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ARIZONA: Cecilia A. v. Az. Dep’t. of Economic Security
04.27.2012 | Termination of Parental Rights
The Court of Appeals of Arizona, Division One, Department A, affirmed the juvenile court’s order terminating appellant-mother’s parental rights, finding that the juvenile court did not violate the mother’s due process rights by proceeding with the severance hearing while she was unable to meaningfully participate in the hearing and assist counsel. Here, the juvenile court terminated appellant-mother’s rights after a severance hearing that mother was not able to participate in due to her mental state; mother was appointed both a GAL and counsel to protect her interests. The GAL subsequently appealed without gaining mother’s consent because she did not understand the proceedings, arguing that the severance hearing should have been postponed until mother was able to participate in the hearing. The court first addressed the issue of whether the appeal was defective because it did not contain the required avowal. Pursuant to Arizona Rule of Procedure for the Juvenile Court 104(b), when appellant is represented by counsel, the notice of appeal should contain the phrase “By signing and filing this notice of appeal, undersigned counsel avows that [he/she] communicated with the client after entry of the judgment being appealed, discussed the merits of the appeal and obtained authorization from the client to file this notice of appeal.” However, the court found that since Rule 104(B) is not triggered when a party files a notice on his or her own behalf, it is also not triggered by a GAL’s filing and, therefore, the appeal was not defective. Second, the appellate court found that the GAL had the authority to file the appeal on mother’s behalf because the juvenile court properly authorized the appeal under the power given to it in Rule 40(c), which states “the court shall conduct hearings and enter orders as determined to be necessary to protect the interests of the parent….” Finally, the court found that the juvenile court did not violate appellant-mother’s due process rights by failing to postpone the hearing, finding that “affording the same right to incompetent parents in severance proceedings would inject indefinite uncertainty into a child’s life, which would be detrimental to that child’s best interest,” and reasoned that the process of appointing a GAL for the parent adequately assured the mother of her due process right. Further, the court found that Title 8, A.R.S. does not require that a mentally incompetent parent be restored to competency before the court proceeds with a severance hearing. Therefore, the court of appeals affirmed the order terminating appellant-mother’s parental rights.
Cite: No. 1-CA-JV 11-0167; 2012 Ariz. App. LEXIS 52; (Ariz. Ct. App. April 12, 2012)
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