process requires in the context of a particular proceeding, we must evaluate the private interests at stake, the state's interests, and the risk that the procedures used will lead to erroneous decisions. Lassiter v. Department of Social Services of Durham County, --- U.S. ----, ----, 101 S.Ct. 2153, 2159, 68 L.Ed.2d 640 (1981). Such an analysis was employed by the Court of Appeals in Hernandez v. State ex rel. Arizona Department of Economic Security, 23 Ariz.App. 32, 530 P.2d 389 (1975), where the court identified the competing interests as follows:

"As usual, we are faced with the judicial task of balancing competing interests. We are not only concerned with the rights of the natural parents but also the rights of the minor child, which include the right to good physical care, adequate food, shelter and clothing, the right to emotional security, the right to be free from injury and neglect and the right to be with his natural parents and siblings.

"If one were to focus only on the rights of the natural parents it would perhaps be arguable that a burden of proof higher than a preponderance of the evidence is necessary to achieve the sometimes elusive standard of 'fundamental fairness'. After all, for some parents the loss of a child through this legal process can be as serious as imprisonment in a criminal case. However, we are not...