                                                                          FILED BY CLERK
                             IN THE COURT OF APPEALS                         NOV -7 2007
                                 STATE OF ARIZONA
                                                                              COURT OF APPEALS
                                   DIVISION TWO                                 DIVISION TWO



JOHN M.,                                       )
                                               )          2 CA-JV 2007-0029
                                Appellant,     )          DEPARTMENT B
                                               )
                   v.                          )          OPINION
                                               )
ARIZONA DEPARTMENT OF                          )
ECONOMIC SECURITY and                          )
SHANNON M.,                                    )
                                               )
                                Appellees.     )
                                               )


            APPEAL FROM THE SUPERIOR COURT OF PINAL COUNTY

                                 Cause No. JD200600031

                           Honorable Joseph R. Georgini, Judge

                                        AFFIRMED


Richard Scherb                                                                     Florence
                                                                     Attorney for Appellant

Terry Goddard, Arizona Attorney General
 By William V. Hornung                                                            Tucson
                                                           Attorneys for Appellee Arizona
                                                         Department of Economic Security


V Á S Q U E Z, Judge.

¶1            John M. appeals from the juvenile court’s April 30, 2007, order, entered after

a contested severance hearing, terminating his parental rights to his daughter, Shannon, born

in October 2004, on the grounds that he had neglected or wilfully abused a child, A.R.S.
§ 8-533(B)(2), and had substantially neglected or wilfully refused to remedy the

circumstances that had caused Shannon to be in an out-of-home placement for nine months

or longer, A.R.S. § 8-533(B)(8)(a). On appeal, John maintains the termination order should

be reversed on the ground of ineffective assistance of counsel. He contends his attorney’s

conduct denied him a meaningful opportunity to be heard, and therefore violated his right

to due process, and that he is entitled to a new severance hearing.

                                       Background

¶2            John does not challenge the sufficiency of the evidence presented at the

severance hearing that supported the following course of events. John is Shannon’s

biological father, and Shannon’s mother, Tiffany, is John’s stepdaughter. Tiffany was

fourteen years old when Shannon was born. After the Pinal County Sheriff’s Department

received and investigated a report about underage drinking at John’s home during the last

weekend in February 2006, John and his wife, Kitty M., Tiffany’s mother, were arrested for

public indecency, indecent exposure, and luring, exploiting, and furnishing harmful material

to minors. The Arizona Department of Economic Security (ADES) removed Tiffany and

Shannon from the home on February 27, 2006, and they have remained out of the home

since then. They are currently placed with foster parents who wish to adopt them.

¶3            Before and after John’s arrest, Tiffany and other children told detectives and

employees of Child Protective Services that in late February 2006 and on other occasions

they had been served alcohol at John’s home; they had engaged in games of “truth or dare”

with John and had exposed themselves while John photographed them; John and Kitty had

“dance[d] naked” in front of them; and John had masturbated while the children watched.

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According to Tiffany, sixteen-month-old Shannon had been present when these events

occurred. Tiffany also reported that she had been having sexual relations with John since

she was eleven or twelve.

¶4            The state filed a dependency petition and petition to establish paternity in

March 2006, and in June, John submitted to the dependency petition without contest,

contending he was “willing but unable” to properly parent Shannon.1 At the permanency

hearing, the juvenile court ordered that Shannon’s case plan, as to John, would be severance

of parental rights and adoption. ADES filed a motion to terminate John’s parental rights to

Shannon in December 2006, alleging he had neglected or wilfully abused her. A contested

hearing on the motion commenced in April 2007.

