J.A.R. v. Superior Court In and For County of Maricopa

• Decision Date: 28 June 1994
• Docket Number: No. 1,CA-SA,1
• Citation: 877 P.2d 1323,179 Ariz. 267
• Parties: J.A.R., Petitioner, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF MARICOPA, The Honorable J. Kenneth Mangum, a judge thereof, Respondent Judge, E.C.G. and D.R., Real Parties in Interest. 94-0089.
• Court: Arizona Court of Appeals

Page 1323

877 P.2d 1323

179 Ariz. 267

J.A.R., Petitioner, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF MARICOPA, The Honorable J. Kenneth Mangum, a judge thereof, Respondent Judge E.C.G. and D.R., Real Parties in Interest.

No. 1 CA-SA 94-0089.

Court of Appeals of Arizona Division 1.

June 28, 1994.

[179 Ariz. 269] Bruce W. Griffin, Phoenix, for petitioner.

David W. Curtis, Phoenix, for real party in interest E.C.G.

Jones, Skelton and Hochuli by A. Melvin McDonald, Phoenix, for real party in interest D.R.

Arizona Advocates for Children by David P. Arrow, Francis G. Fanning, Nancy Opre Logan and Margaret R. Tinsley, Tempe, for amicus curiae.

OPINION

JACOBSON, Judge.

This special action arises from an order denying a minor child's motions to intervene and to be represented by counsel of his choice in his parents' domestic relation custody modification action. The following issues are raised:

1. Did the trial court abuse its discretion in denying the child's motion to intervene?

2. Did the trial court abuse its discretion under A.R.S. § 25-321 in denying the child's request for independent counsel?

3. Does the child have a right to independent counsel of his own choice, over the objection to that representation by one of his parents?

FACTUAL AND PROCEDURAL BACKGROUND

Petitioner J.A.R. (the child) is the seven and a half-year old son of the real parties in interest, E.C.G. (mother) and D.R. (father), in the underlying custody modification proceeding.

On April 5, 1993, the trial court ordered joint custody of the child to his parents on a "week-on and week-off" shared custody schedule. In so doing, the court observed:

This case, perhaps more than any other which this Division has reviewed in the last nine months, presents a striking amalgam of contradictory qualities and shortcomings. Both parties love their son and have gone to extraordinary efforts to be able to parent him, including participating in several kidnappings and also in recovering the son through the use of a private army.

We too note that the abbreviated, partial record before this court is replete with substantial evidence of the parties' ongoing hostile struggle for custody of this child since his birth. ¹

Less than six months after the joint custody order, the mother filed a petition for modification of child custody, requesting that the court hear the petition less than one year after entry of the custody order on the basis that "there is reason to believe the child's present environment may endanger seriously his physical, mental, moral or emotional health." See A.R.S. § 25-332(L). The mother requested that the court modify custody by appointing her as his primary residential parent, and allow her to move with the child to Puerto Vallarta, Mexico, with visitation rights to the father.

The father responded and cross-petitioned for modification of custody, requesting the court to reinstate full custody in him with visitation rights to the mother, because of the "harmful negative changes which have occurred [to the child] since joint custody was awarded ...," attributable to the mother's "direct hostile acts designed to undermine, embarrass and destroy the development of her minor son...."

At some point, the mother requested appointment of an attorney for the child, to which the father did not initially object. On December 16, 1993, the court issued the following minute entry ruling:

The Court has reviewed the Motion for Appointment of Attorney for the Child. No opposition has been received. It appears appropriate that the parties split the fees in proportion to their income as determined at the last hearing.

IT IS ORDERED that the parties shall submit names by January 4, 1994, failing which the Court will appoint an attorney.

On December 20, 1993, the mother filed a "Petition for Emergency Hearing re: Appointment of Attorney for Minor Child," in which she alleged that the child had been seen by a "court approved psychiatrist/psychologist" who strongly urged that the court appoint independent counsel for the child, based on his belief that the child is "mature and competent enough to have input about his custody, visitation, and support," and based on the child's request to the doctor that he be allowed to have his own attorney.

