DANIEL Y. v. ARIZONA DEPT. OF ECONOMIC SEC.

• Court: Arizona Court of Appeals
• Writing for the Court: SNOW.
• Citation: DANIEL Y. v. ARIZONA DEPT. OF ECONOMIC SEC., 77 P.3d 55, 206 Ariz. 257 (Ariz. App. 2003)
• Decision Date: 02 October 2003
• Docket Number: No. 1 CA-JV 02-0121.,1 CA-JV 02-0121.
• Parties: DANIEL Y., Appellant, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY and Andrew Y., Appellees.

77 P.3d 55

206 Ariz. 257

DANIEL Y., Appellant, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY and Andrew Y., Appellees.

No. -0121.

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

October 2, 2003.

As Amended October 6, 2003.

Terry Goddard, Attorney General, By Stacy L. Shuman, Assistant Attorney General, Phoenix, Attorneys for Appellee/ADES.

Timbanard & Kamper LLP, By Thomas A. Vierling, Phoenix, Guardian ad Litem for Andrew Y.

Steven G. Clark, P.C., By Steven G. Clark, Phoenix, Attorneys for Appellant.

OPINION

SNOW, Judge.

¶ 1 Daniel Y. appeals from a juvenile court order severing his parental rights. For the following reasons, we vacate the severance order and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

¶ 2 In May 2000, Child Protective Services ("CPS") received a referral alleging that Daniel Y. and his wife had engaged in prolonged physical, mental and emotional abuse of Daniel Y.'s son, Andrew.¹ Because of the referral, Andrew was removed from Daniel Y.'s custody.

¶ 3 Andrew was found dependent in June 2000. At the same time, the juvenile court issued a no-contact order between Daniel Y. and Andrew, at least in part because Andrew feared retaliation for his claims of abuse. Daniel Y. and his wife were subsequently arrested and charged with nine counts of felony child abuse relating to their treatment of Andrew.²

¶ 4 While the CPS case plan initially called for family reunification, the plan changed to severance and adoption following further investigation of the abuse allegations and a recommendation by the Foster Care Review Board. CPS then filed a motion to terminate Daniel Y.'s parental rights, alleging that Andrew had been abused and neglected pursuant to Arizona Revised Statutes ("A.R.S.") section 8-533(B)(2) (2001) and that Andrew had been in an out-of-home placement for both nine and fifteen months pursuant to A.R.S. § 8-533(B)(7)(a) and (b) (2001).³

¶ 5 Daniel Y. initially retained his own counsel, Debra Brockway, to represent him in the dependency and severance proceedings. Brockway withdrew six months later, citing "strategic differences" between herself and Daniel Y. Next, Maximiliano Garcia entered a notice of appearance on behalf of Appellant. While no motion to withdraw appears in the record before us, the juvenile court noted in a minute entry some months later that Garcia had failed to appear for a hearing.⁴ The court then appointed Jonathan Schubert as counsel for Daniel Y. pursuant to the provisions of A.R.S. § 8-221(B) (Supp.2002).⁵

¶ 6 Five months later, Schubert filed a motion to withdraw citing irreconcilable differences. When granting Schubert's motion, the court cautioned Daniel Y. by minute entry, stating:

[Appellant] is entitled to be represented by an attorney. However, he is not entitled to representation by an attorney of his choice. This court would find it very difficult to grant any other motion to withdraw filed by an attorney or request for a new attorney filed by [Appellant].

The juvenile court subsequently appointed Daniel Terrell to represent Daniel Y.⁶ Almost two months later, and only two weeks prior to the severance hearing, Terrell filed a motion to withdraw that also alleged irreconcilable differences. Following an ex parte in camera hearing with Terrell, the court granted the motion, stating:

The Court will proceed with the trial date as previously scheduled. [Appellant] will need to hire either private counsel or represent himself as this is the second time that he has caused counsel to be relieved. The Court also notes that [the Court's] minute entry of 01-08-02 warned [Appellant] that any subsequent motion to withdraw would not be lightly granted or the Court would be reluctant to appoint a new attorney for the father. The Court is not appointing another attorney at this time.

Following Terrell's withdrawal, Terrell sent a letter to Daniel Y. informing him of the upcoming trial dates and telling him to call Terrell to procure a copy of the case file.⁷

¶ 7 When the severance trial began on April 10, 2002, Daniel Y. announced his appearance, adding, "here without counsel, cannot afford an attorney." When asked if he was ready to proceed, he stated, "Your Honor, I have no counsel. I do not know—I can't answer that question." The court responded:

Well, you have no counsel because the Court permitted your last counsel, Mr. Terrell, to withdraw. And the Court before that permitted the counsel before that to withdraw. And I had decided not to appoint a third attorney for you because of the nature of the conduct that required the previous two counsel to be permitted to withdraw.

