Donald W., Sr. v. Ariz. Dept. of Econ. Sec.
| Decision Date | 24 May 2007 |
| Docket Number | No. 1 CA-JV 06-0088.,1 CA-JV 06-0088. |
| Citation | 159 P.3d 65,215 Ariz. 199 |
| Parties | DONALD W., SR. and Robin C., Appellants, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY and Donald W., Jr., Appellees. |
| Court | Arizona Court of Appeals |
Terry Goddard, Arizona Attorney General By Kathleen E. Skinner, Assistant Attorney General, Mesa, Attorneys for Appellees.
Paul J. Mattern, Attorney at Law, Phoenix, Attorney for Appellant Father.
John A. Cicala, Attorney at Law, Yuma, Attorney for Appellant Mother.
¶ 1 In this appeal, we determine whether parents have the right to effective assistance of appointed counsel in parental severance hearings and, if so, under which standard we determine whether counsel was ineffective. We confirm prior Arizona law holding that ineffective assistance of appointed counsel may constitute reversible error in the severance context. We further hold that for assistance of appointed counsel to withstand constitutional scrutiny, it must satisfy standards of fundamental fairness.
¶ 2 For the reasons stated below, we conclude that Appellant-Mother Robin C. ("Mother") did not receive effective assistance of counsel. Accordingly, we affirm the severance order as to Appellant-Father Donald W., Sr. ("Father"), vacate the severance order as to Mother, and remand for further proceedings consistent with this opinion.
¶ 3 In April 2005, the Arizona Department of Economic Security ("ADES") filed a petition alleging Appellee Donald W., Jr. ("Child")—then eighteen months old—was dependent as to Mother and Father. According to the petition, Mother was arrested on April 25, 2005, and Father was admitted to the hospital on the same day.1 The petition further alleged that Mother engaged in substance abuse, that the home was unfit, and that Father and Mother engaged in domestic violence. ADES concurrently filed a temporary custody notice, stating that there was no alternate caregiver present to care for Child.
¶ 4 After mediation in July 2005, Mother pled no contest to the allegations of the dependency petition and agreed to abide by the CPS case plan. After a trial in August 2005, the court found Child dependent as to Father.
¶ 5 Father underwent a psychological evaluation in January 2006. The psychologist reported that Father had more than sufficient ability to understand any directions imposed by the court or by CPS. The psychologist, however, characterized Father as conflicted and avoidant, noting that he scored highest on scales measuring avoidant and negativistic personality characteristics. According to the psychologist, these characteristics were likely to result in conflict with significant others. The psychologist described a cyclical pattern in Father's behavior in which he would become contrite and express remorse, apologize and overcontrol his actions, but then subsequently act out again.
¶ 6 In February 2006, ADES moved to terminate Mother's and Father's parent-child relationships with Child. In the motion, ADES alleged Child had been in an out-of-home placement for nine months or longer and Mother and Father had substantially neglected or willfully refused to remedy the circumstances leading to the out-of-home placement. CPS filed a report with the juvenile court stating that, while Father had undergone a psychological evaluation in January, both Mother and Father were non-compliant with services. A February report of the Foster Care Review Board recommended that Child be placed in an adoptive placement.2
¶ 7 Mother was not present at a permanency planning hearing in March 2006. At the beginning of that hearing, the following exchange took place:
The Court: Mr. Crimmins, you're here for the mother?
Mr. Crimmins: Yes, your honor. I'm informed that she is around because she does call the policemen occasionally. She's the mother who was—how do I say it politely though—
Ms. Avila-Taylor:3 Under the influence.
Mr. Crimmins: Not quite with us at the last hearing . . .
The Court: The one I questioned her sobriety?
Mr. Crimmins: Yes, you did, Judge, and then you ordered that she go get tested. Apparently she didn't show. I don't understand why.
The parties then proceeded to schedule a contested severance hearing. ADES noted it did not think this was a complicated case and that no more than an hour was necessary. CPS also informed the court that an adoptive placement had been located.
