Lana A. v. Woodburn

• Decision Date: 04 August 2005
• Docket Number: No. 1 CA-SA 05-0089.,No. 1 CA-SA 05-0090.,1 CA-SA 05-0089.,1 CA-SA 05-0090.
• Citation: 116 P.3d 1222,211 Ariz. 62
• Parties: LANA A., Petitioner, v. The Honorable R. Jeffrey WOODBURN, Commissioner of the Superior Court of the State of Arizona, in and for the County of Maricopa, Commissioner, State of Arizona, Real Party in Interest. Marie E., Juvenile Petitioner, v. The Honorable Linda H. Miles, 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 Supreme Court

116 P.3d 1222

211 Ariz. 62

LANA A., Petitioner, v. The Honorable R. Jeffrey WOODBURN, Commissioner of the Superior Court of the State of Arizona, in and for the County of Maricopa, Commissioner, State of Arizona, Real Party in Interest.

Marie E., Juvenile Petitioner, v. The Honorable Linda H. Miles, 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. 1 CA-SA 05-0089.

No. 1 CA-SA 05-0090.

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

August 4, 2005.

Office of the Maricopa County Public Defender By Helene F. Abrams and Suzanne W. Sanchez, Phoenix, Attorneys for Petitioners.

Andrew P Thomas, Maricopa County Attorney, By Linda Van Brakel, Phoenix, Attorney for Real Party in Interest.

OPINION

KESSLER, Presiding Judge.

¶ 1 Petitioners challenge the juvenile court's orders subjecting them to detention pending disposition on their probation revocation hearings in these consolidated petitions for special action. Petitioners argue they cannot be subject to detention because they were adjudicated incorrigible without the benefit of counsel. We filed an order accepting jurisdiction and stating that a written decision would follow. This is that decision. For the reasons stated below, we hold that Petitioners were detained in error and cannot be subject to further detention based on their original incorrigibility adjudications.

FACTUAL AND PROCEDURAL HISTORY

Lana A.

¶ 2 The State filed a truancy citation against Lana A. ("Lana"), alleging that she had been habitually truant. At an advisory hearing on the citation, the Commissioner informed Lana that, upon entering an admission of the allegations, she would waive her rights to remain silent and to have a hearing at which she would be presumed innocent and be able to cross-examine the State's witnesses. The Commissioner further informed Lana that upon her admission he could order her detained pending disposition on the truancy charges. The Commissioner, however, did not inform her of a right to counsel, nor did he appoint counsel for her. Lana did not hire an attorney to represent her in her incorrigibility hearing. Lana admitted the charges and the Commissioner adjudicated her incorrigible. The Commissioner proceeded to disposition immediately and placed Lana on summary probation, releasing her to the physical custody of her mother.

¶ 3 The State subsequently filed a petition to revoke Lana's probation, alleging that she had violated the terms of her probation. Lana was represented by counsel at the violation of probation hearings. At the initial violation of probation hearing, the court ordered her detained, finding it contrary to her welfare to remain in her mother's custody. She was released to the custody of the Department of Economic Security seven days later, and then to her grandmother's custody. After admitting to having violated the terms of her probation Lana was reinstated to probation, and the court issued an order containing a written warning that she could be detained if she violated the terms of her probation.

¶ 4 The State filed a second petition to revoke Lana's probation alleging further violations of the terms of her probation. At the violation of probation hearing, Lana was represented by counsel. She admitted to having violated the terms of her probation, and was adjudicated in violation of her probation. The court released her pursuant to the terms of a written release order, which contained a warning that failure to abide by the terms of the order could result in revocation of release. During a subsequent hearing, at which Lana was represented by counsel, the court ordered her detained for violating the terms of her release. It appears from the record that she was held in detention until her disposition hearing four weeks later, at which time she was released subject to another order warning her she could be detained if she violated the terms of her probation.

Marie E.

¶ 5 The State filed a citation against Marie E. ("Marie"), alleging a curfew violation. At the advisory hearing, the court informed Marie she had the right to contest the citation at trial, at which time she could hire an attorney to represent her, but she was not entitled to a court-appointed attorney. Marie admitted to the curfew violation, and was adjudicated incorrigible. The court placed her on standard probation and released her to her mother's physical custody. Marie was not represented by counsel at this hearing.