So you do need to answer the question. Are you going to proceed today defending your parental rights or not?

Daniel Y. replied, "Without the advice of counsel, Your Honor, I don't know how to answer." The court responded, "All right. Then we'll proceed."

¶ 8 The State called Daniel Y. as its first witness, but he refused to testify without the advice of counsel. Following several recesses, and a contempt warning by the court, the court appointed Lon Taubman to represent Daniel Y. "solely on the issue of whether [he] is subject to contempt at this time for refusing to be sworn in and testify when called as a witness for the [State]."

¶ 9 Taubman advised the court that his client had a rational basis for his refusal to testify, arguing:

[Appellant] is currently charged criminally with either abuse or neglect. He's been advised by criminal counsel not to incriminate himself at the dependency [hearing]. He's been advised by criminal counsel not even to submit to psychological evaluations, because that could be held against him.... He's afraid that if he says anything it's going to be held against him in the criminal matter.

¶ 10 Taubman remained in the courtroom while Daniel Y. testified as to his name, address, that Andrew and Danielle were his children, and that the children's biological mother was deceased. Taubman was then excused from further service and left the courtroom. The State continued to present witnesses but Daniel Y. did not conduct any cross-examination. At the close of the State's evidence, Daniel Y. stated he had no witnesses to present, and "[n]ot having counsel," had no closing argument. The court took the matter under advisement. Following the hearing, the juvenile court issued an order terminating Daniel Y.'s parental rights.

DISCUSSION

¶ 11 On appeal, Daniel Y. argues that the juvenile court's refusal to provide him with counsel at the severance hearing violated his right to due process.

¶ 12 By statute, Arizona mandates the appointment of counsel for indigent parents involved in severance proceedings. A.R.S. § 8-221(B) (Supp.2002) ("If a ... parent... is found to be indigent and entitled to counsel, the juvenile court shall appoint an attorney to represent the person." (emphasis added)); Denise H. v. Ariz. Dep't of Econ. Sec., 193 Ariz. 257, 259, ¶ 6, 972 P.2d 241, 243 (App.1998) ("An indigent parent against whom a [severance] petition has been filed has the right to appointed counsel."). Furthermore, the failure to allow counsel to effectively participate in severance proceedings is reversible error. As the Arizona Supreme Court has stated:

[T]he denial of the right to effective participation of counsel constitutes a denial of due process of law so gross as to lack a necessary attribute of a judicial determination. We hold that an order or judgment of a Superior Court which is predicated on a hearing in which a parent is denied the opportunity to be heard by counsel if requested is void.

Ariz. State Dep't of Pub. Welfare v. Barlow, 80 Ariz. 249, 253, 296 P.2d 298, 300 (1956); Pima County Juv. Action No. J-64016, 127 Ariz. 296, 298, 619 P.2d 1073, 1075 (App.1980) (reversible error for court to proceed with dependency hearing after determining mother was entitled to appointment of counsel, but before actually appointing counsel).

¶ 13 The State does not argue that Daniel Y. does not have a right to counsel. Rather, it argues that he either waived or forfeited his right to counsel because he was appointed counsel twice and both appointed counsel withdrew as a result of irreconcilable differences with him. Under such circumstances, the State argues, the juvenile court is under no obligation to appoint additional counsel. The State further argues that because a severance hearing is a civil proceeding and because Daniel Y.'s right to counsel does not arise from the Sixth Amendment, he can and did waive his right to counsel more easily than he might have done under the Sixth Amendment.

¶ 14 We have previously determined that a parent's right to counsel in severance proceedings is not co-extensive with a criminal defendant's right to counsel under the Sixth Amendment. See Denise H., 193 Ariz. at 257, ¶¶ 5-7, 972 P.2d at 241 (unlike criminal defendant, parent in a severance proceeding is not entitled to a fundamental error review of the record pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967)). That is not to say, however, that the right to counsel in a severance proceeding is not of constitutional dimension. We have indicated that it is. See id. at 259, ¶ 6, 972 P.2d at 243 ("An indigent parent against whom a [severance] petition has been filed has the right to appointed counsel, but that right is afforded by statute, [A.R.S. § 8-221(B) ], and the Due Process Clause ... not the Sixth Amendment." (internal citations omitted)); J-64016, 127 Ariz. at 298, 619 P.2d at 1075 (a parent's statutory right to counsel "is legislative recognition that due process requires appointment of counsel in a dependency proceeding where the parent faces losing custody of a child.").⁸

¶ 15 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...