Christopher B. v. Mia D. ( 2022 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
CHRISTOPHER B., Appellant,
v.
MIA D., A.B., J.B., Appellees.
No. 1 CA-JV 21-0356
FILED 9-22-2022
Appeal from the Superior Court in Maricopa County
No. JS519624
The Honorable Nicole Stoutner, Judge Pro Tempore Retired
VACATED AND REMANDED
COUNSEL
John L. Popilek PC, Scottsdale
By John L. Popilek
Counsel for Appellant
Thomas Vierling Attorney at Law, Phoenix
By Thomas A. Vierling
Counsel for Appellee Mia D.
MEMORANDUM DECISION
Judge Angela K. Paton delivered the decision of the Court, in which
Presiding Judge Maria Elena Cruz and Judge Peter B. Swann joined.
CHRISTOPHER B. v. MIA D., et al.
Decision of the Court
P A T O N, Judge:
¶1 Christopher B. (“Father”) appeals the superior court’s order
terminating his parental rights to A.B. and J.B., arguing the court deprived
him of his right to counsel. Because we agree, we vacate the termination
order and remand for further proceedings consistent with this decision.
FACTS AND PROCEDURAL HISTORY
¶2 Mia D. (“Mother”) and Father were married and lived in
Pennsylvania with their two children. In January 2018, Mother served
Father with divorce and custody papers. In December 2018, Father was
convicted of three domestic violence offenses stemming from an incident
involving Mother and the children and was sentenced to six to seventeen
years in a Pennsylvania prison.
¶3 In 2019, a Pennsylvania court accepted the parents’ custody
stipulation and granted Mother physical and legal custody of the children
and permission to relocate. Mother and the children moved to Arizona. In
May 2020, Mother petitioned the Maricopa County Superior Court to
terminate Father’s parental rights. She simultaneously asked the superior
court to assume jurisdiction under the Uniform Child Custody Jurisdiction
and Enforcement Act.
¶4 In June 2020, the superior court appointed counsel to
represent Father in the termination proceeding, but six months later, that
attorney moved to withdraw based on “a substantial and material
breakdown of the attorney-client relationship.” The court granted
counsel’s motion and appointed a second attorney, Michael T. Westervelt,
to represent Father. Father sent the court a letter in February 2021, stating
he tried to contact Westervelt several times but had not heard back from
him.
¶5 In March 2021, the superior court assumed jurisdiction of the
case and set a pretrial conference for April. Father was not present at the
April 2021 pretrial conference. Westervelt was present and orally moved
to withdraw as Father’s counsel. The court denied his motion and
scheduled the trial for July 2021.
¶6 In June 2021, Father wrote a letter to the superior court
outlining his concerns regarding the communication “breakdown” he was
experiencing with Westervelt. Father explained that he had been “available
and waiting to participate” in the April pretrial conference but was not
connected to the call. Westervelt told the court he was not aware he had to
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CHRISTOPHER B. v. MIA D., et al.
Decision of the Court
call the prison to get Father connected to the call. Father also said he had
attempted to contact Westervelt nine times since his January appointment
but was unable to reach him. Father outlined several outstanding issues he
had not been able to discuss with counsel and concluded, “As such, I would
like to have considered, at the next conference, my representing myself and
the process for this.”
¶7 Trial commenced on July 16, 2021. Father appeared
telephonically from prison and Westervelt appeared as his counsel. At the
outset, Westervelt told the court he was “not in a position to go forward
with trial.” Father explained that, despite his best efforts, he had been
unable to communicate with his appointed attorney until four days prior to
trial, and therefore retained private counsel. Father asked for a sixty-day
continuance to allow his newly hired private counsel to prepare for trial.
The court noted the case was “the longest running case” on its calendar and
needed resolution.