¶5            When the severance hearing began, John was awaiting trial on fifty felony

charges, including sexual conduct with a minor, sexual indecency, sexual exploitation of a

minor, luring, providing harmful materials to a minor, and weapons offenses. Consistent

with the advice of his counsel, John did not testify at the severance hearing. At the

beginning of the hearing, John’s attorney advised the juvenile court that he had “discussed

. . . a number of different issues” with his client. He said he would be objecting to exhibits

attached to reports that had “not been substantiated,” such as certain test results; he noted

John’s continuing objection to the court’s refusal to disclose information about Shannon’s

placement; and he moved to continue the hearing until after the pending criminal charges

were resolved, informing the court that John might also want new counsel appointed. After


       1
        Based on paternity tests, the court subsequently found John to be Shannon’s
biological father.

                                              3
the juvenile court denied the motion to continue, John stated, “That’s it,” demanded that

sheriff’s officers “take [him] back,” and left the courtroom. After the court ordered John to

return to the courtroom and admonished him to remain, John asked that his attorney be

removed from his case, contending that

              [Counsel] hasn’t done anything. I sit here with a stack of
              discovery in front of me I have not had a chance to read through
              at all. He’s never sent me one piece of discovery since he’s
              been my attorney; therefore, I come in blind into this—this
              hearing, and yet everything that I ask for is denied, denied,
              denied.

¶6            After the court denied his request for new counsel, John asked the court to

continue the hearing so he could personally review documents, telling the court, “I don’t

know what to say, Your Honor, because I haven’t read the discovery. I don’t know what’s

being said about me and I don’t know what’s not being said about me.” The court denied

the request and expressed its doubts about John’s protests, noting:

              I’m sure you have some idea as to what the matters of this
              petition and motion are. You’ve been present at prior
              proceedings. You’re aware of the dependency that was filed.
              I believe you have some idea as to why you’re here.

¶7            At the end of the hearing, John’s attorney orally moved to dismiss the

proceeding on the ground that ADES had failed to show the acts had occurred in Pinal

County. He also argued that Shannon had been thriving when she was removed from John’s

home; that no evidence suggested she had been physically abused; and that statements made

by Tiffany and the other minors, while possibly sufficient to support a probable cause

determination in John’s criminal case, did not provide clear and convincing evidence to

support termination of parental rights under § 8-533. The juvenile court denied John’s

                                             4
motion to dismiss and found ADES had sustained its burden of proving the grounds for

terminating his parental rights that were alleged in its motion, as amended.2

                                         Discussion

¶8            On appeal, John does not identify specific trial errors made by counsel but

argues only that he was “denied an adequate opportunity to be meaningfully heard because

he was not consulted or prepared for the hearing by his appointed counsel.” John

recognizes that when reviewing ineffective assistance claims in criminal cases, Arizona courts

employ the standard announced in Strickland v. Washington, 466 U.S. 668, 104 S. Ct.

2052 (1984), and that under that test, a party must show both that counsel’s representation

fell below prevailing professional norms and that a reasonable probability exists that, but

for counsel’s errors, the result of the proceeding would have been different. Strickland, 466

U.S. at 690, 694, 104 S. Ct. at 2066, 2068. He maintains, however, that Strickland’s “Sixth

Amendment test” is inappropriate for claims of ineffective assistance of counsel in

termination proceedings because they are civil in nature and involve a parent’s interest in the

care and custody of his or her child, not the personal liberty interest at stake in a criminal

trial. In support of his argument, John relies heavily on Donald W., Sr. v. Arizona

Department of Economic Security, 215 Ariz. 199, 159 P.3d 65 (App. 2007), but the

supreme court has since vacated relevant portions of the decision and redesignated the



       2
        ADES amended its motion for termination of John’s parental rights on March 8,
2007, and again during trial. As amended, the motion alleged that John had neglected or
wilfully abused a child, see A.R.S. § 8-533(B)(2), and had substantially neglected or
wilfully refused to remedy the circumstances that had caused Shannon to be in an out-of-
home placement for nine months or longer, see § 8-533(B)(8)(a).

