KATHERINE S. v. Foreman

• Decision Date: 30 September 1999
• Docket Number: No. 1 CA-SA 98-0328.,1 CA-SA 98-0328.
• Citation: 4 P.3d 426,197 Ariz. 371
• Parties: KATHERINE S., Petitioner, v. The Honorable John FOREMAN, Judge of the Superior Court of the State of Arizona, In and For the COUNTY OF MARICOPA, Respondent Judge, State of Arizona, Real Party in Interest.
• Court: Arizona Court of Appeals

4 P.3d 426

197 Ariz. 371

KATHERINE S., Petitioner, v. The Honorable John FOREMAN, Judge of the Superior Court of the State of Arizona, In and For the COUNTY OF MARICOPA, Respondent Judge, State of Arizona, Real Party in Interest.

No. -0328.

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

September 30, 1999.

Review Dismissed October 5, 2000.

Jeffrey M. Zurbriggen, P.C. by Jeffrey Zurbriggen, Tempe, for Petitioner.

Richard M. Romley, Maricopa County Attorney by Diane Gunnels Rowley, Deputy County Attorney, Richard Nothwehr, Deputy County Attorney, Rene Williams, Deputy County Attorney, Phoenix, for Real Party in Interest.

OPINION

KLEINSCHMIDT, Presiding Judge.

¶ 1 This special action challenges the constitutionality of Arizona Revised Statutes Annotated ("A.R.S.") section 8-235, the statute that gives the juvenile court the power to direct and control the behavior of any person whose conduct may be detrimental or harmful to a juvenile who is under the jurisdiction of the court. The petitioner, Katherine S., is the sister of a juvenile who had been adjudicated delinquent. The court entered certain orders directing and controlling Katherine's conduct, and she objected and filed this special action. We grant relief because the juvenile judge did not secure jurisdiction over Katherine and because he applied the statute in a manner that violated her right to notice, her right to remain silent, and her right to counsel. We further hold that section 8-235(B)(2), the part of the statute that allows the judge to order any person to do or refrain from doing anything that may be harmful or detrimental to a delinquent child or that may tend to defeat the orders of the court regarding a delinquent child or that may assist in or be necessary for the rehabilitation of such child, is unconstitutional because it is too vague to be enforceable. The statute fails to give notice of the acts that it prohibits, and it permits the juvenile judge to criminalize conduct on an ad hoc basis.¹

¶ 2 The statute reads as follows.

A. A parent or legal guardian of a person who is under eighteen years of age shall exercise reasonable care, supervision, protection and control over the parent's or legal guardian's minor child.

B. On petition of a party or on the court's own motion, the court may make an order directing, restraining or otherwise controlling the conduct of a person if:

1. An order or disposition of a delinquent, dependent or incorrigible child has been or is about to be made in a proceeding under this chapter.

2. The court finds that such conduct is or may be detrimental or harmful to the child, will tend to defeat the execution of an order or disposition made or to be made or will assist in or is necessary for the rehabilitation of the child.

3. Notice of the petition or motion and the grounds therefor and an opportunity to be heard thereon have been given to the person against whom the order is directed.

C. The court may invoke its contempt powers pursuant to [A.R.S.] § 8-248² to enforce any treatment, counseling, education or other restraining or protective order that applies to:

1. The child, the parents or guardian of the child or any other party before the court who is the subject of an order to participate in a counseling, treatment or education program or any other restraining or protective order.

2. The legal custodians or agencies, including agency personnel, that are ordered to provide treatment or services to the child, the child's family or any party named in the dispositional order.

D. The court may order a parent or guardian to pay the cost of any counseling, treatment or education program ordered pursuant to subsection B of this section.

E. If the court after notice and hearing finds that a person has failed to exercise reasonable care, supervision, protection and control of a minor pursuant to subsection A of this section or if the court holds a person in contempt for violating an order issued pursuant to this section, the court may immediately take one or more of the following actions:

1. Impose a fine of not more than one thousand dollars, plus any applicable surcharges and assessments.

2. Impose a term of incarceration in jail for a period of not more than thirty days.

3. Order the parents or guardian of the child to perform community service with their child.

F. If the court finds that the best interests of the child would be served thereby, in lieu of taking any action pursuant to subsection C of this section, the court may order the parent or guardian of a child to participate in a diversion program, approved by the supreme court, which requires the parent or guardian to perform community service or to attend and successfully complete a program of counseling, treatment or education. If the terms and conditions of the diversion order are successfully completed, the court shall dismiss its finding against the parents. If the court finds that the terms and conditions of the diversion order were not successfully completed it may take one or more of the actions specified in subsection D of this section.

