Peter G. v. Dcs

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
PETER G., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, S.G., D.G., Appellees.
No. 1 CA-JV 16-0306
FILED 12-15-2016
Appeal from the Superior Court in Yavapai County
No. V1300JD201580005
The Honorable Anna C. Young, Judge
AFFIRMED
COUNSEL
Law Office of Florence M. Bruemmer, P.C., Anthem
By Florence M. Bruemmer
Counsel for Appellant
Arizona Attorney General’s Office, Mesa
By Ashlee N. Hoffmann
Counsel for Appellee Department of Child Safety
PETER G. v. DCS, et al.
Decision of the Court
MEMORANDUM DECISION
Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani and Chief Judge Michael J. Brown joined.
W I N T H R O P, Judge:
¶1 Peter G. (“Father”) appeals the juvenile court’s decision
severing his parental rights to S.G. and D.G. (collectively, “the children”).
Father argues that the trial court erred in terminating his parental rights
because his waiver of his right to a severance trial was not voluntary. For
the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 In March 2015, Father, R.G. (“Mother”),1 four of their adult
children, and two of their minor children were involved in a physical
altercation with multiple police officers in a commercial parking lot. One
of the adult children was shot and killed during the encounter. The
surviving family members were arrested, and the two minor children were
sent to a juvenile detention center.
¶3 DCS took temporary custody of the children and filed a
petition for dependency. Upon being released from detention, S.G. was
placed in a licensed foster home and D.G. was placed in a group home.
¶4 In June 2015, the juvenile court ordered the children
dependent as to Father on the ground of neglect, due to his incarceration
and criminal conduct. The court also found S.G. dependent as to Father
based on neglect for failure to protect.
1 Mother did not contest the termination of her parental rights and is
not a party to this appeal.
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PETER G. v. DCS, et al.
Decision of the Court
¶5 After initially finding that a case plan of family reunification
was appropriate, the court later granted DCS’s request to change the case
plan to severance and adoption.2
¶6 DCS subsequently moved to terminate Father’s parental
rights to the children, alleging that Father neglected the children by not
providing them with basic necessities, such as schooling and medical care.
See Ariz. Rev. Stat. (“A.R.S.”) §§ 8-201(24), -533(B)(2).3 DCS also alleged that
Father neglected S.G. by failing to remove her from the center of the
family’s 2015 brawl with police officers in the parking lot. Finally, DCS
alleged that Father willfully abused or failed to protect the children from
willful abuse, based on disclosures made by the children regarding alleged
sexual abuse and manipulation by Father. See A.R.S. §§ 8-201(2), -533(B)(2).
¶7 At the Report and Review and Pretrial Conference, Father’s
counsel advised the court that Father might change his position regarding
severance if he would be able to address the court regarding placement.4
The court agreed to allow Father “to make statements regarding placement
at the beginning of trial and prior to testimony,” noting, however, that it
“will not make a decision regarding placement that day.”
¶8 In June 2016, the court conducted a severance hearing and, at
the outset, indicated it would not be addressing any issues relating to the
placement on that day. Before hearing testimony, the court noted that
Father had indicated at the prior hearing that “if [he] were allowed to give
an unsworn statement, 15 minutes, that he would be changing his plea on
the severance.” Father’s attorney then stated that Father would not be
changing his plea, and that he wanted to go forward with the severance
2 Along with its request for a change in case plan, DCS submitted a
report to the juvenile court indicating, among other things, that Father’s
“strong antigovernment and antisocial beliefs were a contributing factor in
the reported abuse of his children over the years” and that “[s]hould
[Father’s] children be returned to his care, there is serious concern he would
return to his antigovernment ideals and again keep the children isolated
from society.” Further, the report noted that “[n]either child has expressed
a desire to return to their parents[‘] care.”
3 Absent material changes after relevant events, we cite a statute’s
current version.
4 Father had concerns about his children being placed with their
paternal grandfather.
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PETER G. v. DCS, et al.
Decision of the Court
trial and address the court regarding his position on placement. The court
reiterated that it would not address placement at this hearing.