¶ 8 The contested severance hearing was conducted in late March and early April 2006. ADES presented one witness, the case manager. The case manager testified that Mother and Father had been offered random drug testing, psychological evaluation, parenting classes, visitation, and a housing subsidy. She testified that Father had started to engage in the services but then was incarcerated, and that he did not maintain contact with Child. She also testified Mother had been non-compliant, and, while she did have visits with the child, she did not consistently attend them, and that throughout the case it had been difficult to maintain contact with her, as she resided inconsistently at the address she had provided. The case manager further testified that the domestic violence between Mother and Father had continued throughout the case. Finally, the case manager testified that the child was in a prospective adoptive placement, was adoptable, and it was in the child's best interests to sever his existing parent-child relationships. Counsel for Mother asked what the alleged grounds for termination were before he cross-examined the case manager about a referral for substance abuse counseling.
¶ 9 Mother testified on her own behalf. Mother testified that she had undergone an assessment, a psychological evaluation, and counseling during February 2006, and that those services were ongoing. During direct examination, the following exchange occurred between Mother and her counsel:
Q Did you call me before the hearing and ask me to subpoena anybody?
A No. I didn't. I didn't understand that I was supposed to subpoena stuff. I don't understand court things at all.
Q When is the last time you called me at my office?
A I called you—messages twice last week. I haven't talked to you, personally, until today.
Q Okay. I don't have any record of any messages last week. I keep a permanent log of all messages.
A And I talked to your secretary last week.
Q And that could be why because she doesn't necessarily write that down.
A I did talk to her, and she was the one that told me to call the court's secretary and find out today was court; and, then, yesterday, Arsinia called, and I talked to her yesterday about five, 5:30.
Q You were in court last, I believe, in December, when the judge ordered that your rights be—a petition to sever your rights be filed?
A Yes, I was, sir.
Q And you didn't know that that was going to happen?
A I did know, but I didn't really understand until I started investigating it more on the computer about what exactly was going on.
* * *
Q Before court, I asked you if you were doing U.A.'s and you indicated you have done 23 of them?
A Yes, I have, sir, and I have a box of them that's out in my storage that I should have went through before today, but I've got the copies of them in the file at my storage.
Q The judge indicated before court to me and the other attorneys that he would give you an opportunity before he ruled to provide those documents?
A All right.
Q Do you understand you'll have an obligation to provide them, and you can give them to me or give them to the court?
A Yes, sir, I do.
* * *
Q You've had three counseling sessions and two evaluation sessions?
A And two evaluations; and, then, they wait two weeks for your appointment, and you got to go two weeks again, and two weeks again.
Excuse me. I'm sorry
Q You need to go there tomorrow and get them to give you a record of that and provide it to me.
A Okay.
Q You understand that?
A Yes, sir, I do.
Q If you don't do that tomorrow, the judge isn't going to listen to that.
A All right.
Q —So if I don't see it, I'll presume it doesn't exist—
A Okay.
Q —Well, more importantly, the judge will presume that.
ADES, Father, and the court questioned Mother.
¶ 10 Father also testified on his own behalf. He stated that, while in prison, he had completed a parenting class and an anger management class.
¶ 11 After all witnesses had testified, counsel for Mother requested another hearing before the court ruled. ADES argued that, regardless of the veracity of Mother's testimony, the grounds for severance had been met, as Mother had done nothing between April and January of the prior year. The court scheduled a status hearing for the following week, and informed Mother she could present her documentation through counsel, and that he intended to rule at that time.
¶ 12 Mother did not appear at the status hearing. Instead, she called the court forty-five minutes before the hearing to request a continuance, but did not give a reason. The court declined to continue the hearing and told her she needed to come to court for the hearing. When she did not appear at the hearing, the court inquired about her contact with counsel. Counsel responded:
Your Honor, [Mother] has not contacted me or my office since leaving court. We left it that she said she had some documentation that might impact the court's ruling. She has not provided that to me. Although I do understand from CPS they did check it from Ms. Johnson, that she did do an assessment at Excel I think in January. But she did do that, but we have no other documentation of anything.
The Court: All right. Let me hear from—
Mr. Crimmins: Also, [Mother], I just checked my messages again, has not contacted my office all day about a continuance or for any other purpose.
The Court: Ms. Taylor?
Ms. Taylor: Judge, we did try to verify what—some of what mom said. We do know that ...
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