LAURIE R. v. ADES, ROMEO M.

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE LAURIE R., ) ) ) ) ) ) ) ) ) ) ) Appellant, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, ROMEO M., Appellees. DIVISION ONE FILED: 1/3/2013 RUTH A. WILLINGHAM, CLERK BY: mjt No. 1 CA-JV 12-0179 DEPARTMENT A MEMORANDUM DECISION (Not for Publication 103(G) Ariz.R.P. Juv. Ct.; Rule 28 ARCAP Appeal from the Superior Court in Maricopa County Cause No. JD21058 The Honorable Mina E. Mendez, Commissioner AFFIRMED Robert D. Rosanelli Attorney for Laurie R., Appellant Phoenix Thomas C. Horne, Attorney General Phoenix By Nicholas Chapman-Hushek, Assistant Attorney General Attorneys for Arizona Department of Economic Security G E M M I L L, Judge ¶1 Laurie R. ( Mother ) appeals the juvenile court s order adjudicating her son Romeo dependent based on Mother s stipulation to his dependency. Mother argues on appeal that her stipulation knowingly, was not made intelligently, and voluntarily. For the reasons that follow, we affirm the court s finding of dependency. FACTS AND PRODCEDURAL HISTORY ¶2 On November 9, 2011, CPS took Romeo into temporary custody. juvenile At the time, Romeo was facing delinquency charges in court for aggravated assault. criminal damage, disorderly conduct, and Prior to Romeo s court date, Mother had requested that CPS remove Romeo from the home because she was overwhelmed with Romeo s behavior. Arizona Department of Economic On November 16, 2011, the Security ( ADES ) petition alleging Romeo was a dependent child. that Mother behaviors. was unable or unwilling to filed a ADES alleged control Romeo s Furthermore, ADES alleged that Mother had minimized the child s behaviors, and neglected the child s mental and behavioral health needs. In addition to Romeo s pending delinquency charges, ADES alleged Romeo had sexually molested his nephew, and had demonstrated other sexualized behaviors. ADES proposed an initial case plan of family reunification. ¶3 petition. Mother At denied the the pretrial allegations conference, of the Mother dependency received and signed a Form 1 notifying her of her rights as a parent in a dependency case. ADES reported at the pretrial conference that it would agree to a stipulation of dependency based solely on Romeo s behavior. Mother continued to dispute the allegations 2 and the matter was set for trial. During the interim, the court appointed a guardian ad litem for Mother. ¶4 the court asked the parties if a settlement was still possible. ADES stated neglect At it the would dependency agree allegations dependency. in to adjudication delete return the for hearing, unwilling-to-parent Mother s stipulation and to The court advised Mother that a stipulation would avoid adverse findings against her and allow Romeo continued access to services. The court instructed Mother and her counsel to discuss whether to stipulate to dependency: [The court] want[s] to get a sense of whether this is something that can be resolved through a stipulation, so that maybe that would make you feel more comfortable than, at the conclusion of the trial, my reviewing the evidence and having to make specific findings with respect to the dependency. . . . These are your choices. If you decide that it would be better for you and for Romeo for you to do it by way of stipulation and we ll come up with language that you re comfortable with and he s made a dependent child that way, I m happy to let you do that if you want to do it that way and you think it s the right thing to do. If you don t, there s no discussion. We re just going to do the trial. I m going to review all the exhibits and then I m going to make specific findings about whether or not there s a dependency in this case. ¶5 After Mother consulted with her attorney, the attorney 3 reported that Mother was in agreement with the stipulation. Following counsel the again stipulation. court s stated request that Later in for Mother the clarification, [is] hearing, still fine Mother Mother s with the clarified her understanding of the stipulation: [Mother]: So if I wanted to actually have my trial, have my opportunity to present my side of the evidence and my witnesses and all of that, then that negates the opportunity then I don t get so then I I have to stipulate, I have to give that up. I have to give up being able to show my side of it to stipulate to this watered down dependency that they re offering today. That s the only way I can get it. It wouldn t be still available if I present my evidence and my side, and try to show you that there is no case of dependency and I would like it to be dismissed or found not ... dependent? [Court]: Stipulation ... means that the two sides are agreeing to the language that I use that goes in the minute entry as the finding. So it is true if there s if we re doing it with a trial and there s not a stipulation, I m going to look at all of the exhibits and I m going to make the dependency finding, if there is a dependency finding to be made, based on the record. Mother s guardian concerns with ad litem [Mother s] also reported stipulation, and that she had no that she believed Mother had the full mental capacity to make the stipulation. She also confirmed that in her opinion the stipulation served Mother s best interests. ¶6 The court determined 4 that Mother had knowingly, voluntarily, and intelligently stipulated to the dependency. The juvenile court filed a signed minute entry accepting the stipulation and finding Romeo dependent as to Mother. ¶7 Mother timely filed a notice of appeal. 