                                              5
remaining portions as a memorandum decision.            Ariz.     ,    P.3d       (October 19,

2007). Consequently, we do not consider that decision. See Ariz. R. Civ. App. P. 28(c)

(memorandum decision not regarded as precedent); Ariz. R. P. Juv. Ct. 88(G) (adopting Rule

28, Ariz. R. Civ. App. P.); see also Walden Books Co. v. Dep’t of Revenue, 198 Ariz. 584,

¶¶ 20-23, 12 P.3d 809, 814 (App. 2000) (discussion of rule).

¶9            In lieu of the Strickland standard, John proposes we consider whether a parent

claiming ineffective assistance of counsel has been denied due process, which he frames as

“an adequate opportunity to be heard in a meaningful manner,” as the result of counsel’s

conduct. John contends counsel failed to communicate with him about the termination

hearing and failed to provide him with copies of documents disclosed by ADES and that

these alleged failures require reversal of the juvenile court’s termination order. He does not

attempt to show that his attorney’s alleged inadequacies were material to the result of his

termination hearing, and therefore prejudicial, but argues only, “[w]hen counsel is

ineffective, the entire adversarial process is undermined.”

¶10           In its answering brief, ADES urges us to reject Donald W.; that is no longer

an issue. ADES contends, in any event, that John’s argument that a termination proceeding

does not implicate the Sixth Amendment is a “distinction without a difference” that does not

justify rejection of Strickland’s “reasoned, efficacious, and long-standing” test for evaluating

an effective assistance of counsel claim. ADES urges us to apply the Strickland standard

and, because John has failed to show how any alleged errors by counsel prejudiced his

defense, affirm the juvenile court’s termination order.



                                               6
¶11           In Arizona State Department of Public Welfare v. Barlow, 80 Ariz. 249, 253,

296 P.2d 298, 300 (1956), our supreme court held the denial of a parent’s request to be

represented by retained counsel in a dependency hearing violated due process, and Division

One of this court has relied on Barlow to conclude that appointment of counsel in a

severance proceeding is not merely required by statute, but a matter “of constitutional

dimension.” Daniel Y. v. Ariz. Dep’t of Econ. Sec., 206 Ariz. 257, ¶¶ 12, 14, 77 P.3d 55,

58 (App. 2003). Since Barlow was decided, however, the Supreme Court has held that the

Due Process Clause of the United States Constitution does not require appointment of

counsel for every indigent parent facing termination of his parental rights. Lassiter v. Dep’t

of Soc. Servs. of Durham County, N.C., 452 U.S. 18, 31-32, 101 S. Ct. 2153, 2161-62

(1981). Regardless of the origin of a parent’s right to appointed counsel in Arizona, neither

Barlow nor Lassiter addressed the question raised here: Does ineffective assistance of

counsel justify reversal of a juvenile court’s order terminating parental rights and, if so,

under what circumstances?

¶12           Few Arizona cases have considered this question at all, and none has squarely

addressed it. Cf. Santa Cruz County Juv. Dep. Action Nos. JD-89-006 and JD-89-007, 167

Ariz. 98, 101, 804 P.2d 827, 830 (App. 1990) (assuming without deciding that ineffective

assistance of counsel “is properly raised in the context of a dependency proceeding”). We

have previously affirmed a juvenile court’s termination of parental rights where a parent

failed to establish that her counsel’s performance was both incompetent and prejudicial. See

In re Pima County Severance Action No. S-2397, 161 Ariz. 574, 578, 780 P.2d 407, 411

(App. 1989) (counsel’s failure to call certain witnesses appeared to be “sound tactical

                                              7
decision”; no evidence to suggest prejudice). And, where a father appealed on the ground

that he had been “improperly notified of the wrong [severance] hearing dates” and therefore

denied due process, Division One of this court remanded the case to the juvenile court so

that it could determine if the father “was not properly notified of the hearings or . . . was not

given effective assistance of counsel.” In re Maricopa County Juv. Action No. JS-4942, 142

Ariz. 240, 241-42, 689 P.2d 183, 184-85 (App. 1984). But no Arizona court has reversed

a termination order, on the sole ground of ineffective assistance of counsel, based on the

record on appeal. But see In re Gila County Juv. Action No. J-3824, 130 Ariz. 530, 532-

33, 536, 637 P.2d 740, 742-43, 746 (1981), overruled on other grounds, In re Pima

County Juv. Action No. S-919, 132 Ariz. 377, 646 P.2d 262 (1982) (reversal warranted by

juvenile court’s failure to appoint guardian ad litem for mother as required by statute;

appointment of counsel did not constitute substantial compliance with statute where counsel

was ineffectual).

