Jimmy N., Vashti H. 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JIMMY N., VASHTI H.,
Appellants,

v.

DEPARTMENT OF CHILD SAFETY, E.H., M.H.,
Appellees.

No. 1 CA-JV 21-0164
FILED 11-23-2021

Appeal from the Superior Court in Maricopa County
No. JD39449 / JS20575
The Honorable Robert Ian Brooks, Judge

REVERSED, VACATED, AND REMANDED

COUNSEL

David W. Bell Attorney at Law, Higley
By David W. Bell
Counsel for Appellant Jimmy N.

John L. Popilek, PC, Scottsdale
By John L. Popilek
Counsel for Appellant Vashti H.

Arizona Attorney General's Office, Tucson
By Jennifer R. Blum
Counsel for Appellee
 JIMMY N., VASHTI H. v. DCS et al.
Decision of the Court

MEMORANDUM DECISION

Judge James B. Morse Jr. delivered the decision of the Court, in which
Presiding Judge D. Steven Williams and Judge David B. Gass joined.

M O R S E, Judge:

¶1 Jimmy N. and Vashti H. appeal the juvenile court's order
denying their requests to withdraw no-contest pleas in a termination
proceeding. For the following reasons, we reverse, vacate, and remand.

FACTS AND PROCEDURAL BACKGROUND

¶2 Jimmy N. ("Father") and Vashti H. ("Mother") (collectively,
"Parents") are biological parents of M.H., born in 2020. Mother has another
child E.H., born in 2019.1

¶3 In April 2020, M.H. presented at a hospital with multiple
injuries, including various fractures. The Department of Child Safety
("DCS") was notified, implemented a present danger plan, and in May, filed
a dependency petition as to both children. In June, M.H. arrived at a
different hospital with additional injuries—including multiple subdural
head bleeds—and was having seizures. DCS learned Parents had been
living with the children in violation of DCS' safety plan and subsequently
moved to terminate Mother's and Father's parental rights.

¶4 At a combined dependency and termination adjudication in
February 2021, the juvenile court noted that Parents "wish to enter a no
contest plea regarding the allegations in the dependency and severance
petitions" and found, after speaking with Parents, that they "understand
their rights and have knowingly, intelligently, and voluntarily chosen to
waive their right to a trial and enter a no contest plea regarding the
allegations in both the dependency and the severance petitions." The court
found M.H. and E.H. dependent and took the termination under
advisement, but stated it "intend[ed] to grant the termination motion." The
court ordered DCS to "lodge proposed Findings of Fact, Conclusions of
Law, and Order to the Court," noting the "order terminating parental rights
w[ould] be final upon the signing and filing of said Order."

1 E.H.'s biological father is not a party to this appeal.

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Decision of the Court

¶5 Before the juvenile court signed a termination order, Parents
sent separate but nearly identical letters to the court, declaring they did "not
consent to the severance of [their] family" and want "an appeal to
severance" of their parental rights. Parents wrote that their lawyers
pressured them into entering the no-contest pleas, the no-contest pleas were
"not explained to [them] in full detail," and their lawyers were "unprepared
for a trial if [they] had decided to proceed with one."

¶6 After receiving Parents' letters, the juvenile court scheduled a
hearing and ordered the parties to provide briefing on the legal standard to
apply to a request to withdraw a no-contest plea. None of the parties
submitted the requested briefing.

¶7 Evaluating Parents' requests, the juvenile court took "as
instructive Rule 17.5 of the Rules of Criminal Procedure that provides that
a 'court may allow a defendant to withdraw a plea of guilty or no contest if
it is necessary to correct a manifest injustice.'" Applying that standard, the
court found "withdrawal of the parents' prior waiver and no contest plea
[was] not necessary to correct a manifest injustice." After declining to set
aside the no-contest pleas, the court found, based on evidence presented at
the prior hearing, that DCS proved the abuse and neglect grounds for
termination by clear and convincing evidence, and termination was in the
best interests of the children by a preponderance of the evidence. The
juvenile court then granted the termination motion.

¶8 Mother and Father timely appealed the termination of their
parental rights. We have jurisdiction under A.R.S. §§ 8-235(A), 12-
120.21(A)(1), and -2101(A)(1).

DISCUSSION

¶9 Parents do not challenge the dependency. Instead, Parents
argue on appeal that the juvenile court erred in denying their requests to
withdraw the no-contest pleas before terminating their parental rights.
Specifically, they argue the juvenile court erred in: 1) applying the "manifest
injustice" standard from Arizona Rule of Criminal Procedure 17.5 to
address their requests to withdraw a plea of no contest; and 2) failing to
appoint new counsel to represent them in the proceedings on their motions
to set aside the pleas of no contest.