1 We have jurisdiction under Arizona Revised Statutes ( A.R.S ) § 8-235 (2007), and Rule 103(A) of the Arizona Rules of Procedure for the Juvenile Court. ANALYSIS ¶8 Mother argues on appeal the juvenile court failed under A.R.S. § 8-843(C) (2007) to determine that Mother made the stipulation knowingly, intelligently, and voluntarily. argues the thorough juvenile inquiry to court ensure was required Mother to perform understood and Mother a more voluntarily waived her rights. ¶9 Ordinarily, we review for an abuse of discretion. an adjudication of dependency Willie G. v. Ariz. Dep t of Econ. Sec., 211 Ariz. 231, 235, ¶ 21, 119 P.3d 1034, 1038 (App. 2005) (citation omitted). interpretation of However, statutes, we court review rules, the and application and constitutional claims de novo because they are questions of law. In re John M., 201 Ariz. 424, 426, ¶ 7, 36 P.3d 772, 774 (App. 2001); 1 Romeo s Father is not a party to this appeal. The dependency petition alleged that Father had abandoned and neglected Romeo. Although Father initially denied the dependency petition allegations, he agreed to a finding of dependency against him after mediation. 5 Adrian E. v. Ariz. Dep t of Econ. Sec., 215 Ariz. 96, 99, ¶9, 158 P.3d 225, 228 (App. 2007) (citation omitted). ¶10 Initially, ADES argues Mother has waived her right to assert that she did not knowingly, intelligently, voluntarily agree to the dependency stipulation. and Because Mother did not raise this argument in juvenile court, the alleged error is waived unless fundamental, deciding, is prejudicial that unpreserved Mother error. fundamental claim of entitled error to appellate review We will assume, error review is available in dependency a for without for proceeding. an Cf. Monica C. v. Ariz. Dep t of Econ. Sec., 211 Ariz. 89, 94, ¶ 2223, 118 P.3d 37, 42 (App. 2005) (reviewing for fundamental error an unpreserved objection to ADES s failure to provide a parent notice of her right to a jury trial); Bradshaw v. State Farm Mut. Auto. Ins. Co., 157 Ariz. 411, 420, 758 P.2d 1313, 1322 (1988) (noting review for fundamental error may be appropriate in situations that deprive[] a party of a constitutional right ). ¶11 Even assuming Mother is entitled to the benefit of appellate review for fundamental error, in this case Mother has arguably forfeited such review by not specifically contending in her opening brief on appeal that the juvenile court committed fundamental, prejudicial error. argues nor otherwise establishes 6 We note that Mother neither the prejudice required to support a reversal, even if we were to find a fundamental error. Nonetheless, substantive especially because merits when a we prefer to than on rather constitutional decide the claim cases basis is of asserted, on the waiver, we will analyze the merits of Mother s argument on appeal. ¶12 The right to custody of one s child is fundamental but not absolute. Michael J. v. Ariz. Dep t of Econ. Sec., 196 Ariz. 246, 248, ¶¶ 11-12, 995 P.2d 682, 684 (2000). Although we are appeal, addressing an issue of dependency in this we recognize that a court may sever parental rights under certain circumstances, so long as the procedures are fundamentally fair and satisfy due process requirements. Santosky v. Kramer, 455 U.S. 745, 754 (1982). ¶13 The Arizona statutes and rules of juvenile procedure governing dependency are designed to protect a parent s right to due process. Under A.R.S. § 8-843(B): At the initial dependency hearing, the court shall ensure that the parent or guardian has been advised of the following rights: 1. The right to counsel, including appointed counsel if the parent or guardian is indigent. 2. The right to trial by the court on the allegations of the petition. 3. The right to cross-examine all witnesses that are called to testify against the parent or guardian. 7 4. The right to use the process of the court to compel the attendance of witnesses. A parent may waive his or her allegations in the petition. rights and admit to A.R.S. § 8-843(B), (C). the If a parent admits the allegations: [T]he court shall determine that the parent or guardian understands the rights described in subsection [B] of this section and that the parent or guardian knowingly, intelligently, and voluntarily waives these rights. A.R.S. § 8-843(C). Similarly, Rule 55(D) of the Arizona Rules of Procedure for the Juvenile Court requires in relevant part: In accepting an admission contest the court shall: or a. Determine whether the party the rights being waived; plea of no understands b. Determine whether the admission or plea of no contest is knowingly, intelligently and voluntarily made. Ariz. R.P. Juv. Ct. 55(D)(1)(a),(b). ¶14 Mother argues that, in order to satisfy the requirements of § 8-843(C) and Rule 55(D)(1), the juvenile court should have engaged in a colloquy with her to determine if her stipulation was made knowingly, intelligently, and voluntarily. Mother claims the procedures required here are equivalent to