¶ 6 The State subsequently filed a petition to revoke Marie's probation. At the probation revocation hearing, Marie was represented by counsel. She admitted to having violated the terms of her probation, and was released pending the disposition hearing. The court later revoked Marie's release status and issued a temporary custody warrant over the objection of Marie's attorney. At Marie's scheduled disposition hearing three weeks later, the court quashed the warrant and ordered Marie detained pending a continued disposition hearing later that day. At the continued disposition hearing, Marie informed the court that she no longer wished to live with her mother. The court found it contrary to Marie's welfare to remain in her parents' custody and ordered her detained pending her next hearing. The court conducted a probable cause hearing two days later, ordering Marie detained pending her next hearing. At a violation hearing five days later, the court ordered Marie detained until there was an opening for her in a 28-day substance abuse program. Marie was represented by counsel at all proceedings following the State's petition to revoke probation. Both parties concede that Marie was released after the disposition hearing. However, according to Marie, it is the court's position that she may be detained in the course of future probation revocation proceedings.

Discussion

¶ 7 The issue presented is whether a juvenile may be subject to predisposition detention when the juvenile was not afforded the right to counsel at her initial incorrigibility hearing. We hold that Petitioners cannot be detained because they must be afforded the right to counsel at any hearing that may result in their detention, including the initial incorrigibility hearing.¹

Jurisdiction

¶ 8 Special action jurisdiction is appropriate where there is no plain, speedy, or adequate remedy on appeal. Ariz. R.P. Spec. Act. 1(a). Typically a juvenile will challenge the terms of detention after the juvenile court issues a final disposition order. A.R.S. § 8-235(A) (1999). However, Petitioners in these consolidated special actions challenge orders subjecting them to detention pending the disposition hearings in their probation revocation proceedings. There is not an equally adequate avenue of review for predisposition detention orders. Moreover, the issue presented in this case involves the authority of the court to detain juveniles after incorrigibility proceedings at which they did not enjoy the right to counsel. Because issues dealing with predisposition detention of incorrigible children have "substantial importance and will continuously affect a large number of juveniles," we accept jurisdiction. JV-130549 v.Super. Ct., 178 Ariz. 211, 212, 871 P.2d 758, 759 (App.1994)(internal quotes omitted). See also Haas v. Colosi, 202 Ariz. 56, 57, ¶ 2, 40 P.3d 1249, 1250 (App.2002) (acceptance of special action jurisdiction in case addressing whether appointed counsel can withdraw from incorrigibility proceedings is appropriate because of the large number of juveniles alleged to be incorrigible).

Mootness

¶9 This Court is not bound by the case or controversy requirements of the United States Constitution. Fraternal Order of Police Lodge 2 v. Phoenix Employee Relations Bd., 133 Ariz. 126, 127, 650 P.2d 428, 429 (1982). However, as a policy of judicial restraint, we will not address moot or abstract questions. Id. We will make an exception to this policy, however, for questions of public importance and matters that are capable of repetition yet evading review. Id.

¶ 10 Petitioners have been released from detention and are therefore no longer deprived of their liberty. However, they are still on probation and subject to detention. Thus, the issue is not moot. Alternatively, since pretrial detention is necessarily brief, Ariz. R.P. Juv. Ct. 23(C), (H), 25(B)(1), 28(B)(1), and 29(B)(1), this issue is likely to recur without the possibility of appellate review. JV-502820 v.Super. Ct., 181 Ariz. 243, 246, 889 P.2d 36, 39 (App.1995). Moreover, whether the courts detained Petitioners in excess of their authority is a question of public importance. We will therefore address Petitioners' claims despite the fact they have been released from detention.

Analysis

¶ 11 A juvenile defendant has the right to an attorney in proceedings "that may result in detention." A.R.S. § 8-221(A) (1999). See also Ariz. R.P. Juv. Ct. 10(A) ("[t]he juvenile has the right to be represented by counsel in all delinquency and incorrigibility proceedings as provided by law."). Detention in this context is defined as the "temporary confinement of a juvenile who requires secure care in a physically restricting facility that is completely surrounded by a locked and physically secure barrier with restricted ingress and egress for the protection of the juvenile or the community pending court disposition or as a condition of probation." A.R.S. § 8-201(14) (1998).

¶ 12 The court has the authority to detain juveniles who have been adjudicated incorrigible pending final disposition hearings. A.R.S. § 8-303(B)(1) (1998) (child shall be taken into custody on order of juvenile court); JV-130549, 178 Ariz. at 213-14, 871 P.2d at 760-61; Ariz. R.P. Juv. Ct. 23(D), 28(B)(1), 29(B)(1) and 30(B)(1)(a) (permitting detention of juvenile pending disposition on incorrigibility and setting time limits for hearings when child is in detention). See...