A. Rule 66(D)(1).

¶10 Arizona Rule of Procedure for the Juvenile Court ("Rule")
66(D)(1) addresses no-contest pleas in termination proceedings. We review

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the interpretation of court rules de novo. Haroutunian v. Valueoptions, Inc.,
218 Ariz. 541, 544, ¶ 6 (App. 2008). In interpreting a court rule, we apply
general principles of statutory construction and begin with the plain
language of the rule. State v. Silva, 222 Ariz. 457, 460, ¶ 13 (App. 2009).

¶11 When a parent enters a no-contest plea, the juvenile court
does not automatically terminate their parental rights. See Ariz. R.P. Juv.
Ct. 66(D)(1); Tina T. v. Dep't of Child Safety, 236 Ariz. 295, 299, ¶ 16 (App.
2014), abrogated on other grounds by Sandra R. v. Dep't of Child Safety, 248 Ariz.
224 (2020). Instead, the court must comply with the procedures provided
by Rule 66(D)(1):

In 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.

¶12 Rule 66(D)(1)'s provisions are mandatory before accepting a
plea of no contest. Timothy W. v. Dep't of Child Safety, 240 Ariz. 231, 232, ¶ 8
(App. 2016) (citing In re MH2003–000240, 206 Ariz. 367, 369, ¶ 7 (App. 2003)
("Courts ordinarily interpret 'shall' to mean the provision is mandatory.")).
And a party can freely withdraw a no-contest plea until it has been accepted
as final. See id. at 232-33, ¶¶ 9-10.

¶13 Here, the juvenile court found that "[P]arents underst[oo]d
their rights" and "knowingly, intelligently, and voluntarily chose[] to waive
their right to a trial and enter a no contest plea." However, Parents argue
that the court had not found a factual basis for termination and, therefore,
had not accepted their no-contest pleas before they attempted to withdraw
them. We agree.

B. Determining a Factual Basis.

¶14 A plea is not properly accepted until the juvenile court
determines a sufficient factual basis supports termination. See Timothy W.,
240 Ariz. at 232, ¶ 8 ("The plain language of Rule 66 states that a parent's
waiver cannot be accepted before the court has determined there is a

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Decision of the Court

sufficient factual basis to support termination."); see also Tina T., 236 Ariz. at
299, ¶ 16 (noting "the purpose of requiring the juvenile court to determine
whether a factual basis exists to support termination under Rule 66(D)(1) is
to ensure that parents do not lose their parental rights solely based on their
unwillingness to contest the allegations of the petition").

¶15 Here, Parents sought to withdraw their no-contest pleas after
the dependency and termination hearing in February. During that hearing,
DCS presented its case and the court found the allegations in the
dependency petition were true by a preponderance of the evidence and "a
factual basis [existed] to support a finding of dependency." The juvenile
court, however, took the termination matter under advisement. The court
noted that it "intend[ed] to grant the termination motion" but stated it was
going to "review the material" and "issue a Ruling by separate minute
entry."

¶16 Notably, the juvenile court had not expressly determined
there was a sufficient factual basis to support termination of Mother's and
Father's parental rights. The state invites us to rely on the court's finding of
sufficient proof of a factual basis for the dependency, but that finding is not
the same as sufficient proof for termination. Compare A.R.S. § 8-533(B)
(grounds for termination), and A.R.S. § 8-537(B) (requiring clear and
convincing evidence to prove grounds for termination), with A.R.S. § 8-
201(15) (grounds for dependency), and A.R.S. § 8-844(C)(1) (requiring proof
by a preponderance of the evidence for dependency).

¶17 Before accepting the no-contest pleas, the juvenile court was
required to expressly determine whether the factual basis was sufficient to
support termination of parental rights. See In re Amber S., 225 Ariz. 364,
368–69, ¶¶ 13, 16 (App. 2010) (noting that a rule providing "the court shall
determine" required an express finding (quoting Ariz. R.P. Juv. Ct. 19.1));
see also Ruben M. v. Ariz. Dep't of Econ. Sec., 230 Ariz. 236, 240, ¶ 24 (App.
2012) ("The primary purpose for requiring a court to make express findings
of fact and conclusions of law is to allow the appellate court to determine
exactly which issues were decided and whether the lower court correctly
applied the law."). Because no such finding was made, Parents' pleas had
not been accepted, and they should have been allowed to withdraw their
pleas. Timothy W., 240 Ariz. at 232-33, ¶¶ 9-10.2

2 Because we reverse, we need not address Parents' additional
arguments or determine whether the "manifest injustice" standard applies

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Decision of the Court

CONCLUSION

¶18 For the forgoing reasons, we reverse the juvenile court's
decision denying Parents' requests to withdraw pleas of no contest. We also
vacate the juvenile court's order terminating parental rights and remand
the matter to the juvenile court for further proceedings consistent with this
decision.

AMY M. WOOD • Clerk of the Court
FILED: AA

to requests to withdraw pleas that have been accepted in termination
proceedings.

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