Robert L. v. Dcs, A.L. ( 2021 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
ROBERT L., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, A.L., Appellees.
No. 1 CA-JV 21-0090
FILED 9-14-2021
Appeal from the Superior Court in Mohave County
No. B8015JD201904065
The Honorable Rick A. Williams, Judge
AFFIRMED
COUNSEL
The Law Offices of Michael and Casey, Phoenix
By Robert Ian Casey, Sarah J. Michael
Counsel for Appellant
Arizona Attorney General’s Office, Tucson
By Jennifer Blum
Counsel for Appellee Department of Child Safety
MEMORANDUM DECISION
Judge David B. Gass delivered the decision of the court, in which Presiding
Judge D. Steven Williams and Judge James B. Morse Jr. joined.
ROBERT L. v. DCS, A.L.
Decision of the Court
G A S S, Judge:
¶1 Father, Robert L., appeals the superior court’s denial of his
motion to continue his termination hearing. Because the superior court did
not abuse its discretion by denying father’s motion, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 DCS removed A.L. from mother’s care and placed A.L. with
maternal grandparents. Father had no parental relationship with A.L. up to
that point. DCS later located father to determine whether he was capable of
parenting A.L. and established a case plan of family reunification. When
father did not complete court-mandated services, the case plan changed to
severance and adoption. DCS ultimately moved to terminate father’s
parental rights. The superior court set an initial termination hearing for July
2, 2020, and then reset the hearing for September 3, 2020.
¶3 At mother’s request, the superior court again continued the
initial termination hearing to October 1, 2020. Father, through his court-
appointed counsel, agreed to continue because he had concerns about a
DCS report and whether it correctly reflected his compliance. At the
October hearing, the superior court set trial for December 3, 2020, with a
pretrial conference set for November 5, 2020.
¶4 At the November pretrial conference, father requested new
counsel. The superior court denied father’s request. Father later asked to
continue the December trial, which the superior court granted, moving
father’s trial date to February 12, 2021.
¶5 The day before the February trial, father again moved to
continue. Father’s reason for the second request was his “decision to retain
counsel.” To give new counsel time to prepare, father asked for sixty days.
¶6 On February 12—the date set for trial—the superior court
heard arguments on father’s motion to continue. Father’s counsel said
father was not “being . . . helpful” and father “certainly [didn’t] have faith
in [counsel’s] ability to adequately represent him.” Father’s counsel asked
to withdraw and to allow a new firm to substitute because “presumably
they’ll have a much better relationship with” father. Father’s purported
new counsel made no appearance.
¶7 The child’s guardian ad litem (GAL) voiced concerns about a
continuance, noting father might not come back with new and prepared
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ROBERT L. v. DCS, A.L.
Decision of the Court
counsel. The GAL took no further position because he did not know the full
details of the alleged breakdown of the attorney-client relationship.
¶8 The State’s counsel acknowledged contact from a law firm
purporting to represent father. The last contact was January 20, 2021—three
weeks before trial. The State’s counsel argued the motion was a delay tactic.
The State’s counsel also noted the difficulty in re-assembling the witnesses
for a later trial.
¶9 After hearing the arguments, the superior court denied the
motion. The superior court noted the need to resolve cases timely,
especially when the “best interests of the child are at play.” The superior
court recognized only good cause can overcome the child’s best interests
and father’s belated desire to hire new counsel did not meet the standard,
especially given father had “known for almost 9 months that this day was
coming.”
¶10 The superior court also opined on the alleged breakdown of
the attorney-client relationship. The superior court acknowledged father’s
right to counsel, but said it was “really up to that litigant as far as how [to]
utilize the tools that are provided,” and no one can “force a client to
cooperate necessarily.”
¶11 In denying father’s motion, the superior court concluded:
So, when I hear about difficulties, I think that’s at [father’s]
peril in this case. I know he moved for a new attorney back in
November, and that was denied, and he still had an obligation
to work with [his appointed counsel] between that point and
trial today.
¶12 Father’s counsel asked the court to reconsider, saying father
hampered the representation by not disclosing something father claimed he
had in his possession. The superior court denied the request. After a fifteen-
minute recess, father’s counsel told the superior court she was ready to
proceed.