¶8 Westervelt told the court that although he felt he could not
“effectively represent” Father due to “irreconcilable differences,” he had
“spent a lot of time” on Father’s case and would proceed to trial if ordered
to. The court allowed Westervelt to withdraw and continued the trial for
three days, until July 19, to allow Father’s private counsel to file a
substitution motion. The court noted no further continuance would be
granted and Father would be expected to proceed with trial on July 19—
either with private counsel or pro se. The court admonished Father, stating
he had participated in court proceedings since December 2020, giving him
“more than enough time to prepare [his] case in this matter.” Father said
he was “not qualified” to represent himself.
¶9 The trial commenced on July 19, 2021. Father was initially
present telephonically. Father’s private counsel appeared but noted he had
been retained by Father on July 16 and was making a limited appearance
solely to request a two-week continuance to prepare for trial. The superior
court responded that the continuance request was another delay tactic by
Father and was “especially unfair for the children and their best interests.”
The court made the following findings: (1) Father requested to represent
himself in his June 12 letter, (2) he was provided two court-appointed
attorneys, (3) he had sufficient notice of the hearing and was aware of the
date given the various motions he filed, (4) Westervelt filed objections and
provided witness and exhibit lists indicating he was preparing for trial
despite irreconcilable differences with Father, and (5) a continuance would
not be in the best interests of the children.
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CHRISTOPHER B. v. MIA D., et al.
Decision of the Court
¶10 The superior court offered to continue the matter for three
days—until July 22—but Father’s counsel responded he was not available
on that date. The court dismissed Father’s private counsel and ordered
Father to represent himself, without confirming whether Father knowingly,
intelligently, and voluntarily was waiving his right to counsel. Father
objected, stating he was not “qualified” or “prepared” to represent himself.
The superior court told Father he had sufficient notice of the trial dates and
found that Father was delaying the proceedings.
¶11 The trial proceeded that day. Minutes into it, Father told the
superior court he would soon be disconnected from the call because the
hearing notice he received said the hearing would only last an hour and
that was the information he shared with the prison. The court took a fifteen-
minute recess and instructed the parties to stay on the line.
¶12 When the hearing resumed, Father was no longer present.
After some discussion regarding communications with prison staff, the
court said Father “chose[] not to participate” and it was “not going to stop
the hearing simply because of that behavior.” The court ordered the trial to
proceed by default, noting that Father had been warned about the
consequences of failing to appear.
¶13 In early August 2021, the superior court terminated Father’s
parental rights and made the following findings: (1) Father’s request for a
continuance was not warranted, (2) Father “knowingly and voluntarily”
absented himself from the second half of the July 19 proceeding, (3) Father
was repeatedly warned by the court of the consequences of his absence, (4)
no “good cause” existed for Father’s “voluntary” absence at trial, and (5)
“Father’s voluntary and knowing failure to appear constituted waiver and
admission to the allegations” in Mother’s petition. Father appealed. We
have jurisdiction pursuant to Article 6, Section 9, of the Arizona
Constitution and A.R.S. §§ 8-235(A), 12-120.21(A)(1), and -2101(A)(1).
DISCUSSION
¶14 Father argues the court violated his due process rights by
dismissing his appointed attorney, denying his private attorney a
continuance to prepare for trial, and ordering that Father proceed to trial
pro se. We agree. Father raises additional arguments on appeal, but
because we find the deprivation of his right to counsel to be dispositive, we
decline to address them.
¶15 “[T]he right to counsel in a severance proceeding is . . . of
constitutional dimension.” Daniel Y. v. Ariz. Dep’t of Econ. Sec., 206 Ariz.
4CHRISTOPHER B. v. MIA D., et al.
Decision of the Court
257, 260, ¶ 14 (App. 2003); cf. A.R.S. § 8-221 (codifying this right). “It is
constitutionally impermissible to require a party entitled to counsel to
choose between self-representation and representation by a lawyer with
whom [they have] a completely fractured relationship, clearly an
irreconcilable conflict.” Tammy M. v. Dep’t of Child Safety, 242 Ariz. 457, 462,
¶ 21 (App. 2017) (quoting State v. Moody, 192 Ariz. 505, 509, ¶ 23 (1998)). At
the same time, irreconcilable differences alone “[are] not sufficient to merit
forfeiture of the right to counsel without advance warning.” Daniel Y., 206
Ariz. at 263, ¶ 25. We review the superior court’s decision to permit counsel
to withdraw and to grant or deny a continuance for an abuse of discretion.
