Maricopa County, Juvenile Action No. JV-508488, Matter of

• Decision Date: 18 April 1996
• Docket Number: No. 1,CA-JV,JV-508488,1
• Parties: In the Matter of the Appeal in MARICOPA COUNTY, JUVENILE ACTION NO.95-0104.
• Court: Arizona Court of Appeals

Page 1250

915 P.2d 1250

185 Ariz. 295

In the Matter of the Appeal in MARICOPA COUNTY, JUVENILE ACTION NO. JV-508488.

No. 1 CA-JV 95-0104.

Court of Appeals of Arizona,

Division 1, Department A.

April 18, 1996.

[185 Ariz. 296] Dean W. Trebesch, Maricopa County Public Defender by Susan G. White, Deputy Public Defender, and Amanda McGee, Phoenix, for Appellant Juvenile.

Richard M. Romley, Maricopa County Attorney by Erica Bianchi-Jones, Deputy County Attorney, Mesa, for the State.

OPINION

CONTRERAS, Presiding Judge.

The juvenile appeals from the revocation of his probation for failure to attend Valley Vocational Services Day Support Programming as orally directed by his probation officer. The issue presented is whether this failure constituted a violation of the written term of probation that the juvenile "attend school as required by law," and, if not, whether the oral direction to attend Valley Vocational was required to be in writing to constitute a basis for probation revocation. This question requires us to examine whether to apply the requirements of Rule 27.7(c), Arizona Rules of Criminal Procedure, and the case law interpreting those requirements, to juvenile probation revocation proceedings.

FACTS AND PROCEDURAL BACKGROUND

On January 11, 1994, at age 12, the juvenile was adjudicated incorrigible on the ground of habitual truancy on "regular school days with classes being held, in violation of A.R.S. § 8-201(6)(13) and 8-241." He was placed on probation, and in accordance with the written terms and conditions of probation was ordered to "attend school as required by law," pay a monthly probation fee, and participate in counseling as directed by his probation officer.

On April 6, 1994, he admitted to violating the terms of probation by his truancy from school, and the juvenile court ordered him continued on probation, with additional counseling. On February 21, 1995, the juvenile again admitted to truancy as a violation of his probation. His probation officer requested that the juvenile be placed in the "Valley Vocational Evening ¹ Support Program," effective March 20, 1995, for a period not to exceed six months. The court granted this request, and reinstated the juvenile's probation, again ordering, as term number 9, that the juvenile "attend school as required by law," and complete 30 hours of unpaid community work.

The juvenile, who had been enrolled at Fees Junior High School in Tempe, was placed in Valley Vocational Services, effective March 20, 1995. On June 27, 1995, the probation officer filed a petition to revoke probation on the basis that, "on or about the 19th day of June, 1995, [the juvenile] violated term number 9 of the terms of probation as imposed on April 3, 1995 ..., by failing to attend school at Valley Vocational, in violation of A.R.S. §§ 8-201 and 8-241(A)(2)(b)." At the time of the alleged violation, June 19, 1995, Fees Junior High School was not in session.

Based on the probation officer's recommendation, the juvenile court terminated the juvenile's placement at Valley Vocational Services effective June 19, 1995. At the advisory hearing, the court did not find probable cause that the juvenile committed the offense alleged in the petition, and ordered the juvenile released to the custody of his mother, subject to conditions pending the adjudication hearing, including, "[e]nroll in and attend school when school is in session."

At the adjudication hearing, the juvenile's current probation officer testified that he had reviewed the terms of probation with the juvenile on June 26, 1995, a week after the alleged violation, and that the juvenile "was aware that he had needed to attend Valley Vocational." He had no documentation that this term had been reviewed by his previous probation officer with the juvenile prior to the date of the alleged violation. The probation officer also testified that the juvenile was given credit for community service based on his attendance at Valley Vocational, and was paid $1.00 a day when attending. On cross-examination, the probation officer admitted that Fees Junior High School was not in session on June 19, the date of the alleged violation.

The juvenile's mother testified that she was present when the previous probation officer reviewed the terms of probation with the juvenile on April 3, 1995:

Q. And do you remember [the probation officer] telling [the juvenile] that he had to go to school as part of his terms and conditions?

