Maricopa County, Juvenile Action No. JS-834, Matter of

• Decision Date: 13 May 1976
• Docket Number: No. 1,CA-JUV,JS--834,1
• Citation: 26 Ariz.App. 485,549 P.2d 580
• Parties: In the Matter of the Appeal in MARICOPA COUNTY, JUVENILE ACTION NO.42.
• Court: Arizona Court of Appeals

Page 580

549 P.2d 580

26 Ariz.App. 485

In the Matter of the Appeal in MARICOPA COUNTY, JUVENILE ACTION NO. JS--834.

No. 1 CA-JUV 42.

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

May 13, 1976.

Moeller & Henry by Jack L. Phelps, Phoenix, for appellant mother

Charles S. Pizzo and Alan E. LoBue, Phoenix, for appellant father.

Bruce E. Babbitt, Atty. Gen. by Joseph C. Richter, Asst. Atty. Gen., Phoenix, for appellee.

OPINION

JACOBSON, Presiding Judge.

This is an appeal from a written order of the Juvenile Court of Maricopa County terminating the parental relationship between the natural parents and the minors involved herein.

The basic issue raised is whether the statutory provisions or the Rules of the Juvenile Court control the appeal from such an order. This opinion is being issued at this time on the court's own motion as a result of the court's examination of the record to determine whether it has jurisdiction. Our preliminary examination indicating that this court lacked jurisdiction was brought to the attention of counsel, and the written views of counsel were solicited and obtained. Van Baalen v. Superior Court, County of Maricopa, 19 Ariz.App. 512, 508 P.2d 771 (1973); Howard P. Foley Co. v. Harris, 4 Ariz.App. 294, 419 P.2d 735 (1966).

The record in this matter indicates that on October 20, 1975, the Juvenile Court entered a minute order terminating the parental relationship with findings. On November 7, 1975, a formal written order was signed and entered by the Juvenile judge in conformity with A.R.S. § 8--538(A), including the requisite findings as to jurisdiction and the grounds previously set forth in the minute entry. This order also terminated the parental relationship of appellants to their children. Notice of appeal was not filed until December 22, 1975, and in compliance with the Rules of Civil Procedure it merely gave notice that appellants appealed from the November 7, 1975 order, but contrary to the Rules of the Juvenile Court contained no statements of the grounds for the appeal and no memorandum of authorities. This procedural posture presents the questions of the timelines and sufficiency of the notice of appeal.

Once again we find ourselves confronted with an issue which arises either from the lack of any applicable provision in the Rules of Procedure for the Juvenile Court, 17A, A.R.S., or from a conflict between those rules and various statutory provisions in the Juvenile Code (A.R.S. § 8--201 et seq.), or from conflicting provisions within the Rules themselves. As illustrative of other appeals, highlighting these deficiencies, See, e.g., In The Matter of The Appeal in Pima County Juvenile Action No. J--46735 v. Howard, 112 Ariz. 170, 540 P.2d 642 (1975); Maricopa County Juvenile No. 71257 v. Cook, 109 Ariz. 139, 506 P.2d 1033 (1973); Maricopa County Appeal No. J--68100 v. Haire, 107 Ariz. 309, 486 P.2d 791 (1971); In the presents the questions of the timeliness and Action No., J--477351--1, 26 Ariz.App. 46, 546 P.2d 23, (filed February 17, 1976); In the Matter of the Appeal in Yavapai County Juvenile Action No. 7707, 25 Ariz.App. 397, 543 P.2d 1154 (1975); In the Matter of the Appeal in Maricopa County Juvenile Action No. JS--734, 25 Ariz.App. 333, 543 P.2d 454 (1974); In the Matter of The Appeal in Pima County Juvenile Action No. J--35316, 24 Ariz.App. 384, 539 P.2d 188 (1975); Hernandez v. State of Arizona ex rel. Arizona Department of Economic Security, 23 Ariz.App. 32, 530 P.2d 389 (1975).

