Appeal in Maricopa County Juvenile Action No. JS-4942, Matter of, JS-4942
| Citation | 142 Ariz. 240,689 P.2d 183 |
| Decision Date | 09 August 1984 |
| Docket Number | No. 1,CA-JUV,JS-4942,1 |
| Parties | In the Matter of the APPEAL IN MARICOPA COUNTY JUVENILE ACTION NO.218. |
| Court | Arizona Court of Appeals |
This is an appeal by Barry Paul Levine, the natural father of the juvenile. The specific question raised in this appeal is whether the father was given a proper hearing before his parental rights were severed.
The facts pertinent to a resolution of this case, as presented to the trial court, are set out below. The appellee, Ivy Leslie (Levine) Segal, the natural mother of the juvenile, initiated the case by filing a petition for termination of the parent-child relationship of Barry Paul Levine. The appellant father answered the petition and requested that an attorney be appointed to represent him. The court appointed Glenn C. Johnson as the father's attorney. The father was serving a sentence at the federal prison in Lompoc, California. He had been convicted of serious narcotics offenses and had been sentenced to serve prison time of four years on two counts to run concurrently. Additionally, he was sentenced to serve five years on a third count, which sentence was to run consecutively to the four year prison terms.
The court held a hearing on March 30th and 31st, 1983, without the presence of the father, and continued the hearing until June 24, 1983 to give the father a chance to testify. The father did not appear for the continued session which forms the issue of this case.
After hearing the evidence the court, as part of the order for judgment, entered the following Conclusions of Law:
1. That the Court has jurisdiction over this matter pursuant to A.R.S. 8-531 et seq.
2. That the petitioner has failed to carry her burden (i.e. clear and convincing evidence) that the respondent has abandoned the child.
3. That the petitioner has failed to carry her burden that he has been convicted of a felony of such nature to prove his unfitness as a parent (though this is open to debate).
4. That the respondent has been deprived of his civil liberties and the sentence is of such a length that the child will be deprived of a normal home for a period of years (9).
The trial court entered an order terminating the parent-child relationship of the father to the juvenile and awarded custody of the minor juvenile girl to her mother, Ivy Leslie Segal.
The father filed a motion for a rehearing, or in the alternative, a notice of appeal. The court denied the motion for rehearing and treated the motion as a notice of appeal. We find we have jurisdiction to decide this case.
Based on the evidence before the trial court, this court cannot say there was any error in the order of severance. However, we cannot tell from the record whether the appellant father was ever properly notified of the severance hearings. In open court on June 24, 1983, the following conversation took place:
THE COURT: ... The record should reflect that this matter was recessed from its last hearing to this date until yesterday and ultimately until this morning so that Mr. Golston could cross-examine Mr. Levine.
And that Mr. Johnson could call Mr. Levine as a witness for the respondent:
Mr. Johnson, could you bring us up to date on the latest whereabouts of Mr. Levine, why he is not here?
MR. JOHNSON: Yes, Your Honor, I would be happy to. Unfortunately, Mr. Levine is not here. My information from a Mr. Ochoa at the Federal Probation Office here in Phoenix as recently as last week was that all arrangements were made for Mr. Levine's attendance here on furlough status.
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I had not heard from him.
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I attempted--I had not heard from my client as of yesterday.
Mr. Levine denies he was ever advised of the...
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