Cecilia A. v. Arizona Dep't of Econ. Sec.

• Decision Date: 12 April 2012
• Docket Number: No. 1 CA–JV 11–0167.,1 CA–JV 11–0167.
• Citation: 632 Ariz. Adv. Rep. 38,274 P.3d 1220,229 Ariz. 286
• Parties: CECILIA A., Appellant, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, A.G., Appellees.
• Court: Arizona Court of Appeals

229 Ariz. 286

274 P.3d 1220

632 Ariz. Adv. Rep. 38

CECILIA A., Appellant,

v.ARIZONA DEPARTMENT OF ECONOMIC SECURITY, A.G., Appellees.

No. 1 CA–JV 11–0167.

Court of Appeals of Arizona, Division 1, Department A.

April 12, 2012.

The Stavris Law Firm, PLLC by Alison Stavris, Scottsdale, Attorney for Appellant.

Thomas C. Horne, Attorney General by Jamie R. Katelman, Assistant Attorney General, Phoenix, Attorneys for Appellee, Arizona Department of Economic Security.

Burguan Clarke Law Office, PLLC by Jessica J. Burguan, Phoenix, Attorneys for Appellee, A.G.

OPINION

TIMMER, Judge.

¶ 1 We are asked to decide whether the juvenile court violates a mentally impaired parent's due process rights when it fails to suspend a parental severance hearing until the parent can regain the ability to meaningfully participate in the proceedings and assist counsel. In deciding this issue, we must also determine a guardian ad litem's authority to act for a parent in severance proceedings. For the reasons that follow, we affirm.

BACKGROUND

¶ 2 Three months after twenty-month-old A.G. was put in a voluntary foster-care placement, the Arizona Department of Economic Security (“ADES”) petitioned for a dependency as to mother Cecilia A. (“Mother”), alleging neglect and continued inability to parent due to mental health issues.¹ At the first hearing, at the request of Mother's counsel and pursuant to Arizona Revised Statutes (“A.R.S.”) section 8–535(F) (West 2012),² the court appointed a guardian ad litem (“GAL”) to protect Mother's interests throughout the juvenile court proceedings. The court also appointed a GAL for A.G. The court later found A.G. dependent as to Mother on the grounds alleged.

¶ 3 Almost two years later, A.G.'s GAL moved for termination of Mother's parental rights pursuant to A.R.S. § 8–533(B)(8)(c), alleging A.G. had been in an out-of-home placement for more than fifteen months, Mother had been unable to remedy the circumstances causing the placement, and there was a substantial likelihood she would not be capable of parenting A.G. in the near future. As the date of the contested severance hearing approached, Mother's GAL informed the court that Mother was unable to meaningfully assist counsel at the hearing, and it was not in her best interest to either hear testimony related to the severance or testify about the matter. Thereafter, with agreement by Mother's GAL, A.G.'s GAL, and the attorney for ADES, and with Mother's counsel taking no position, the court presided over a severance hearing in which the parties stipulated to exhibits and only the case manager testified; the court excused Mother from the courtroom. Mother's counsel did not cross-examine the case manager. On the basis of this evidence, the court concluded severance was warranted under A.R.S. § 8–533(B)(8)(c) and would be in A.G.'s best interests.

¶ 4 Mother's GAL filed a timely notice of appeal stating that Mother “may wish to appeal” the severance order, but relating Mother was unable to assist or direct counsel about whether she wished to appeal the termination. ADES moved to dismiss the appeal for failure to include an avowal by counsel as required by Arizona Rule of Procedure for the Juvenile Court (“Rule”) 104(B), and this court suspended the appeal and directed the juvenile court to determine the sufficiency of the notice of appeal. The juvenile court conducted a hearing on the issue and, recognizing Mother's unusually limited understanding of the proceedings, denied ADES' motion to strike the notice of appeal and authorized Mother's GAL to file the appeal nunc pro tunc.

DISCUSSION

¶ 5 Mother does not challenge the court's finding that grounds for severance exist under A.R.S. § 8–533(B)(8)(c) or that severance is in A.G.'s best interests. Rather, she argues the juvenile court violated her right to due process by proceeding with the severance hearing despite recognizing she neither understood the nature of the proceedings nor could assist her counsel in opposing the severance.

I. Jurisdiction

¶ 6 Before addressing the merits of the appeal, we consider our jurisdiction to do so. In its answering brief, ADES renews its request to dismiss the appeal, arguing the juvenile court acted in contravention to Rule 104(B) by retroactively authorizing Mother's GAL to file the notice of appeal. Mother did not file a reply brief, so she has taken no position on this issue. Nevertheless, in light of Mother's opposition to the initial motion to dismiss and the rights at stake, we do not take her silence as a confession of error. See Pinal County, Juvenile Action No. S–389, 151 Ariz. 564, 565, 729 P.2d 918, 919 (App.1986) (noting appellate court has discretion to treat lack of a response as a confession of error).

