Arizona

ABUSE

DOUBLE JEOPARDY

State v. Nereim, 317 P.3d 646 (Ariz. Ct. App. 2014). Defendant could not be convicted of both aggravated driving under the influence of intoxicating liquor while a minor is present and a misdemeanor driving under the influence of intoxicating liquor. This violated double jeopardy.

WITNESSES

J.D. v. Hegyi, 335 P.3d 1118 (Ariz. 2014). Defendant was charged with sexual abuse of stepdaughter and sought interview with minor victim. Statutory protection of victim’s rights entitles minor victim’s mother on victim’s behalf to refuse interview by defendant. This right continues until final disposition of criminal charges even when victim reaches 18 earlier.

ADOPTION

PATERNITY

David C. v. Alexis S., 2015 WL 5076820 (Ariz. Ct. App.). Court granted biological father’s motion to set aside adoption of his daughter, and adoptive parents appealed. Father’s failure to file notice of claim of paternity with state putative father registry did not invalidate his efforts to assert parental rights through paternity action, even though adoptive parents relied on absence of such filing. Father served mother with notice of paternity action within 30-day period that began to run on date John Doe notice was served by publication and she did not share information with adoptive parents.

CUSTODY

UCCJEA

Angel B. v. Vanessa J., 316 P.3d 1257 (Ariz. Ct. App. 2014). Where mother brought termination proceedings in Arizona against father, California had original jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). California was the “home state” because child had lived there for over six months and Arizona was not shown to be a more proper venue. 

DEPENDENCY

GUARDIANSHIP

Ariz. Dep’t of Econ. Sec. v. Hon. K.C. Stanford, 323 P.3d 760 (Ariz. Ct. App. 2014). Trial court exceeded its authority when it acted sua sponte to establish a guardianship for two siblings with their maternal aunt. Agency was correct that aunt was not a guardian because placement violated the Interstate Compact on the Placement of Children (ICPC). Aunt lived in Kentucky, and Kentucky denied agency’s ICPC request since aunt’s husband had a past criminal history.

JUSTIFICATION

Louis C. v. Dep’t of Child Safety, 2015 WL 3917382 (Ariz. Ct. App.). Father claimed his use of force against 12-year-old son during disciplinary action for missed school assignments was justified and not viable basis for adjudication of dependency. Father struck child more than eight times on his back and buttocks, front and back of legs, and on hands, which child raised defensively. Father was not entitled to justification defense when he used inappropriate and unreasonable force in disciplining minor child.

REMOVAL

Arizona Dep’t of Econ. Sec. v. Lee, 264 P.3d 34 (Ariz. Ct. App. 2011). Child welfare agency’s failure to comply with statutory procedure for reviewing child’s removal from the home and filing a dependency petition did not require that the child be released from temporary custody and returned to her mother since the statutory procedure was discretionary not mandatory. Before returning the child to her mother, a hearing should have been conducted to assess the child’s health and safety.

REPRESENTATION

Castro v. Hochuli, 2015 WL 509646 (Ariz. Ct. App.). Where child stated that he wanted to live with his father, who had killed his mother, court should have heard evidence to determine whether child’s attorney was acting contrary to her duties by supporting termination petition. FULL SUMMARY

REUNIFICATION

Alexander M. v. the Honorable Lisa Abrams, 328 P.3d 1045(Ariz. Ct. App.). Lower court improperly delegated its statutory duty to agency to determine if it was in the children’s best interest to reunify with parents. Lower court had ordered a case plan of reunification for the children, who were placed in out-of-home care. Court also gave the agency discretion to decide if children could return to their parents’ custody if the parents followed their case plan.

DELINQUENCY

CONSENT

State v. Butler, 302 P.3d 609 (Ariz. 2013). State statue purporting to provide consent for drug or alcohol tests of anyone who operated a motor vehicle in the state violated youth’s Fourth Amendment rights. Officer told youth he had to submit to a blood test and no facts showed it would have been impractical for the officer to obtain a warrant. FULL SUMMARY

DNA TESTING

Mario W. v. Kaipio, 265 P.3d 389 (Ariz. Ct. App. 2011). A statutory requirement that juveniles undergo DNA testing as a condition for release was constitutional. The requirement did not violate the Fourth Amendment right to be free from unreasonable searches and seizures since a judicial finding of probable cause that the juveniles had committed crimes had been entered that reduced their expectation of privacy and increased the state’s interest in preventing crimes. Any intrusion on the juveniles’ right to privacy was reasonable to ensure public safety.

In re Mario W., 281 P.3d 476 (Ariz. Ct. App. 2012).
Court of Appeals’ opinion was vacated where it held deoxyribonucleic acid (DNA) profiling of suspected delinquents pre-adjudication was constitutional. Obtaining a DNA swab before releasing a youth serves a significant government interest to justify intruding into Fourth Amendment right in that it can help identify a youth if they abscond. However, there is no important government interest in processing the samples pre-adjudication and practice frustrates the presumption of innocence.

