Opinion
No. 1 CA-JV 15-0202
03-01-2016
IN RE: JARON B.
COUNSEL Maricopa County Attorney's Office, Phoenix By Andrea L. Kever Counsel for Petitioner/Appellant Maricopa County Public Advocate's Office, Phoenix By A. Jason Max Counsel for Defendant/Appellee
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
Appeal from the Superior Court in Maricopa County
No. JV 197521
The Honorable Utiki Spurling Laing, Commissioner
REVERSED AND REMANDED
COUNSEL
Maricopa County Attorney's Office, Phoenix
By Andrea L. Kever
Counsel for Petitioner/Appellant
Maricopa County Public Advocate's Office, Phoenix
By A. Jason Max
Counsel for Defendant/Appellee
MEMORANDUM DECISION
Judge Jon W. Thompson delivered the decision of the Court, in which Presiding Judge Randall M. Howe and Judge Lawrence F. Winthrop joined.
THOMPSON, Judge:
¶1 The State appeals from the juvenile court's dismissal of six delinquency petitions after finding the juvenile could not be restored to competency within the statutory time frame. The State argues the juvenile court erred in failing to exclude from the restoration period times when juvenile was not participating; we agree and reverse.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 Juvenile was born in 2001. He had six delinquency petitions against him from February 2014 to February 2015. Allegations against him ranged from one count each of attempted armed robbery and attempted aggravated robbery, to thirteen counts of burglary in the 3rd degree for shoplifting tobacco. Juvenile also had allegations of shoplifting alcohol, possession of alcohol, and disorderly conduct.
¶3 Juvenile had two competency exams in March 2014, both found him competent. A third competency exam was requested by defense counsel. Before the exam could occur, the State withdrew its objection to juvenile entering the restoration process.
¶4 Restoration education began and in October 2014 an examiner noted "there is a substantial likelihood he can be educated to competency within the statutory period, if he will cooperate with the restoration program and be consistent in his training." A December evaluation found there was a likelihood that he could be restored to competency, but noted juvenile continued to miss sessions and was sleepy at the sessions he did attend. The December report stated "His lack of competence is due to developmental immaturity, a number of missed visit of training more recently, being extremely tired at these sessions and, thus, not being able to fully participate."
¶5 In February 2015, the evaluator noted juvenile had not attended any restoration sessions in January. Juvenile advised the evaluator "the family had been homeless but was now in a home and doing better." The restoration educator stated juvenile was friendly, but tired and difficult to engage. She stated juvenile "would need more time in restoration, as he had progressed very little in the past two months and had not met the objective necessary for competence, in learning the material in the restoration workbook." Juvenile was ordered to appear for restoration education twice weekly. In March 2015, the evaluator made a similar report. He stated juvenile was having difficulty with some of "the more complex concepts in the restoration workbook," but was "capable of learning the material . . . if he can consistently work on the material."
¶6 In April 2015, in the final report, the evaluator stated:
His restoration began on 9/22/14. Since that time he has missed approximately 37 visits. His mother had informed his school that they were not living in their apartment on Dunlap Ave. and were living in a motel on Northern Avenue. In the beginning of January he was not in school, and his restoration educator was unable to reach him. His New Beginnings school informed the educator that Jaron's mother had withdrawn him from the district and had moved out the district's boundaries. Very recently she has been unable to locate the mother. The school where he was to return to this week indicated the mother had not been forthright with the district Homeless Liaison. She had said the school wouldn't accept him or provide transportation. The school told his educator they would accept him again and provide transportation. She indicated she would continue to try to find him and contact him.
The evaluator stated that in the seven month time frame since starting the restoration program juvenile had attended seven or eight sessions. He opined:
there should be a substantial likelihood he can be educated to competency within the statutory period, if he had made any effort to cooperate with the restoration program . . . It is difficult to say whether additional training will bring Jaron to competency, as he has been in the program such a long time and has learned very little. I do not know if it would be worthwhile to continue to try to train him if he cannot be found, keeps moving around, and is uncooperative.
¶7 Jaron's mother told the court "I think the restoration part, a lot of it is my fault too, because we've been homeless a lot," she then went on to explain some of the changes in schools that Jaron had been attending. The State argued "the restoration process can't work unless he actually shows up . . . I would also ask that he be detained, so that we can make him participate in the restoration sessions." The probation department also recommended that the juvenile be detained. The court declined to detain juvenile, noting he had recently been compliant with TASC drug testing and the JETS electronic monitoring device.