¶ 7 Rule 104(B) provides in relevant part as follows:

... When the appellant is represented by counsel, the notice of appeal or cross-appeal shall contain the following statement: “By signing and filing this notice of appeal, undersigned counsel avows that [he/she] communicated with the client after entry of the judgment being appealed, discussed the merits of the appeal and obtained authorization from the client to file this notice of appeal.” If counsel for a party files a notice of appeal or cross-appeal that does not contain the required statement, the clerk of the superior court shall forthwith refer the notice of appeal or cross-appeal to the judge assigned to the case in the juvenile court. Upon receiving the referral, the assigned judge shall promptly issue an order striking the notice of appeal or cross-appeal and directing the clerk of the superior court not to process it under rules 104 and 105 of these Rules.

ADES first argues that under the plain meaning of this rule, because Mother was represented by counsel, the notice of appeal was defective as it did not contain the required avowal. But, as ADES acknowledges, Mother's attorney did not file the notice of appeal; Mother's GAL filed it. Consequently, just as Rule 104(B) is not triggered when a party files a notice on his or her own behalf, Rule 104(B) is not triggered by a GAL's filing. We reject ADES' contention that Rule 104(B) requires an avowal of counsel whenever the party is represented as the Rule clearly contemplates that an avowal is required when counsel files the notice. See Rule 104(B) (“ ‘By signing and filing this notice of appeal, undersigned counsel avows ....’ ”) (emphasis added).

¶ 8 ADES next argues Mother's GAL lacked authority to file a notice of appeal on her behalf, making the notice ineffective. It contends that only a guardian appointed in a probate matter for a person adjudicated incapacitated by clear and convincing evidence can decide on the parent's behalf to file a notice of appeal.³ See A.R.S. § 14–5304(B) (authorizing appointment of guardian to make incapacitated person's decisions). Because Mother's GAL was not her guardian, and the court had not adjudicated Mother incapacitated, ADES asserts the GAL lacked authority to file the notice of appeal.

¶ 9 The GAL's role is “to protect the interest of ... an incompetent in a particular case before the court.” A.R.S. § 8–531(7). Although ADES does not try to define the limits of this role, it contends a GAL lacks the power to make decisions for the parent. ADES relies on Maricopa County Juvenile Action No. JD–6982, 186 Ariz. 354, 359, 922 P.2d 319, 324 (App.1996), in which this court concluded that, absent a judicial finding the parent is actually incompetent, and to ensure due process before a parent's decision-making right is infringed, which the court presumed attached, “a GAL's role [of protecting the parent's interests] must be limited to investigating the best interests of the parent and communicating those interests to the court.” See also Rule 40(C) (authorizing appointment of GAL to “conduct an investigation and report to the court” regarding parent's competency and need for protection). The court then held that the GAL's determinations of those best interests cannot trump the express wishes of the parent. No. JD–6982, 186 Ariz. at 359 & n. 5, 922 P.2d at 324 & n. 5. As in No. JD–6982, the court in this case did not take evidence regarding Mother's competency or expressly find her incapacitated or incompetent. Thus, we agree with ADES that the GAL's appointment did not authorize her to make Mother's decision for her whether to appeal by filing the notice of appeal.

¶ 10 Our analysis does not end there, however. Rule 40(c) also provides that “[t]he court shall conduct hearings and enter orders as determined to be necessary to protect the interests of the parent....” Upon direction by this court, the juvenile court conducted a hearing regarding various attempts to discern Mother's wishes regarding an appeal. Thereafter, the court exercised its Rule 40(c) power to authorize the GAL nunc pro tunc to file the notice of appeal. We disagree with ADES that the court lacked a meritorious reason for authorizing the GAL to file the notice of appeal. The court related its observations that because Mother seemed generally confused about the proceedings, as evidenced by her statement to the court that her children were in jail with her,⁴ she was not in a position to file a notice of appeal. Mother's counsel was unable to file the notice of appeal because she could not make the Rule 104(B) avowal due to her inability to discern Mother's wishes. Thus, had the court not authorized the GAL to file the notice of appeal, Mother's contention that the court erred by conducting the severance hearing while she was unable to meaningfully participate would have escaped appellate review through no fault of Mother. Our system of justice demands more, and the juvenile court properly exercised its authority under Rule 40(C) to ensure review.

II. Due process violation

¶ 11 Mother argues that, because she “was not competent to stand trial,” the court erred by proceeding with the severance hearing rather than staying the...