The statutory sections affecting children (Title 8) deal with various matters, including adoption, dependency and neglect, delinquency, foster homes, and termination of parental relationships, Inter alia, and grants to the Juvenile Court exclusive jurisdiction over such matters. The Juvenile Rules, while purporting to 'govern the procedure For all matters in the Juvenile Court,' Juvenile Rule 1, contains provisions expressly relating to delinquency, neglect and dependency appeals, and certain other 'General Provisions', which are limited to highly specific and narrow matters. There are no provisions in the Rules, for example, which expressly deal with hearing procedures, orders, post-judgment proceedings, or fees in any type of case other than one involving delinquency, dependency, or neglect. In other words, proceedings such as adoptions or termination of parental relationships are not specifically mentioned in the Rules, although such matters are handled exclusively in the Juvenile Court and are purportedly covered by the Juvenile Rules. We are aware of the difficulty involved in promulgating an integrated set of rules which will effectively cover all cases which may arise thereafter, but we respectfully suggest that after four years of experience under the present, initial Juvenile Rules, some additions and revisions are in order. This appeal spotlights the necessity for revision to guard against the pitfalls to innocent litigants who are trapped in their insufficiencies. ¹

In this particular case, we are confronted with the question of what governs the requirements for the type of order to be entered, and the allowable time and manner for perfecting an appeal--the statutory provisions relating to termination cases, or the Juvenile Rules.

A.R.S. § 8--538(A) (effective 1970) provides:

'Every order of the court terminating the parent-child relationship or transferring legal custody or guardianship of the person of the child or providing for protective supervision of the child shall be in writing and shall recite the findings upon which such order is based, including findings pertaining to the court's jurisdiction. Such order shall be conclusive and binding on all persons from the date of entry.'

A.R.S. § 8--543 (effective 1970) provides that:

'Any party aggrieved by any order, judgment or decree of the court may appeal to the court of appeals for review of questions of law. The procedure of such an appeal shall be governed by the same provision applicable to appeals from the superior court. . . .' (emphasis added)

Thus, under the statutory provisions relating to termination proceedings, an order 'in writing' would be required in conformity with the Rules of Civil Procedure generally applicable to civil appeals. The time limit for appeal would be 60 days after the entry thereof, and a simple notice of appeal and cost bond would have to be filed. Rules 58(a) and 73(b), Rules of Civil Procedure, 16 A.R.S. The matter of appeals is also handled in the Juvenile Rules.

Juvenile Rule 24 (effective 1972) provides that 'any aggrieved party may appeal from a final order of the juvenile court to the Court of Appeals.'

Juvenile Rule 25 (effective 1972) provides in part as follows:

'(a) An appeal must be taken within 15 days after the final order is entered in the minutes of the juvenile court. There is no requirement that a final order be in writing and signed by the judge before an appeal can be taken.

'(b) An appeal may be taken only by filing with the Clerk of the Superior Court a written notice of appeal which specifies the party taking the appeal and designates the particular matter appealed from, together with a concise statement of the grounds for the appeal supported by a memorandum of authorities. If oral argument is requested, it shall be separately indicated at the time of filing the notice of appeal. . . .'

Under the Juvenile Rules, no written order would be required for appealability and the notice of appeal, statement of grounds, and supporting memorandum would have to be filed within 15 days after the minute entry order ordering the termination.

Comparison of the foregoing conflicting statutory and rule provisions indicates that we must resolve two basic questions: (1) whether an order must be in writing to be appealable in a termination case, and (2) the time limit and method for perfecting an appeal from a termination order.

The right to appeal is substantive and can be created only by constitution or statute. State v. Birmingham, 95 Ariz. 310, 390 P.2d 103 (1964), modified on rehearing, 96 Ariz. 109, 392 P.2d 775 (1964). The substantive Right to appeal in termination cases has been created by the Legislature in § 8--543 and is not subject to alteration or diminution by the Supreme Court. Ibid. However, the procedural aspects of perfecting and processing such an appeal may be and are regulated exclusively by the Supreme Court. Ariz.Const., Art. VI, Sec. 5; Arizona Podiatry Assn. v. Director of Insurance, 101 Ariz. 544, 422 P.2d 108 (1966); State v. Birmingham, 96 Ariz. 109, 392 P.2d 775 (1964).

When a new substantive right is created by the Legislature accompanied by procedural provisions for implementing it, such as in A.R.S. § 8--543, the statutory procedures are regarded as rules of the Supreme Court until modified by rules promulgated by that Court, and when so promulgated, the Court rules take precedence over the previously prescribed statutory procedures. State ex rel. Purcell v. Superior Court, 107 Ariz. 224, 485 P.2d 549 (1971); Arizona Podiatry Assn., supra; State v. Blazak, 105 Ariz. 216, 462 P.2d 84 (1969).

The Legislature itself has recognized this...