¶8 The State filed a motion to exclude time for periods when the juvenile was not participating in his restoration and juvenile responded. At the status hearing on June 4, 2015, the State requested an evidentiary hearing telling the court it wanted to get to the root of the matter, arguing:
You know, we do have a concern that yes, it seems to be on Mom that this didn't happen, but that sets kind of a dangerous precedent that they could evade—people in the future—the judicial process just by Mom not making a juvenile available. Our juveniles all rely upon their parents, under a certain age, to get them places. And if Mom is not cooperating with the system, we don't know whether or not he could have been restored to competency.
¶9 The juvenile court denied the State an evidentiary hearing, denied the State's motion to exclude time, and dismissed the pending six delinquency petitions. This appeal followed.
DISCUSSION
¶10 By statute "'Incompetent' means a juvenile who does not have sufficient present ability to consult with the juvenile's lawyer with a reasonable degree of rational understanding or who does not have a rational and factual understanding of the proceedings against the juvenile." Ariz. Rev. Stat. (A.R.S.) § 8-291(2) (2015). A juvenile determined to be incompetent must be restored to competency within 240 days, or if not restored to competency within such time, the delinquency petitions against the juvenile must be dismissed with prejudice. A.R.S. § 8-291.10(H) (2015).
¶11 The State, citing this court's opinion in In re Eddie O., argues on appeal that the trial court erred in failing to exclude time from the restoration calculation for periods when juvenile was not participating in good faith. 227 Ariz. 99, 103, ¶ 14, 253 P.3d 296, 300 (App. 2011) (interpreting A.R.S. § 8-291.10(H)). In Eddie O., we held that "any time periods for which the State is able to prove the juvenile did not in good faith participate in the restorative process may be excluded from the statutory limit of 240 days." Id.
¶12 The parties agree the standard of review is an abuse of discretion. See In re Wilputte S., 209 Ariz. 318, 320, ¶ 10, 100 P.3d 929, 931 (App. 2004). "'Abuse of discretion' has been defined as an exercise of discretion which is manifestly unreasonable, exercised on untenable grounds or for untenable reasons." Williams v. Williams, 166 Ariz. 260, 265, 801 P.2d 495, 500 (App. 1990). Although the juvenile court has broad
powers to resolve a matter, it may not "misapply the law or a legal principle." Maricopa Cty Juv. Action No. JV-510312, 183 Ariz. 116, 118, 901 P.2d 464, 466 (App. 1995).
¶13 Before dismissing the petitions, the juvenile court attempted to distinguish this case from Eddie O., stating:
I have a 13-year-old child when he began the restoration program and who, through no fault of his own that I can tell, based on my records, and I have a lot of them here, was not at a very stable place. . . . there was a lot of moving around and a lot of inability to locate Jaron, again, not because of Jaron. I don't have reports of him absconding or willfully not participating. . . I don't have reports saying that, on those occasions that he did participate in the restoration, that he was willfully not doing it, he was not participating in good faith . . . I do have that he was tired and quiet and sometime difficult to engage, but not phrased in a way in the previous reports in a way that he was not participating in good faith.
The court found that the "complete lack of cooperation" in the restoration process was "because of the mom."
¶14 We agree with the State that the juvenile court's placement of blame solely on mother for the failure of the restoration process was error. "Plainly, the statute does not contemplate that the juvenile will be permitted to either physically or mentally absent himself or herself from the restoration proceedings." Eddie O., 227 Ariz. at 102, ¶ 10, 253 P.3d at 299. Here, juvenile missed substantially more restoration sessions than he attended. In the few sessions juvenile attended he was tired, "difficult to engage," and had not made progress in his workbook. He and mother were ordered in February to attend sessions twice weekly, but failed to do so. Even assuming Mother's actions or inaction caused the situation, juvenile is not excused. He did not go through the restoration process. "The legislative mandate is that the juvenile 'participat[e].'" Id. at ¶ 11, 253 P.3d at 299. Such did not happen here. In addition, the juvenile apparently committed numerous new offenses while on release and in the restoration process. The court's refusal to detain Jaron negatively impacted the likelihood of restoration.
CONCLUSION
¶15 We reverse the juvenile court, order reinstatement of the six petitions, and remand for further proceedings including the resumption of restoration process.