AZAPP is a blog that provides a thorough, up-to-date, and efficient resource to stay abreast of significant developments concerning civil cases in Arizona's appellate courts - the two Divisions of the Arizona Court of Appeals and the Arizona Supreme Court.
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Friday, October 3, 2003
Daniel Y. v. Arizona Dept. of Economic Security: Division One Holds That Juvenile Court Erred In Terminating Appellant's Parental Rights Without Providing Appointed Counsel
On October 2, Division One vacated a juvenile court order severing the appellant's parental rights because he had not been provided with appointed counsel at the severance trial. The appellant's son was removed from his custody after Child Protective Services (CPS) received a referral alleging that he and his wife had abused the child. CPS subsequently filed a motion to terminate appellant's parental rights. Appellant initially retained two different attorneys, both of whom removed themselves from the case. The court then appointed two more attorneys, both of whom withdrew on the ground of "irreconcilable differences." The court cautioned appellant that it would be "reluctant" to appoint him a third attorney, and stated that, although it was not appointing a new attorney, it would continue with the severance trial as scheduled. The trial went forward with no appointed counsel. Appellant informed the court that he did not know how to proceed without counsel, presented no witnessess, conducted no cross-examination, and made no closing argument. At the conclusion of the trial, the court terminated appellant's parental rights. On appeal, appellant argued that the juvenile court's refusal to provide him with counsel violated his right to due process, and the Court of Appeals agreed. The court noted that a parent's right to counsel in a severance proceeding, while not co-extensive with a criminal defendant's right to counsel under the Sixth Amendment, is "of constitutional dimension." Waiver of that right therefore could not occur unless the parent is advised of the dangers of self-representation and the difficulties involved in defending oneself without formal legal training. The juvenile court had provided no adequate "advance warning" in this case, the court noted. And although the right to counsel could be "forfeited" by a parent's "extremely dilatory conduct," the record did not support the conclusion that appellant was guilty of such conduct. Accordingly, the court vacated the severance order and remanded the matter for a new severance proceeding.
The opinion was authored by Judge Snow and joined by Judges Sult and Portley.
On October 2, Division One vacated a juvenile court order severing the appellant's parental rights because he had not been provided with appointed counsel at the severance trial. The appellant's son was removed from his custody after Child Protective Services (CPS) received a referral alleging that he and his wife had abused the child. CPS subsequently filed a motion to terminate appellant's parental rights. Appellant initially retained two different attorneys, both of whom removed themselves from the case. The court then appointed two more attorneys, both of whom withdrew on the ground of "irreconcilable differences." The court cautioned appellant that it would be "reluctant" to appoint him a third attorney, and stated that, although it was not appointing a new attorney, it would continue with the severance trial as scheduled. The trial went forward with no appointed counsel. Appellant informed the court that he did not know how to proceed without counsel, presented no witnessess, conducted no cross-examination, and made no closing argument. At the conclusion of the trial, the court terminated appellant's parental rights. On appeal, appellant argued that the juvenile court's refusal to provide him with counsel violated his right to due process, and the Court of Appeals agreed. The court noted that a parent's right to counsel in a severance proceeding, while not co-extensive with a criminal defendant's right to counsel under the Sixth Amendment, is "of constitutional dimension." Waiver of that right therefore could not occur unless the parent is advised of the dangers of self-representation and the difficulties involved in defending oneself without formal legal training. The juvenile court had provided no adequate "advance warning" in this case, the court noted. And although the right to counsel could be "forfeited" by a parent's "extremely dilatory conduct," the record did not support the conclusion that appellant was guilty of such conduct. Accordingly, the court vacated the severance order and remanded the matter for a new severance proceeding.
The opinion was authored by Judge Snow and joined by Judges Sult and Portley.
