From: azfightcps
Date: Mon Apr 12, 2004 1:14 am
Subject: I found the case I needed/for your info and files here it is!
Pima County Juv. Action No. J-64016, 127 Ariz. 296, 298, 619 P.2d 1073, 1075
(App. 1980) (reversible error for court to proceed with dependency hearing
after
determining mother was entitled to appointment of counsel, but before actually
appointing counsel).
Arizona Case Law
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MATTER OF JUVENILE ACTION NO. J-64016, 127 Ariz. 296
(App. 1980)619> <P.2d> <1073
In the Matter of the Appeal in Pima County, JUVENILE ACTION NO. J-64016.
No. 2 CA-CIV 3716.
Court of Appeals of Arizona, Division Two.
November 24, 1980.
Appeal from the Superior Court, Pima County, No. J-64016, Lillian S.Fisher,
J.
Rubin & Myers by Stephen M. Rubin, Tucson, for appellant.
Robert K. Corbin, Atty. Gen., by John R. Evans, Asst. Atty.
Gen., Tucson, for appellee DES.
Kathleen Alistair McCarthy, Tucson, for appellee Minor Child.
Lawrence E. Condit, Tucson, for appellee Foster Parents.
OPINION
HATHAWAY, Chief Judge.
A juvenile court order declaring a minor child to be dependent and awarding
his care, custody and control to the Department of Economic Security (DES)
with physical Page 297 custody in certain foster parents is appealed by the
child's mother. Briefs have been filed by the appellant/mother, DES, the
attorney for the child, and the foster parents. Several issues have been
presented by appellant as grounds for reversal. We need address but one which
is dispositive and requires reversal.
On August 8, 1979, DES filed a petition in juvenile court alleging the minor
child was dependent in that he was in need of effective parental care and
control which his mother was unable to provide because of extreme emotional
problems affecting her ability to provide care and supervision for the child.
DES requested the court to grant temporary custody to it pending a hearing
on the matter. The notice served on the mother advised her that a dependency
petition had been filed, that a hearing on the petition and on temporary
custody was set for September 5, 1979, that the court had ordered the child
committed to the care, custody and control of DES pending the hearing, that
she might appear at the hearing and be represented by counsel and that counsel
would be appointed upon a showing of lack of financial
ability to retain her own counsel.
A temporary custody order was signed by the juvenile court judge on August
13, 1979, declaring the minor to be a temporary ward of the court and awarding
his temporary care, custody and control to DES. An emergency placement hearing
was conducted the following day and the court approved placement of the minor
with
the foster parents.
Appellant appeared at the September 5 hearing and at the outset requested
appointment of counsel. The court found her indigent and thus eligible for
a court-appointed attorney. Considering the allegations of the dependency
petition as denied by the mother, the court then proceeded to hear testimony
from a DES caseworker, a social worker, and the foster father. Letters written
by the latter two witnesses were read by the court and admitted into evidence.
The DES caseworker recommended continuation of the foster home placement
pending a contested hearing to be scheduled. At the conclusion of his testimony,
the court asked appellant whether she had any questions she wanted to ask.
Appellant, speaking through an interpreter, responded:
"I would like to continue to see my child more frequently, because I've been
only able to see him once this month."
This was appellant's sole participation in the September 5 hearing. The court
found the minor to be "temporarily a dependent minor child" and ordered his
temporary care, custody and control awarded to DES with actual physical placement
in the home of the foster parents. The court further ordered that an attorney
be
appointed to represent appellant and that a review hearing be held January
16, 1980. On September 18, 1979, counsel was appointed for appellant.
From January 16, 1980, until the final hearing on May 27, 1980, numerous
hearings relative to the dependency issue and visitation were held. The foster
parents continuously opposed unsupervised visitation with appellant and it
was not until April 3 that the court ordered unsupervised visitation at the
mother's home for a
24-hour period on alternate weekends.
After the May 27 hearing, the court made extensive findings of fact and concluded
that appellant was unable to provide proper and effective parental control.
The child was adjudicated dependent. Visitation on alternate weekends, as
previously provided, was ordered to continue and a review hearing was set
for November 5, 1980, unless an earlier review was required by any of the
parties.[fn1]
Appellant contends that she was denied due process of law when the court
proceeded with the September 5 hearing while she was unrepresented by counsel.
Both DES and the attorney for the minor Page 298 child concede that this
was error,[fn2] and we agree. A.R.S. Sec. 8-225(B) provides:
"If a child, parent or guardian is found to be indigent, the juvenile court
shall appoint an attorney to represent such person or persons unless counsel
for the child is waived by both the child and the parent or guardian."
This statute is legislative recognition that due process requires appointment
of counsel in a dependency proceeding where the parent faces losing custody
of a child. As noted above, appellant requested appointment of counsel. The
court made the requisite finding of indigency and indicated that counsel
would
be appointed to represent her. However, as temporary placement of the child
had already been accomplished, the court should have proceeded no further
on the dependency issue until appellant was represented by counsel. Instead,
evidence was presented relative to dependency, with no real opportunity for
cross-examination, and the court found the child to be temporarily dependent,
a status for which we find no statutory definition. That the court
did in fact consider the dependency issue is borne out by the fact that a
"review" hearing was set for January 1980, more than four months later. Furthermore,
our review of the entire record discloses that the only basis for certain
findings of fact is evidence presented at the September 5 hearing. We therefore
cannot say that because appellant was represented by counsel at all the subsequent
hearings, the absence of counsel at the September 5 hearing was harmless
error. As stated by our Supreme Court in Arizona State Department of Public
Welfare v. Barlow, 80 Ariz. 249, 296 P.2d 298 (1956):
"In our opinion the denial of the right to effective participation of counsel
constitutes a denial of due process of law so gross as to lack a necessary
attribute of a judicial determination. We hold that an order or judgment
of a Superior Court which is predicated on a hearing in which a parent is
denied
the opportunity to be heard by counsel if requested is void. (Citations omitted)"
80 Ariz. at 253, 296 P.2d at 300.
When appellant requested appointment of counsel on September 5, the court
should have done nothing more than appoint counsel and set a date for hearing
the dependency petition. We are particularly troubled that almost ten months
elapsed from the filing of the dependency petition until final adjudication.
In
the interim, appellant was deprived of her fundamental right to custody of
her child.
Since appellant was not afforded counsel at the September 5 dependency hearing,
a critical stage of the proceedings, she was denied due process. The juvenile
court order adjudicating her child dependent must be set aside and the cause
remanded for a new hearing of the dependency issue.
Reversed and remanded.
HOWARD and RICHMOND, JJ., concur.
[fn1] A request for change of visitation was filed September 12, 1980, by
the state, but the court declined jurisdiction as this appeal was pending.
[fn2] We have not considered the briefs filed by the foster parents. Although
they were permitted to actively participate in the proceedings below, they
are not parties. A.R.S. Sec. 8-515(D)(2) accords them a right to participate.
This right, however, means participation in dispositional proceedings as
an
interested third party. In re People in Interest of C.P., 34 Colo. App. 54,
524 P.2d 316 (1974).
Page 299
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