Arnwine v. Hon. Ishikawa/State

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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 TERREA L. ARNWINE, ) ) Petitioner, ) ) v. ) ) THE HONORABLE BRIAN ISHIKAWA, ) 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 10-0088 DIVISION ONE FILED: 05-25-2010 PHILIP G. URRY,CLERK BY: GH DEPARTMENT D Maricopa County Superior Court No. JV552658 DECISION ORDER The court, Presiding Judge Michael J. Brown and Judges Jon W. Thompson considered Arnwine. and the Sheldon special H. action Weisberg filed by participating, Petitioner Terrea has L. For the following reasons, we accept jurisdiction and grant relief. The litem 2010, juvenile ( GAL ) to in court a appointed juvenile investigate Petitioner delinquency whether there as matter are guardian on any March ad 17, dependency matters. On March 25, after receiving recommendations from the probation officer, prosecutor, counsel for the juvenile, and Petitioner, the court ordered the child detained. The following day, the probation officer submitted a Request to the Court and Order Report recommending that a new GAL be appointed in the case based in part on her allegation that [t]here have been many problems with [Petitioner] on past cases in which she has shown little regard for boundaries with clients and has been problematic to deal with in her tone and attitude. The probation officer further alleged that Petitioner had failed to conduct proper therefore not investigation acting in the of the juvenile s juvenile s best home and interests. was The juvenile court, without explanation, issued a minute entry on April 8, ordering Petitioner. that a new GAL be appointed in place of In this special action, Petitioner challenges the court s order removing her as GAL without notice or hearing. We may accept special action jurisdiction when the case presents a pure question of law for which there is no equally plain, speedy, and adequate remedy by appeal. See Ariz. R.P. Spec. Act. 1(a); see also State ex rel. Pennartz v. Olcavage, 200 Ariz. 582, 585, ¶ 8, 30 P.3d 649, 652 (App. 2001). Here, the order removing Petitioner is not appealable; therefore, in the exercise of our discretion we accept jurisdiction. State v. Superior Court, 179 Ariz. 343, 344, 878 P.2d 1381, 1382 (App. 1994). 2 Petitioner does not contend that the juvenile court has clear authority to remove a GAL from a particular case; instead, she asserts that the court s power to remove is not absolute and that it must conduct a hearing prior to deciding whether removal is justified. In support, Petitioner directs our attention to the standard for removal of an attorney in a criminal case. See, e.g., State v. Paris-Sheldon, 214 Ariz. 500, 504, ¶ 8, 154 P.3d 1046, 1050 discretion if it (App. 2007) fails to ( A inquire trial into court the abuses basis for its the defendant s dissatisfaction with counsel or fails to conduct a hearing on the defendant s complaint after being presented with specific factual allegations in support of the request for new counsel. ). In that setting, requests for change of counsel typically come from a disgruntled client, in contrast to the request for officer. removal here that was submitted by a probation But regardless of who submits the request for removal of an attorney, the decision to remove should be made only after the court matter. considers attorney s position regarding the See id.; People v. Cole, 95 P.3d 811, 832 (Cal. 2004) (recognizing counsel the to that prevent a trial court impairment of may remove court court-appointed proceedings and when counsel, without good cause, is not prepared for trial); Watson v. Black, 239 S.E.2d 664, 668 3 (W.Va. 1977) (concluding that whenever there is a conflict of interest or any other cause of dissatisfaction by a defendant with his court-appointed attorney, the trial court must hold a hearing and dispose of the issue on the record). Additionally, general considerations of due process lend support to the concept that a juvenile court must provide an attorney with the right to defend accusations brought against him or her prior to removal from a case. See McLeod v. Chilton, 132 Ariz. 9, 18-19, 643 P.2d 712, 721-22 (App. 1981) (in the employment context, recognizing that a liberty interest arises where action against an reputational harm that results damage to in community). individual prevents the imposes further individual s a stigma or opportunities or standing in the Given Petitioner s financial interest, as well as the possible damage to her professional reputation and standing in the community, Petitioner was improperly denied the right to have an opportunity to rebut the allegations raised by the probation officer. Finally, we find support for our conclusion in the holding of Zukerman v. Piper Pools, Inc., 556 A.2d 775, 786 (N.J. Super. App. Div. 1989). considered court. In that case, the Superior Court of New Jersey whether a GAL was properly removed Reversing, the court noted as follows: 4 by the trial We do not hold that a court may not inquire into the actions of the guardian ad litem, or may not remove such guardian for sufficient cause. However, any such removal must be for good cause and based on clear and convincing evidence of misconduct or inability to serve the best interests of the ward, or incapacity of the guardian ad litem. Id. Here, there is no indication the juvenile court determined, prior to removal, that Petitioner had committed misconduct or that she was unable to serve the best interests of the juvenile. Thus, we find that the juvenile court abused its discretion in failing to conduct a hearing in order to provide Petitioner an opportunity to respond to the probation officer s allegations before removing her as the GAL. Accordingly, IT IS ORDERED accepting jurisdiction of this special action petition. IT IS ORDERED vacating the juvenile court s order removing Petitioner as GAL. IT IS FURTHER ORDERED that Petitioner shall serve as GAL in this delinquency proceeding until her obligations have ceased, subject to removal for good cause following notice and hearing. 5 by the juvenile court IT IS FURTHER ORDERED that the clerk of the court provide a copy of this Decision Order to the Honorable Brian Ishikawa, a Judge of the Superior Court, and to each party appearing herein. /s/ __________________________________ MICHAEL J. BROWN, Presiding Judge 6

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