¶13           Other states have reached varying conclusions about whether ineffective

assistance of counsel provides a ground for relief in an appeal of a termination order and,

if so, the appropriate means of evaluating such a claim. Compare, e.g., S.B. v. Dep’t of

Children & Families, 851 So.2d 689 (Fla. 2003) (ineffective assistance claim recognized

in appeal of termination order, where right to counsel grounded in state constitution, but not

dependency order, where right to counsel only statutory); In re Heather R., 694 N.W.2d

659, 664-65 (Neb. 2005) (no ineffective assistance of counsel claim in civil juvenile

proceeding; allegation of inadequate representation assessed as due process claim to

fundamentally fair procedure); In re N.D.O., 115 P.3d 223, 224-25 (Nev. 2005) (“no

                                               8
ineffective-assistance-of-counsel claim will lie” where counsel not constitutionally required

under Lassiter; Strickland standard), with In re M.S., 115 S.W.3d 534, 544-45 (Tex. 2003)

(statutory right to counsel includes right to effective counsel; Strickland standard); In re

Geist, 796 P.2d 1193, 1200-01 (Or. 1990) (statutory right to counsel “may prove illusory”

without remedy for ineffective assistance; “fundamental fairness” standard).

¶14           We agree with ADES that we need not disregard the Supreme Court’s analysis

in    Strickland simply because it involved consideration of the Sixth Amendment.

Strickland did not rely on the Sixth Amendment to the exclusion of due process concerns,

but recognized “the Sixth Amendment right to counsel exists, and is needed, in order to

protect the fundamental right to a fair trial . . . guarantee[d] . . . through the Due Process

Clauses.” Strickland, 466 U.S. at 684-85, 104 S. Ct. at 2063.            Thus, in severance

proceedings, as in criminal cases, the “ultimate focus of inquiry must be on the fundamental

fairness of the proceeding whose result is being challenged.” Strickland, 466 U.S. at 696,

104 S. Ct. at 2069; see also Lassiter, 452 U.S. at 24-25, 101 S. Ct. at 2158 (due process

resists precise definition but “expresses the requirement of ‘fundamental fairness’”); State

v. Melendez, 172 Ariz. 68, 71, 834 P.2d 154, 157 (1992) (“The touchstone of due process

under both the Arizona and federal constitutions is fundamental fairness.”).

¶15           We do not agree, however, that distinctions between criminal trials and

termination proceedings are necessarily irrelevant to the standard to be applied. Unlike a

criminal proceeding, which implicates the personal liberty interest of a criminal defendant,

a termination proceeding involves more than a parent’s fundamental liberty interest in the

care, custody, and control of his child. See Kent K. v. Bobby M., 210 Ariz. 279, ¶ 34, 110

                                              9
P.3d 1013, 1018 (2005). The child’s interests in stability, safety, security, and a normal

family home are also at stake, see id., as well as the “prompt finality that protects” those

interests. In re Pima County Juv. Action No. S-114487, 179 Ariz. 86, 97, 101, 876 P.2d

1121, 1132, 1136 (1994); see also Lehman v. Lycoming County Children’s Servs. Agency,

458 U.S. 502, 513, 102 S. Ct. 3231, 3238 (1982) (denying federal habeas review of

termination pursuant to state statute; “state’s interest in finality is unusually strong”;

uncertainty “detrimental to a child’s sound development”); Lassiter, 452 U.S. at 32, 32 n.7,

101 S. Ct. at 2162 n.7 (“child-custody litigation must be concluded as rapidly as is

consistent with fairness”; noting that “[child] cannot be legally adopted, nor can his status

otherwise be finally clarified, until this litigation ends”).

