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Tammy M. v. Department of Child Safety

Court of Appeals of Arizona, Second Division

May 12, 2017

Tammy M., Appellant,
Department of Child Safety and O.E., Appellees.

         Appeal from the Superior Court in Pima County No. JD20150253 The Honorable Brenden J. Griffin, Judge REVERSED AND REMANDED

          Tammy M., Ajo In Propria Persona

          Mark Brnovich, Arizona Attorney General By Cathleen E. Fuller, Assistant Attorney General, Tucson Counsel for Appellee Department of Child Safety

          Presiding Judge Staring authored the opinion of the Court, in which Judge Miller and Judge Espinosa concurred.


          STARING, Presiding Judge

          ¶1 Tammy M. appeals from the juvenile court's November 2016 order terminating her parental rights to O.E., who was born in December 2014, after submission of the matter on the record. As grounds for termination, the court found Tammy was unable to parent effectively due to a history of chronic substance abuse that was likely to continue for a prolonged, indefinite period, see A.R.S. § 8-533(B)(3), and also found she had failed to remedy the circumstances that caused O.E. to be in court-ordered, out-of-home care for longer than fifteen months, see § 8-533(B)(8)(c). On appeal, Tammy argues the Department of Child Safety (DCS) failed to establish by clear and convincing evidence that she suffers from chronic, disabling substance abuse. She also maintains her due process rights were violated when the court, having permitted her attorney to withdraw two days before the severance trial, denied her request for appointed counsel.[1]

         ¶2 Based on the submitted record, we cannot say Tammy has shown the juvenile court abused its discretion in finding the evidence sufficient to terminate her parental rights. But Tammy maintains, and the record supports, that she consented to a "paper trial" only after the court denied her request for new counsel. Because we conclude the court abused its discretion in denying that request, we reverse the termination order and remand the case for further proceedings.

         Relevant Background

         ¶3 This dependency proceeding, originally filed in Maricopa County, was transferred to Pima County in April 2015, and the juvenile court appointed Charles Lagattuta to represent Tammy. The following month, Lagattuta moved to withdraw with Tammy's consent, citing her "extreme dissatisfaction" and a resulting conflict "such that further representation would be impossible." Lagattuta requested the appointment of Cynnamon Arizpuru, who had indicated her availability and willingness to represent Tammy. The court granted Lagattuta's request and appointed Arizpuru as substitute counsel.

         ¶4 In July 2016, DCS filed a motion to terminate Tammy's parental rights. In August, both Arizpuru and counsel for O.E.'s father, Larry E., filed motions to withdraw from representation.[2] In her motion, Arizpuru informed the court that "[t]he Attorney/Client relationship has disintegrated to a point that it is not salvageable, " that she believed Tammy "wishes to represent herself in further proceedings, " and that appointment of either advisory counsel or a guardian ad litem would be appropriate.

         ¶5 According to a minute entry for the hearing held on August 11, 2016, the next scheduled hearing, the juvenile court noted Arizpuru's statement that Tammy had "indicated her wish to represent herself, " questioned both parents, and granted both motions to withdraw, appointing Kasey Coughlin as Tammy's new attorney .[3] In September, the juvenile court scheduled October 26 as the first day of a contested severance trial, stating the set trial dates were "firm" and would not be continued "absent extraordinary circumstances either unforeseen or unavoidable."

         ¶6 On October 13, Coughlin filed a "Motion to be Relieved as Counsel for Mother and Possibly Serve as Advisory Counsel, " asking that she be withdrawn as counsel of record for Tammy. In her motion, she stated her communication with Tammy had broken down to the point that she could "no longer effectively represent" her. She expressed her belief, as had Arizpuru, that Tammy wished to represent herself at the contested severance trial. She did not know if Tammy would want her to serve in an advisory role, but she expressed her willingness to do so.

          ¶7 Tammy did not appear at the October 24 motion hearing, and the juvenile court found no good cause for her absence and granted Coughlin's motion to withdraw. But it directed that Coughlin remain as advisory counsel, ordering her to make good faith efforts to assist Tammy in preparing for trial. The court further ordered Coughlin to "make good faith efforts to continue acting as counsel and trial counsel" if Tammy asked her to do so.

         ¶8Two days later, on the first day of the scheduled severance trial, Tammy asked the juvenile court to appoint counsel and to continue the trial to afford her new attorney time to prepare. When questioned about her request, Tammy said she understood her personality "may be strong, " but she wanted an attorney who would "listen to [her] and proceed the way [she] ask[ed] them to, " in light of the serious consequences at stake. The court sought to clarify that she was asking for additional time because she wanted another attorney, and Tammy responded, "Yes. Yes, please. And I ...

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