Cecilia A. v. Arizona Department of Economic Security
229 Ariz. 286
| Ariz. Ct. App. | 2012Background
- ADES petitioned for dependency of A.G. and alleged neglect and inability to parent due to mother's mental health; after 20-month-old was placed in foster care, the petition proceeded in the juvenile court.
- The court appointed a guardian ad litem (GAL) for Mother and for A.G.; eventually A.G. was found dependent as to Mother.
- Almost two years later, Mother's GAL moved to terminate parental rights under A.R.S. § 8-533(B)(8)(c) based on extended out-of-home placement and likelihood Mother would be unable to parent in the near future.
- As the severance hearing neared, the GAL informed the court Mother could not meaningfully assist counsel; with agreement of the GALs and ADES counsel, the hearing proceeded with exhibits stipulation, case manager testimony, and Mother excused from the courtroom; Mother’s counsel did not cross-examine the case manager.
- The juvenile court found severance warranted and in A.G.’s best interests; Mother's GAL filed a timely notice of appeal, and ADES moved to strike for lack of a proper avowal under Rule 104(B).
- The appellate court suspended the appeal to allow the juvenile court to assess the sufficiency of the notice; the court later authorized the GAL to file the appeal nunc pro tunc.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether due process was violated by proceeding with severance while the mother could not participate | Mother (via GAL) contends proceedings should have paused to restore competency | ADES argues no stay required so as to protect child’s stability; GAL and counsel protected Mother’s interests | No due process violation; severance proceeded with GAL and counsel protecting Mother's interests |
| Whether the GAL had authority to file a notice of appeal on Mother's behalf | GAL appointed to protect interests may file necessary notices to preserve rights | GAL lacked authority to decide for Mother absent incapacity findings | GAL authority via Rule 40(c) to protect interests; nunc pro tunc filing authorized |
| Whether Rule 104(B) avowal requirements apply when a GAL files the notice of appeal | Rule 104(B) avowal not triggered by GAL filing | Rule 104(B) requires counsel avowals when counsel files | Rule 104(B) not triggered by GAL filing; appellate review permitted with nunc pro tunc filing |
Key Cases Cited
- In re T.E.B., 24 P.3d 900 (Okla. Civ. App. 2001) (due process did not require restoration of competency before severance proceedings)
- Kelly R. v. Ariz. Dep't of Econ. Sec., 213 Ariz. 17 (App. 2006) (appointment of GAL under § 8-535(F) depends on ability to understand and assist)
- Denise H. v. Ariz. Dep't of Econ. Sec., 193 Ariz. 257 (App. 1998) (severance civil in nature; mental incompetence does not automatically forbid severance)
- Kent K. v. Bobby M., 210 Ariz. 279 (2005) (due process balancing child stability with parental rights)
- Maricopa County Juvenile Action No. JD-6982, 186 Ariz. 354, 922 P.2d 319 (App. 1996) (GAL's role to protect parent's interests cannot trump parent’s wishes absent incapacity finding)
- S.A.D. (La. Ct. App.), 481 So. 2d 191 (La. Ct. App. 1985) (comparable due process consideration supporting GAL-protected participation)