¶16           The Pennsylvania Superior Court has identified other meaningful distinctions

between criminal trials and severance proceedings, including procedural safeguards available

in both:

              While the standard of proof, clear and convincing evidence, is
              less in termination proceedings than beyond a reasonable doubt
              in criminal proceedings, it is still quite high. Additionally,
              because of the doctrine of Parens Patriae and the need to focus
              on the best interest of the child, the trial judge, who is the fact
              finder, is required to be an attentive and involved participant in
              the process. While he must depend upon the litigants to present
              the evidence to establish the particular elements or defenses in
              the termination case, he is not limited to their presentations, and
              as in any custody case, he may require more than they present
              and direct further investigation, evaluations or expert testimony
              to assure him that the interests of the child and the respective
              parties are properly represented. Under the aegis of the court,
              the role of the lawyer, while important, does not carry the
              deleterious impact of ineffectiveness that may occur in criminal
              proceedings.


                                               10
In re Adoption of T.M.F., 573 A.2d 1035, 1042 (Pa. Super. 1990) (ineffective assistance of

counsel claim prompts review of severance record; if proceedings fundamentally fair, order

supported by evidence, and “result would unlikely have been different” in absence of

counsel’s alleged inadequacy, no remand or rehearing is warranted).

¶17           For the purpose of this case, we need not determine whether Arizona

recognizes ineffective assistance of counsel as a separate ground for relief in an appeal of a

termination order or resolves an allegation of counsel’s inadequacies as a due process claim.

Moreover, assuming Arizona does recognize a separate claim for ineffective assistance of

counsel and, by analogy to Strickland, requires a parent to establish both incompetence and

prejudice, see Pima County No. S-2397, 161 Ariz. at 578, 780 P.2d at 411, we need not

consider here what might be required for a showing of incompetence.

¶18           This case is more readily resolved by John’s failure to show any prejudice

resulting from his counsel’s performance. Cf. State v. Atwood, 171 Ariz. 576, 600, 832 P.2d

593, 617 (1992) (in criminal case, “[i]f an ineffectiveness claim can be rejected for lack of

prejudice, the court need not inquire into counsel’s performance”). We agree with the

majority of states in concluding that no reversal of a termination order is justified by

inadequacy of counsel unless, at a minimum, a parent can demonstrate that counsel’s alleged

errors were sufficient to “undermine confidence in the outcome” of the severance proceeding

and give rise to a reasonable probability that, but for counsel’s errors, the result would have

been different. Strickland, 466 U.S. at 692-94, 104 S. Ct. at 2067-68; N.J. Div. of Youth

and Family Servs. v. B.R., 929 A.2d 1034, 1038-39 (N.J. 2007) (collecting cases adopting

Strickland standard for termination proceedings); cf. Lassiter, 452 U.S. at 32-33, 101 S. Ct.

                                              11
at 2162 (failure to appoint counsel not denial of due process where counsel could not have

made any “determinative difference” in result of severance hearing); Monica C. v. Ariz.

Dep’t of Econ. Sec., 211 Ariz. 89, ¶ 27, 118 P.3d 37, 43 (App. 2005) (failure to provide

parent notice of right to jury trial in severance proceeding not fundamental error where

parent presented no evidence that jury would have decided case differently).

¶19           John has provided no basis for us to conclude that the severance proceedings

in this case were fundamentally unfair; that the result of the hearing is unreliable; or that,

had counsel conducted himself differently, the juvenile court would have reached a different

result. We therefore affirm the juvenile court’s termination of John’s parental rights.



                                           ______________________________________
                                           GARYE L. VÁSQUEZ, Judge

CONCURRING:


________________________________________
PETER J. ECKERSTROM, Presiding Judge


________________________________________
JOSEPH W. HOWARD, Judge




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