SEX OFFENDER REGISTRIES

In re Javier B., 280 P.3d 644 (Ariz. Ct. App. 2012).
Juvenile court did not abuse its discretion in ordering youth placed on sex offender registry without considering the effect the determination would have on the youth. Registry statute does not require that courts consider specific factors or balance community safety. Further, the potential effect on the juvenile and court order was not arbitrary in that it considered a number of reports and evaluations that were consistent with the order.

TERMINATION OF PARENTAL RIGHTS

BEST INTERESTS

Demetrius L. v. Joshlynn F., 2016 WL 116104 (Ariz.). Mother petitioned to terminate father’s parental rights so stepfather could adopt nine-year-old child. Stepfather’s plan to adopt child could support finding that termination of father’s parental rights was in child’s best interests, and juvenile court could conclude proposed adoption benefitted child and supported finding that termination was in child’s best interests. However, sole focus on whether adoption would change child’s living arrangement was improper.

FAILURE TO APPEAR

Marianne N. v. Dep’t of Child Safety, 2016 WL 5746243 (Ariz. Ct. App.). Mother appealed termination of her parental rights to three children. She failed to establish good cause for failure to appear at pretrial conference, which resulted in waiver of her ability to contest allegations in termination petition. Mother signed and returned form that listed correct date and time of hearing and failed to provide evidence she had previously been advised of different date. Juvenile court still had duty to assess record and evidence and determine whether statutory ground for termination had been proven.

HEARINGS

Bennigno R. v. Dep’t of Econ. Security, 312 P.3d 861 (Ariz. Ct. App. 2013). Trial court properly dismissed father’s summary judgment motion in termination proceeding on claim of res judicata. Agency had filed a second termination petition months later after the court found grounds but had not made a best interests determination for first petition. Different circumstances existed at the time of the second petition, including new psychological evidence about bonding of children with parents and foster parents and children’s longer period without permanency.

IMMIGRATION

State v. Buccheri-Bianca, 312 P.3d 123 (Ariz. Ct. App. 2013). In criminal child sexual abuse trial, judge did not err in excluding fact that victim had applied for a U-Visa, a type of visa available to victims of crime, as irrelevant or unduly prejudicial. The record supported that the allegations were not motivated by the desire to seek a visa since there was no evidence she knew about U-Visas until after reporting the abuse to her counselor, nor was there evidence that the victim was in the U.S. undocumented. 

INCARCERATION

Ariz. Dep’t of Econ. Sec. v. Rocky J., 2014 WL 1395109 (Ariz. Ct. App.). Trial court properly held the agency failed to provide clear and convincing evidence to terminate father’s parental rights due to his incarceration. Trial court considered the length and strength of the parent-child relationship, whether the relationship could continue during the incarceration, the child’s age, the likelihood that incarceration would deprive the child of a normal home, the availability of another parent, and the effect of an incarcerated parent’s absence on the child. Father was incarcerated when his daughter was born and made many efforts to communicate and build a relationship while in prison. However, his efforts were often blocked by maternal grandmother, who had custody of daughter.

Jeffrey P. v. Dep’t of Child Safety, 2016 WL 792337 (Ariz. Ct. App.). Court addressing incarceration ground for termination of parental rights must consider designated length of sentence and may consider possibility of early release, but is not required to presume early release. Father’s two-and-one-half-year prison sentence would deprive two-year-old child of normal home, and caseworker testified about difficulty of nurturing relationship between young child and incarcerated parent. Mother’s rights had already been terminated, so mother could not parent child during father’s incarceration.

INDIAN CHILD WELFARE ACT

Gila River Indian Community v. Dep’t of Child Safety, 2016 WL 4249676 (Ariz. Ct. App.). The plain language of the Indian Child Welfare Act (ICWA) does not allow for the transfer of state preadoptive and adoptive placement proceedings to a tribal court after parental rights are terminated. 

LEGAL REPRESENTATION

Xavier R v. Joseph R., 280 P.3d 640 (Ariz. Ct. App. 2012). Where juvenile court found state had not shown that termination was in children’s best interests and children appealed, rule requiring counsel to discuss merits of appeal with client before filing did not apply to case with children aged two and four. Supreme Court could not have intended strict application in such a case as it would preclude any appeal by attorneys representing very young or immature children.

PUTATIVE FATHERS

Frank R. v. Mother Goose Adoptions, 402 P.3d 996 (Ariz. 2017). Nonresident putative father’s failure to timely register on state registry was statutory ground for termination of his parental rights even though mother and adoption agency engaged in deception and misconduct, father filed paternity action, and father registered in mother’s home state. Statute provided bright-line rule to balance interests of putative father, infants, and adoptive parents. Failure to comply with rule would require courts to make individualized, post-adoption determination of reasonability of father’s conduct, undermining finality of adoptions.

REASONABLE EFFORTS

Shawanee S. v. Ariz. Dep’t of Econ. Sec., 319 P.3d 236 (Ariz. Ct. App. 2014). Trial court properly found the child welfare agency made reasonable efforts to provide reunification services. Mother attempted to challenge this issue for the first time on appeal, having numerous opportunities to voice her concerns before appeal, such as preconference hearings, periodic review hearings, permanency planning hearings, and the termination hearing. Agency made reasonable efforts at each of the six review hearings.