¶9 After entering exhibits into evidence for trial, Father’s counsel
requested a five-minute recess. Upon returning, Father’s counsel stated,
Your Honor, my client feels like he didn’t understand it was
an either/or proposition with regard to addressing the court
or going to trial. I asked him what’s the most important to
him. It’s a very personal decision as to him, as to what he
wanted to proceed with. I do want to note his objection as to
that, but he would prefer to keep the children safe and
address you with regard to placement.
The court then confirmed that Father would be making an unsworn
statement and changing his plea to no contest on the termination, again
specifically advising that if Father preferred to proceed with a severance
trial, he had the right to do so.
¶10 To confirm Father’s decision, the court addressed him
directly, asking if he preferred to give a 15-minute statement and change
his plea to no contest. Father stated, “It’s not how I’d like it, but my priority
is to keep my children safe.” The court then engaged in a colloquy with
Father to determine whether he wished to proceed with the severance
hearing:
THE COURT: So you’d be agreeing basically that I would
allow you to make a 15-minute unsworn statement, and then
you would be entering a plea of no contest to the termination;
is that correct?
THE FATHER: I guess, yeah.
THE COURT: Well, not I guess. It’s either a “yes” or “no.”
THE FATHER: Well, I don’t seem to have any choice, so yes.
THE COURT: Well, you do have a choice. You have an
absolute right to proceed with the trial we’ve got set.
THE FATHER: I was told if my rights were severed I
wouldn’t have anything to do with placement or say anything
about placement, so it’s more important to me that I be able
to speak and they be safe.
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PETER G. v. DCS, et al.
Decision of the Court
THE COURT: But you understand that I would not be
making any decisions regarding placement today. Do you
understand that?
THE FATHER: I do understand that.
THE COURT: All right. Just to confirm with you your
understanding of your trial rights. You have the absolute
right to go forward with the severance trial we’ve got set.
Your attorney would be able to ask questions of the other
party’s witnesses. Your attorney could subpoena people to
testify for you and you could choose to testify on your own
behalf. Do you understand all that?
THE FATHER: Yes.
¶11 When the court again attempted to confirm that Father was
waiving his right to trial, Father responded he was doing so “[i]n order to
speak.” The court then stated that “it’s not in order to speak” because
Father had the right to testify. Father stated that he felt he was being “black
mailed” because if he lost at trial he would not have a say in the children’s
placement. After again reiterating Father’s absolute right to a trial, the court
stated Father’s two options were to “either go forward with the trial . . . or
[] waive your right to trial and enter the plea of no contest.” Father formally
waived his right to trial, and the court accepted his plea of no contest, noting
it was made knowingly, intelligently, and voluntarily. Father then briefly
addressed the court on placement before exiting the courtroom.
¶12 After Father was excused, the court heard testimony from the
DCS case manager and indicated it would take the matter under
advisement. The court subsequently issued an order severing Father’s
parental rights to the children, finding that Father “knowingly, intelligently
and voluntarily entered a plea of no contest to the termination of his
parental rights.” The court further found that DCS had established the
statutory grounds for severance of Father’s parental rights and that
severance was in the children’s best interests.
¶13 Father timely appealed, and we have jurisdiction pursuant to
Article 6, Section 9 of the Arizona Constitution; A.R.S. § 8-235(A); and Rule
103(A) of the Arizona Rules of Procedure for the Juvenile Court.
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PETER G. v. DCS, et al.
Decision of the Court
ANALYSIS5
¶14 Father argues that the juvenile court erred in terminating his
parental rights to the children because his waiver of his right to a trial was
not voluntary.6 He contends that the juvenile court “induced” him into
waiving his constitutional right to a trial by promising that he would be
permitted to address the court regarding placement if he changed his plea
to no contest.
¶15 Pursuant to rule 66(D)(1) of the Arizona Rules of Juvenile
Procedure, a parent may waive his right to a severance trial by not
contesting the allegations against him. In accepting a plea of no contest, the
juvenile court shall:
a. Determine whether the party understands the rights being waived;
b. Determine whether the admission or plea of no contest is knowingly,
intelligently and voluntarily made;
c. Determine whether a factual basis exists to support the termination
of parental rights; and
d. Proceed with entering the findings and orders as set forth in
subsection (F) of this rule.