State v. Jones, 185 Ariz. 471, 482 (1996) (granting counsel’s motion to
withdraw); State v. Barreras, 181 Ariz. 516, 520 (1995) (granting a
continuance). The superior court’s exercise of its discretion must not result
in a “miscarriage of justice or deprive[] one of the litigants of a fair trial.”
Christy A. v. Ariz. Dep’t of Econ. Sec., 217 Ariz. 299, 308, ¶ 31 (App. 2007)
(citation omitted).
¶16 While the superior court may present a parent with the option
either to retain his current counsel with which he has no true irreconcilable
difference or to represent himself, it may not permit current counsel to
withdraw and require a parent to represent himself without first warning
him of the dangers of doing so. See Tammy M., 242 Ariz. at 462, ¶¶ 18-20.
¶17 Here, Westervelt was appointed in January 2021, but despite
Father’s multiple attempts to contact him, they did not communicate until
four days before trial. The court permitted Westervelt to withdraw, which
meant Father would need to turn to his newly-hired private counsel
because he did not want to represent himself. And Father’s private counsel
requested a two-week continuance to prepare given that he was retained
on July 16, the first day of trial. This was a reasonable and justified request
given the circumstances, but the court denied it.
¶18 Appellees argue that the court was justified in denying
Father’s request for a continuance because Father had engaged in “hybrid
representation” and thereby demonstrated he could represent himself.
“Hybrid representation involves concurrent or alternate representation by
both defendant and counsel.” State v. Murray, 184 Ariz. 9, 27 (1995). Indeed,
Father filed documents on his own behalf with the superior court while
represented by counsel and had previously mentioned possibly
representing himself. But this request was a consequence of Father’s
inability to contact his attorney and was neither an unequivocal request to
represent himself nor evidence of a knowing, intelligent, and voluntary
waiver of his right to counsel. The requirement for an unequivocal request
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CHRISTOPHER B. v. MIA D., et al.
Decision of the Court
to represent oneself acts as a “safety net” to prevent inadvertent waiver
when a defendant is “thinking aloud about the benefits and pitfalls of self-
representation.” State v. Henry, 189 Ariz. 542, 548 (1997) (citing Adams v.
Carroll, 875 F.2d 1441, 1444 (9th Cir. 1989)). The record must indicate that a
waiver of the right to counsel was “knowingly, intelligently and voluntarily
made” for the waiver to be effective. State v. Avila, 127 Ariz. 21, 25 (1980).
¶19 We recognize the superior court’s apparent frustration,
considering it appointed Father two attorneys and he hired a third, and that
continuing the trial to allow his third attorney time to prepare would
further delay the case, which was “the longest running case” on its
calendar. But the initial nearly year-long delay waiting for the
Pennsylvania court to resolve the jurisdiction issue was not caused by
Father. Although Mother first filed the case in May 2020, the superior court
did not assume jurisdiction until March 2021. The record here does not
show that Father’s conduct was “so egregious that it amounted to a
forfeiture of [his] right to counsel.” See Daniel Y., 206 Ariz. at 262-63, ¶ 25.
Father was deprived of his right to counsel and thus was not provided with
fundamentally fair procedures that satisfied due process. See Kent K. v.
Bobby M., 210 Ariz. 279, 284, ¶ 24 (2005) (citing Santosky v. Kramer, 455 U.S.
745, 753-54 (1982)).
CONCLUSION
¶20 We vacate the superior court’s order terminating Father’s
parental rights and remand for further proceedings.
AMY M. WOOD • Clerk of the Court
FILED: AA
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