Timothy W. v. Department of Child Safety

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

TIMOTHY W., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, M.W., Appellees.

No. 1 CA-JV 16-0029
FILED 6-30-2016

Appeal from the Superior Court in Maricopa County
No. JD23088
The Honorable John R. Ditsworth, Judge

REVERSED AND REMANDED

COUNSEL

Arizona Attorney General’s Office, Tucson
By Laura J. Huff
Counsel for Appellee Department of Child Safety

John L. Popilek, Scottsdale
By John L. Popilek
Counsel for Appellant

OPINION

Judge Andrew W. Gould delivered the opinion of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Randall M. Howe joined.
 TIMOTHY W. v. DCS, M.W.
Opinion of the Court

G O U L D, Judge:

¶1 Timothy W. (“Father”) appeals the juvenile court’s order
denying his request to withdraw his waiver of a termination hearing.
Because we find the juvenile court abused its discretion in denying Father’s
request, we reverse and remand.

FACTS AND PROCEDURAL BACKGROUND

¶2 In February 2013, the juvenile court determined Child was
dependent as to Father. Two years later, DCS moved to terminate Father’s
parental rights. Based on DCS's motion, the juvenile court changed the case
plan from reunification to severance and adoption.

¶3 At the October 2015 status conference, Father’s attorney
advised the court that Father wished to waive his right to a termination
hearing and not contest the allegations in the severance petition. In
response to the court’s questions, Father confirmed that he had spoken to
his attorney about the decision and did not want to contest the allegations
in the petition. The court found that Father knowingly, intelligently and
voluntarily waived his right to a termination hearing, and set a hearing for
January 2016 to determine the factual basis for terminating Father’s rights.

¶4 At the January hearing, the juvenile court asked Father if he
still wished to waive his right to a termination hearing. In response, Father
stated he had changed his mind and wanted to contest the severance
petition. The court, however, denied Father’s request to withdraw his
waiver, stating that Father previously waived his right to a termination
hearing. The court then obtained a factual basis and terminated Father’s
rights. Father timely appeals.

DISCUSSION

¶5 Father argues the juvenile court erred in denying his request
to withdraw his waiver. Father contends that pursuant to Rule 66(D)(1) of
the Rules of Procedure for the Juvenile Court, the court could not accept his
waiver until it obtained a factual basis to support termination. As a result,
he asserts he could withdraw his waiver at the January hearing because the
juvenile court had not completed the waiver process prescribed by Rule 66.

¶6 We review “questions involving the interpretation of court
rules” de novo and “evaluate procedural rules using principles of statutory
construction.” Haroutunian v. Valueoptions, Inc., 218 Ariz. 541, 544, ¶ 6 (App.

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 TIMOTHY W. v. DCS, M.W.
Opinion of the Court

2008) (internal quotations and citation omitted). “[W]e interpret court rules
‘in accordance with the intent of the drafters, and we look to the plain
language of the . . . rule as the best indicator of that intent.’” Id. (quoting
Fragoso v. Fell, 210 Ariz. 427, 430, ¶ 7 (App. 2005). 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.” Tina T. v. Dep’t of Child Safety,
236 Ariz. 295, 298-99, ¶ 15 (App. 2014).

¶7 If a parent wishes to waive his right to a severance hearing,
he must advise the juvenile court that he admits or does not contest the
allegations in the severance petition. Ariz. R.P. Juv. Ct. 66(D)(1). Rule
66(D)(1) states that “[i]n accepting an admission or plea of no contest, the
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.

¶8 The use of the word “shall” means the requirements of Rule
66 (D)(1) are mandatory. See In re Maricopa County Sup. Ct. No. MH2003-
000240, 206 Ariz. 367, 369, ¶ 7 (App. 2003) (“Courts ordinarily interpret
‘shall’ to mean the provision is mandatory.”). The plain language of Rule
66 states that a parent’s waiver cannot be accepted before the court has
determined there is a sufficient factual basis to support termination. See
State v. Page, 115 Ariz. 156, 157 (1977) (stating that a plea of guilty or no
contest cannot be accepted until the court determines there is a factual basis
for the plea); see also Ariz. R. Crim. P. 17.3 (same).

¶9 Here, the juvenile court denied Father’s motion to withdraw
on the grounds his waiver from the October hearing was final and accepted.
This determination was an abuse of discretion. Father moved to withdraw
before the court obtained a factual basis; as a result, the waiver was not final
and could not be accepted by the court. See State v. Ross, 214 Ariz. 280, 283,
¶ 21 (App. 2007) (“An abuse of discretion exists when the trial court

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 TIMOTHY W. v. DCS, M.W.
Opinion of the Court

commits an error of law in the process of exercising its discretion.”)
(quoting Fuentes v. Fuentes, 209 Ariz. 51, 56, ¶ 23 (App. 2004)).

¶10 Because Father’s waiver was not final and properly accepted,
he was not required, as DCS contends, to show manifest injustice before he
could withdraw his waiver. See Ariz. R. Crim. P. 17.5 (requiring a showing
of manifest injustice to withdraw from a plea after the court has accepted
the plea). As in a criminal case, Father could withdraw his waiver without
showing manifest injustice at any time before the waiver was properly
accepted by the court. See State v. Morse, 127 Ariz. 25, 31-32 (1980) (stating
that a plea agreement can be revoked by any party at any time prior to its
acceptance by the court); Ariz. R. Crim. P. 17.4(b) (same).

CONCLUSION

¶11 For the above reasons, we reverse the juvenile court’s order
denying Father’s motion to withdraw his waiver. Additionally, we reverse
the severance of Father’s parental rights and remand for a severance
hearing.

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