¶13 After the termination hearing, the superior court granted the
State’s motion to terminate father’s parental rights to A.L., concluding
father “substantially neglected or willfully refused to remedy the
circumstances that cause[d] the child to be in an out-of-home placement.”
See A.R.S. § 8-533.B.8(a).
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ROBERT L. v. DCS, A.L.
Decision of the Court
¶14 Father timely appealed. This court has jurisdiction under
article VI, section 9, of the Arizona Constitution, and A.R.S. §§ 8-235.A, 12-
120.21.A.1, and 12-2101.A.1.
ANALYSIS
I. The superior court did not abuse its discretion when it denied
father’s requested continuance.
¶15 In juvenile proceedings, “[a]ny motion to continue shall be
made in good faith and shall state with specificity the reasons for the
continuance” and requires a showing of good cause. Ariz. R.P. Juv. Ct. 46.F.
Motions to continue are left to the superior court’s sound discretion, and
this court will affirm “absent a clear abuse of discretion.” Yavapai Cnty. Juv.
Action No. J-9365, 157 Ariz. 497, 499 (App. 1988). An abuse of discretion is
“an exercise of discretion which is manifestly unreasonable, exercised on
untenable grounds or for untenable reasons.” Williams v. Williams, 166 Ariz.
260, 265 (App. 1990). This court does not re-weigh the evidence, deferring
to the superior court. See Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246,
250, ¶ 20 (2000).
¶16 Parental rights are fundamental liberty interests, but they are
not the same as a criminal defendant’s liberty interests in a criminal
proceeding. See John M. v. Ariz. Dep’t of Econ. Sec., 217 Ariz. 320, 324, ¶ 15
(App. 2007). “Unlike a criminal proceeding, which implicates the personal
liberty interest of a criminal defendant, a termination proceeding involves
more than a parent’s fundamental liberty interest in the care, custody, and
control of [a] child.” Id. This court, therefore, interprets Rule 46.F “in a
manner designed to protect the best interests of the child, giving paramount
consideration to the health and safety of the child.” Ariz. R.P. Juv. Ct. 36.
To that end, “prompt finality . . . protects the child’s interests.” Pima Cnty.
Juv. Action No. S-114487, 179 Ariz. 86, 97 (1994). Indeed, “[t]he law favors
rapid placement so that the child can bond with those who will be the legal
parents and not with those from whom the child may be taken.” Id.¶17 Here, the superior court considered the child’s best interests,
explaining the need for a timely trial. At the same time, it weighed other
factors, including father’s desire to hire presumably more compatible
counsel. The superior court, however, did not find good cause to grant
father’s motion. The superior court also considered father’s alleged failure
to disclose something favorable to father but considered the non-disclosure
something within father’s control, not necessarily the fault of his attorney.
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ROBERT L. v. DCS, A.L.
Decision of the Court
¶18 We conclude nothing in the record to establish the superior
court acted unreasonably or based on untenable grounds. Accordingly, we
affirm the superior court’s order denying father’s motion to continue.
II. Father’s ineffective assistance of counsel argument, if it is a viable
argument, is both insufficient and undeveloped.
¶19 Father alludes to an ineffective assistance of counsel claim but
fails to develop a cognizable argument. See In re Aubuchon, 233 Ariz. 62,
64–65, ¶ 6 (2013) (“arguments not supported by adequate explanation,
citations to the record, or authority” are waived). Even in the absence of
waiver, no Arizona law establishes an ineffective assistance of counsel
claim in juvenile cases. See John M., 217 Ariz. at 323–25, ¶¶ 12–17. And this
court will not create one. See Emily B. v. Dep’t of Child Safety, 1 CA-JV
19-0150, 2020 WL 2846523, at *17, ¶ 37 (Ariz. App. June 2, 2020) (mem.
decision) (noting juvenile ineffective assistance of counsel “questions will
remain unless or until the legislature enacts legislation or the Arizona
Supreme Court rules on the issue”).
CONCLUSION
¶20 We affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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