At the hearing on this motion on January 7, 1994, the father's attorney objected on the grounds that ultimately the entire cost of separate counsel would be borne by the father and that, in any event, separate counsel would not add anything to the proceedings. The mother responded by pointing out that the court would benefit from an objective view, without influence by either party, in order to find the best interests of the child. When the court subsequently ruled, the following conversation took place among the parties and the court:

THE COURT: Okay. With respect to the attorney for the son, I will deny that request. I think the cost issue is an issue and the--I think that it's somewhat duplicative of the role that a psychologist would be playing.

[THE MOTHER:] Your Honor, this child has been requesting--he has begged me to get his own attorney for him so he's not torn between the two of us.

THE COURT: I appreciate that, but I guess he didn't come up with it of his own idea.

[THE MOTHER:] No. He asked what his alternatives were, and I said you have both parents in there pitching for you and you--or you have the opportunity to have somebody represent you. Okay. And I told him he could have somebody represent him if the court thought it was a good idea.

THE COURT: Okay. Well, you can tell him that I think it's not a good idea in this case.

[THE MOTHER:] Okay. Even if one of the parties decides to pay for it?

THE COURT: If you can pay for it, then, there's no opposition.

[THE MOTHER:] Okay. If I can find a pro bono lawyer to do this, can I do this?

THE COURT: Get a telephone conversation between the three of us, and we'll resolve it.

[THE MOTHER:] Got it.

[FATHER'S COUNSEL:] Your Honor, ... if there's going to be a court-appointed lawyer, I also want to have a voice in it to know who it is.

THE COURT: Do you understand that he can object to somebody that he thinks is not impartial and so--.... And you need to be sure that you can convince [father's counsel] that whoever you obtain is not tainted.

[THE MOTHER:] Okay.

(Emphasis added.)

On February 25, 1994, attorney Bruce W. Griffin filed a Notice of Appearance as retained attorney for the child. The father's counsel immediately objected, stating that he was not notified of the retention of counsel by the child, and that such action was in violation of the court's oral denial of the motion for appointment of counsel on January 7, 1994. The objection included an allegation that Mr. Griffin's retention was "nothing more than a sham by [the mother] to have a second voice at the [change of custody] hearing." On behalf of the child, attorney Griffin filed a response to the father's objection to notice of appearance, as well as a "Motion for Court Order Recognizing Minor Child's Counsel." In that pleading, he argued that the court's oral ruling on January 7 referred only to the court's restrictions on a court-appointed attorney, and did not preclude the child's private retention of his own counsel.

Attorney Griffin gave the following account of how he was hired to represent the child in this matter:

Attorney Griffin was initially approached in early February of 1994 by [the mother] of the minor child, who requested that he represent her minor child.... Attorney Griffin was reluctant because of the age of the child and the predictable inference by [the father] that he would be representing [the mother] and not the minor child. [The mother] gave attorney Griffin her account of the facts and he agreed to consider the representation. Subsequently, prior to agreeing to represent the minor child, attorney Griffin spoke with [the mother] and the minor child, with the minor child alone, and with psychologist Joseph Parham, Ph.D. who had met on several occasions with the minor child. Based in large part on the urging of Dr. Parham that the child needed representation, attorney Griffin agreed to represent the minor child.

Attorney Griffin is on the court approved list to provide representation by appointment for indigent persons, both children and adults, in the Juvenile Court. He has also represented juveniles as Petitioners in private dependency actions in that court. Based upon the fact that payment to appointed counsel by the Juvenile Court is $40.00 per hour, attorney Griffin agreed to represent the minor child for that amount. Attorney Griffin was retained on behalf of the minor child by [the] maternal grandmother ... who paid him a retainer of $400.00 and agreed to pay all costs and all future fees billed at the rate of $40.00 per hour. [The mother] was informed by attorney Griffin that, following his retention by the minor child, he would no longer correspond with her except as necessary in her capacity as a party. He further informed [the mother] that it would be in her best interests to retain her own counsel in which case attorney Griffin would not communicate with her at all. Attorney Griffin advised [the grandmother] and the minor child, and both agreed, that he would represent the interests of [the child] and not the interests of either [the grandmother] or her daughter. Since his retention as the minor child's attorney on February 5, 1994, attorney Griffin has had no contact with [the grandmother]. Subsequent to the retention, [the grandmother] was contacted once by attorney Griffin's legal assistant ..., in order to inform her that the representation of her grandson would likely be difficult and time consuming and to obtain her reassurance that she would compensate attorney Griffin for his time spent on behalf of the minor child without regard to the amount of time ultimately required to effectuate the...