G. Before a hearing that may result in incarceration for a person who is alleged to have violated a court order under this section, the court shall advise the person that the person has the right to be represented by counsel and that the court may appoint counsel if the court finds that the person is indigent.

A.R.S. § 8-235 (footnotes omitted).

¶ 3 The statute is adopted from section 53 of the Model Juvenile Court Act. 9A U.L.A. 89 (1998). There are very few cases that apply or discuss other statutes patterned after the Model Act, and none of these consider its constitutionality.³

¶ 4 The relevant facts are as follows. Katherine had at one time been adjudicated incorrigible and placed on probation. Her probation had been terminated. Her twin brother had also been adjudicated delinquent and had been ordered to appear before the juvenile drug court. The drug court monitors and provides services for juveniles who are on probation and who have drug abuse problems. The drug court judge ordered that no member of the family use drugs while the juvenile is in the drug court program.

¶ 5 A pipe for smoking marijuana was found in Katherine's brother's room, but the brother claimed that it belonged to Katherine. The record suggests that the brother's accusation was not made under oath. On its own motion, the court subpoenaed Katherine's mother and told her to bring Katherine to a drug court hearing. Nothing about the subpoena, except that it was issued under the caption in her brother's case, told Katherine why she was being ordered to appear in court.

¶ 6 At the hearing, Katherine was not represented by counsel, was not told that she had the right to counsel, and was not advised that she had the right to remain silent. In the course of a discussion between Katherine and the judge, Katherine denied that the pipe found in her brother's room was hers, but she did say that she had her own pipe. The court ordered Katherine not to use drugs while her brother was in drug court and ordered her to provide a urine specimen for drug testing. She was also ordered to return to drug court the following week.

¶ 7 It is unnecessary to recite in detail all that transpired thereafter. It is enough to say that Katherine made some appearances at drug court and sometimes failed to appear and that she tested positive for marijuana use on several occasions. At one point, the judge ordered Katherine to bring her boyfriend to court, but this was not pursued because the judge learned that there was an outstanding warrant for his arrest.

¶ 8 The juvenile judge eventually set a hearing to show cause why Katherine should not be held in contempt of court for her failure to abide by court orders and appointed counsel for her. Katherine failed to appear for the hearing, and she was eventually arrested on a bench warrant. On one occasion, in what we assume was an attempt to ensure that the court had jurisdiction over Katherine, the judge ordered the State to file a delinquency petition against her based on her disobedience of court orders. The State never complied, and the judge did not pursue the matter.⁴ After failing to show for another hearing, the judge issued a bench warrant for her arrest.

¶ 9 Katherine filed this special action challenging the validity of A.R.S. section 8-235. The juvenile judge issued a minute entry explaining the background of drug court, reciting the history of this case, and setting forth the authority on which he had relied.⁵ We stayed the enforcement of any juvenile court orders directed to Katherine in this case pending the resolution of the special action.

¶ 10 The petition for special action asserted that the juvenile court did not have subject matter jurisdiction over Katherine and challenged the statute on a number of constitutional grounds. The State responded, conceding that the juvenile court lacked jurisdiction to order Katherine to submit to urinalysis and attend drug court. It did not address the other issues raised in the petition. Following oral argument, we requested the State to respond to all the issues, and it has done so. Katherine has filed a reply.⁶

¶ 11 We accepted jurisdiction because Katherine does not have an equally plain, speedy, and adequate remedy by appeal, see In re Juvenile Action No. JT-295003, 126 Ariz. 409, 411, 616 P.2d 84, 86 (App.1980),

and because the constitutionality of A.R.S. section 8-235 is a matter of first impression and of statewide importance. See Soos v. Superior Court, 182 Ariz. 470, 472, 897 P.2d 1356, 1358 (App.1994).

¶ 12 Katherine argues that the juvenile court lacked subject matter jurisdiction over her because she did not engage in a delinquent act and because the State never filed a complaint, indictment, or information against her. The juvenile judge cited a Florida decision, In re Contempt of Elrod, 455 So.2d 1325 (Fla.App.1984), for the...