Ariz. R. Juv. P. 66(D)(1).
¶16 “In reviewing the procedural requirements for accepting ‘a no
contest plea in a termination proceeding, we turn for guidance to the
analogous context of guilty or no contest pleas made by criminal
defendants.’” Timothy W. v. Dep’t of Child Safety, 240 Ariz. 232, 233, ¶ 6, 377
P.3d 1026, 1027 (App. 2016) (quoting Tina T. v. Dep’t of Child Safety, 236 Ariz.
5 We review a juvenile court’s termination order in the light most
favorable to sustaining the court’s decision. Denise R. v. Ariz. Dep’t of Econ.
Sec., 221 Ariz. 92, 95, ¶ 10, 210 P.3d 1263, 1266 (App. 2009).
6 Father does not contest the juvenile court’s findings regarding the
statutory grounds for severance or the court’s best interests findings.
Accordingly, he has waived any challenge on appeal to those findings. See
Childress Buick Co. v. O’Connell, 198 Ariz. 454, 459, ¶ 29, 11 P.3d 413, 418
(App. 2000) (“[I]ssues not clearly raised in appellate briefs are deemed
waived.”).
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PETER G. v. DCS, et al.
Decision of the Court
295, 298-99, ¶ 15, 339 P.3d 1040, 1043-44 (App. 2014)). In the criminal
context, a defendant’s waiver of a constitutional right is valid where it is
“done with sufficient awareness of the relevant circumstances and likely
consequences.” Brady v. U.S., 397 U.S. 742, 748 (1970). “A plea will be found
involuntary only where a defendant lacks information of ‘true importance
in the decision-making process.’” State v. Pac, 165 Ariz. 294, 295-96, 798 P.2d
1303, 1304-05 (1990) (quoting State v. Crowder, 155 Ariz. 477, 481, 747 P.2d
1176, 1180 (1987)).
¶17 Here, we find no indication that Father’s no contest plea was
anything other than voluntary. Father received and signed a Form 3
(“Notice to Parent in Termination Action”),7 which advised him of his right
to trial. Additionally, the juvenile court’s extensive dialogue with Father,
explaining his options and advising him multiple times of his right to
proceed with trial, refutes any contention that Father was unaware of the
circumstances of his plea. Cf. State v. Rodriguez, 25 Ariz. App. 111, 113-14,
541 P.2d 574, 576-77 (App. 1975) (stating that the defendant’s plea was valid
where the court engaged in an oral colloquy with him regarding the
voluntariness of his plea); State v. Baker, 217 Ariz. 118, 121, ¶ 15, 170 P.3d
727, 730 (App. 2007) (holding that the defendant’s waiver of his jury trial
right was invalid where the transcript did not contain a discussion of
waiver or show the court had a personal colloquy with the defendant).
¶18 Although Father argues that he “was in a catch-22 because, in
order to address the court regarding placement, he had to give up his right
to trial,” the record does not indicate the court, or anyone else, induced him
to give up his right to a trial. Rather, the court patiently and repetitively
confirmed Father’s understanding and decision to not contest the statutory
basis for severance and the best interests analysis. Although the court
reiterated that it would not be addressing placement on that day, it
nevertheless permitted Father to make a statement concerning placement.
¶19 Finally, the fact that Father was represented and advised by
counsel throughout the dependency proceedings and during the severance
trial at which he entered his no contest plea “strongly militates against the
conclusion that the plea was involuntary.” State v. Lerch, 107 Ariz. 529, 530,
490 P.2d 1, 3 (1971) (internal quotation marks omitted). Accordingly, we
find no abuse of discretion.
7 See Ariz. R.P. Juv. Ct. Form 3.
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PETER G. v. DCS, et al.
Decision of the Court
CONCLUSION
¶20 The juvenile court’s order terminating Father’s parental rights
is affirmed.
AMY M. WOOD • Clerk of the Court
FILED: AA
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