those required when a trial court accepts admissions of guilt or stipulations during mental health commitments. ¶15 We disagree. In making its determination under § 8-843(C) and Rule 8 55(D)(1) that intelligently, a parent s and admission voluntarily, the was made juvenile knowingly, court is required to conduct a formal or prescribed colloquy. not Nothing under A.R.S. § 8-843 or Rule 55(D)(1) imposes a duty upon the juvenile court to perform a specific colloquy before accepting a parent s plainly stipulation require the to dependency. juvenile court The to statute determine and a rule parent s admission was intelligently made, but we will not judicially impose a requirement the legislature has intentionally chosen not to require. P.3d 441, 445 Hart v. Hart, 220 Ariz. 183, 187, ¶ 17, 204 (App. 2009) (citation omitted). Nor will we rewrite the juvenile court rules to compel such an inquiry. See In re Amber S., 225 Ariz. 364, 368-69, ¶ 15, 238 P.3d 632, 636-67 (App. 2010) (declining to extend the rules to require juvenile court to state its rationale on the record for removal of a child). ¶16 Mother is correct that our supreme court has explicitly directed the superior court to engage in a colloquy before accepting a defendant s guilty plea under Ariz. R. Crim. P. 17.2. 2 2 We conclude, however, that had the supreme court Arizona Rule of Criminal Procedure 17.2 requires that: Before accepting a plea of guilty or no contest, the court shall address the defendant personally in open court, informing him or her of and determining that 9 intended to require a similar inquiry when the juvenile court is accepting a parent s stipulation to dependency, it would have specified such a requirement in the applicable juvenile rules. Furthermore, this juvenile court proceeding is civil in nature and differs intrinsically from a criminal prosecution. ¶17 Although there is no requirement for the juvenile court to perform a colloquy, the court must still determine from the record that a parent s stipulation was intelligently made. See A.R.S. § 8-843(C). court may need to engage determine this issue. our supreme Depending on the record, the juvenile court in a colloquy with a parent to In the context of a criminal proceeding, has held that, in a case involving the surrender of [c]onstitutional rights, it must appear from the record that the waiver was knowingly, intelligently, and voluntarily made. State v. Avila, 127 Ariz. 21, 25, 617 P.2d 1137, 1141 (1980). In the mental health context, we confirmed that a court may determine either through conducting a colloquy with the patient or by review of the record, that there is sufficient evidence to conclude that counsel s waiver on behalf of the patient was intelligently made. in fact voluntarily, knowingly, and In re MH 2007-001275, 219 Ariz. 216, 221, he or she understands . . . [t]he constitutional rights which the defendant foregoes by pleading guilty or no contest. 10 ¶ 19, 196 P.3d 819, 824 (App. 2008) (emphasis added) (superseded by statute irrelevant here). ¶18 The juvenile court in this case did engage Mother in a lengthy discussion, including questions by the court and answers by Mother, about her rights and the proposed stipulation, and the record reveals that Mother had been previously advised in writing of her rights. conclude the court Based on the record as a whole, we did not err in determining Mother s stipulation was knowingly, intelligently, and voluntarily made. ¶19 Specifically, the record demonstrates that Mother was represented by counsel at all proceedings. At the pretrial conference hearing, Mother received and signed a Form 1 which informed Mother of her rights including the right to counsel, the right petition, to and a trial the on right the to allegations cross-examine of the dependency witnesses. At the dependency adjudication hearing, the parties discussed at length the possibility of a stipulation. The court explained that by stipulating, any Mother would avoid finding that she had neglected her son or was unwilling to parent him, but she would have to give up her right to challenge the dependency. The court granted a short recess so that Mother could discuss the stipulation with her counsel. counsel reported to the Following the meeting, Mother s court agreed with the stipulation. on two occasions that Mother Mother s own comments to the court 11 revealed her understanding of the effect of the stipulation. She stated on the record quite accurately that she would have to give up her opportunity to show you that there is no case of dependency, in order to receive the watered down dependency finding proposed by ADES. Mother has not pointed to any evidence in the record that she was misled, coerced, or confused when she agreed to the stipulation. ¶20 The juvenile court did not err in finding Mother s stipulation was made knowingly, intelligently, and voluntarily. CONCLUSION ¶21 For the foregoing reasons, we affirm the juvenile court s order adjudicating Romeo as dependent to his Mother. _____/s/__________________________ JOHN C. GEMMILL, Presiding Judge CONCURRING: _____/s/__________________________ MARGARET H. DOWNIE, Judge _____/s/__________________________ DIANE M. JOHNSEN, Judge 12

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