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Timothy W. v. Department of Child Safety, M.W.

Court of Appeals of Arizona, First Division, Division One

June 30, 2016

TIMOTHY W., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, M.W., Appellees.

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

          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

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

          OPINION

          GOULD, 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. 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. Dept 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 ...


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