A. Yes.

Q. Did she tell you where he was going to school?

A. Yes.

Q. Where was that?

A. Fees.

Q. Did she talk about Valley Vocational with him?

A. Yes, she did.

Q. What did she tell you--him about Valley Vocational?

A. That he had to attend.

His mother also testified that the juvenile was currently enrolled in Fees Junior High School, and that Fees was not in session during the summer.

The site manager at Valley Vocational Services testified that the juvenile was enrolled in that program from March 20, 1995, to June 19, 1995, when he was terminated for "poor attendance."

At the close of evidence, the juvenile's counsel moved for a directed verdict, and the following discussion ensued:

[JUVENILE'S COUNSEL]: I make a motion for a directed verdict, Your Honor. My client is charged with not attending school as required by law. As required by law is a 9-month school year. June 19th is not a school date. My client was not--part of his terms and conditions of probation was not Valley Vocational which happens to run in the summer. But I just submit that the State has not proven that my client had a legal obligation to attend school on June 19th which is during summer vacation as required by law.

....

[PROSECUTOR]: Your Honor, the standard here is preponderance of the evidence. We've had ample evidence and testimony today that the juvenile was informed that he had to attend school as required by law. A part of that is required by what this Court orders, and if the Court orders the juvenile to follow the instructions of his Probation Officer in order to be successful on probation, then the juvenile has to do what the Probation Officer--who is an officer of the Court--informs him to do. And we have had testimony that everyone ... was told of this with those two people. His mother knew as well and even the school spoke with him and he knew that he had to attend Valley Vocational, and he did not and he chose not to.

THE COURT: Anything else?

[JUVENILE'S COUNSEL]: It wasn't a condition of his probation, so he cannot be violated for it. Even if the Probation Officer tells him to do something, it is not a condition of his probation.

THE COURT: Motion denied.

The court found the juvenile had violated the terms and conditions of his probation by failing to attend school as required by law, and revoked his probation. At the disposition hearing, the court continued the juvenile on probation, ordering that he "[a]ttend school as required by law, and have no unexcused absences," perform 50 hours of community service work, attend the Southwest Key Outreach & Training Program, attend psychological evaluations, and visit the Phoenix Art Museum and prepare a report. The juvenile timely appealed from this order.

DISCUSSION

The juvenile court has jurisdiction to award an incorrigible child to the care of the child's parents, "subject to the supervision of a probation department" or to "the protective supervision of a probation department, subject to such conditions as the court may impose." A.R.S. § 8-241(A)(3). Among the definitions of "incorrigible child" is "any child who is habitually truant from school as provided in § 15-803, subsection C." A.R.S. § 8-201(13). "Truant child" is defined as "a child who is between six and sixteen years of age and who is not in attendance at a public or private school during the hours that school is in session, unless excused as provided by this section." A.R.S. § 15-803(C)(2). This juvenile was originally adjudicated incorrigible and placed on probation based on these provisions.

When a juvenile has been found, by a preponderance of the evidence, to have violated the terms of his probation, the juvenile court has discretion to revoke that probation. Maricopa County Juv. No. J-72918-S, 111 Ariz. 135, 136-37, 524 P.2d 1310, 1311-12 (1974); Rule 18(3), Arizona Rules of Procedure for the Juvenile Court. Juvenile court proceedings for revocation of probation are initiated and processed under the general rules provided for in juvenile delinquency actions. Rule 10, Arizona Rules of Procedure for the Juvenile Court.

The juvenile's first argument on appeal is that the juvenile's failure to attend Valley Vocational Services did not constitute a violation of the written term of his probation that he "attend school as required by law." We agree. No evidence in this record indicates that, prior to the date of the alleged violation, the juvenile was advised in writing that he was required by "law" to attend Valley Vocational Services in lieu of "school," as that term is used in the applicable statutory provisions. Nor does the record indicate that Valley Vocational Services was an educational institution. Rather, the juvenile was undergoing counseling, participating in support groups, and earning community service credit and daily payment while in attendance there. His mother testified that the previous probation officer had advised him of the requirement that he attend Fees Junior High School, where he was still enrolled, but which was not in session on the date of the alleged violation. No written term of probation required him to attend Valley Vocational as a "school." On this record, we conclude that no evidence was presented that the juvenile violated the specific written term of probation.

The issue remains, however, whether violation of the probation officer's oral directive that the juvenile attend Valley Vocational Services was sufficient to revoke probation in the absence of a written term of...