                              IN THE
             ARIZONA COURT OF APPEALS
                          DIVISION TWO


        RENE CASTRO, GUARDIAN AD LITEM FOR MINOR, C.C.
                         Petitioner,

                                 v.

                    HON. PETER W. HOCHULI,
           JUDGE PRO TEMPORE OF THE SUPERIOR COURT
                   OF THE STATE OF ARIZONA,
                IN AND FOR THE COUNTY OF PIMA
                          Respondent,

                                and

                               C.C.,
                       Real Party in Interest.

                     No. 2 CA-SA 2014-0075
                     Filed February 6, 2015

                   Special Action Proceeding
         Pima County Cause Nos. S20140052 and JD201946

        JURISDICTION ACCEPTED; RELIEF GRANTED


                            COUNSEL

The Hopkins Law Office, P.C., Tucson
By Cedric Martin Hopkins
Counsel for Petitioner

Pima County Office of Children’s Counsel, Tucson
By Edith A. Croxen
Counsel for Real Party in Interest
                          CASTRO v. HOCHULI
                           Opinion of the Court



                               OPINION

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


E S P I N O S A, Judge:

¶1          In this case, we consider whether a child’s guardian ad
litem (GAL) has the authority to seek removal of the child’s counsel
based on the allegation that counsel has disregarded the child’s legal
position. Rene Castro, GAL for C.C. in C.C.’s action to terminate the
parental rights of his father Ronald C., seeks review of the
respondent judge’s determination that his motion to substitute
C.C.’s appointed counsel was not ripe for determination. For the
following reasons, we accept jurisdiction and grant relief.

                Factual and Procedural Background

¶2          C.C., born August 2009, was taken into temporary
custody by the Department of Child Safety (DCS)1 in June 2012 after
Ronald fatally shot C.C.’s mother. Although DCS initially filed a
dependency petition, it later informed the respondent judge it did
not wish to proceed with the dependency. At that time, C.C. was



      1 C.C. was initially taken into custody by the Arizona
Department of Economic Security (ADES). Effective May 29, 2014,
the Arizona legislature repealed the statutory authorization for
ADES’s administration of child welfare and placement services
under title 8 and transferred powers, duties, and purposes
previously assigned to those entities to the newly established DCS.
See 2014 Ariz. Sess. Laws 2d Spec. Sess., ch. 1, §§ 6, 20, 54. For
simplicity, our references to DCS in this decision encompass ADES.
Despite currently being C.C.’s legal custodian, Alexander M. v.
Abrams, 235 Ariz. 104, ¶ 11, 328 P.3d 1045, 1047 (2014), DCS has
taken no position in this petition for special action.


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                        Opinion of the Court

substituted as petitioner. 2 DCS was later reinstated as petitioner,
however, and in January 2013, the respondent found C.C.
dependent. In March 2014, C.C. filed a petition to terminate
Ronald’s parental rights. Castro then was appointed C.C.’s GAL.

¶3           During an August dependency review hearing, C.C.’s
counsel informed the respondent judge that C.C. had told her he
wanted to live with Ronald. She asserted, however, that she
believed he had been “prepared [by someone] to give” that
statement. Castro subsequently filed a motion to substitute C.C.’s
counsel, asserting she had a conflict of interest because C.C. had told
several individuals, including his counsel and his therapist, that he
wished to live with Ronald, but that counsel had nonetheless
continued with the termination petition. The respondent denied the
motion without prejudice, determining that issue was not yet ripe
for decision because no hearing on the petition for termination had
been held and Castro thus could not demonstrate prejudice resulting
from counsel’s purported conflict of interest. This petition for
special action followed.

                     Special Action Jurisdiction

¶4           C.C., through appointed counsel, urges us to decline
jurisdiction because Castro, as his GAL, “lacks standing” to seek
special action relief. C.C. argues Castro has sought relief in his
personal capacity instead of “in any representational capacity” for
C.C. that he “might possess,” pointing out that Castro did not list
C.C. as the real party in interest on the caption of the petition for
special action, named himself as the petitioner, and hired his own
counsel to represent him. The clear purpose of Castro’s petition,
however, is to obtain review of the respondent judge’s ruling on his
motion to substitute counsel. C.C. has cited no authority suggesting

      2 Ronald objected and sought removal of C.C.’s former
appointed counsel. The respondent judge reassigned that attorney
as C.C.’s GAL, appointing C.C. new counsel. C.C. sought special
action relief, which this court granted, determining inter alia that
C.C.’s counsel was not eligible to serve as GAL. C.C. v. Hochuli, No.
2 CA-SA 2012-0069 (memorandum decision filed Dec. 7, 2012).


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                       CASTRO v. HOCHULI
                        Opinion of the Court

that minor defects in form require us to decline jurisdiction or deny
relief. And we will not elevate form over substance to avoid the
issues presented here. Cf. Muchesko v. Muchesko, 191 Ariz. 265, 274,
955 P.2d 21, 30 (App. 1997) (treating improper appeal as special
action and accepting jurisdiction to address merits of argument).
Accordingly, we also reject C.C.’s related argument that we should
decline jurisdiction because Castro “has suffered no injury.”

¶5            C.C. further claims, however, that we should decline
jurisdiction because Castro lacks the authority to seek his counsel’s
removal under Rule 40, Ariz. R. P. Juv. Ct. He cites Cecilia A. v.
Arizona Department of Economic Security, 229 Ariz. 286, 274 P.3d 1220
(App. 2012), for the proposition that a GAL “is not authorized to
make decisions on behalf of” the ward “absent a court finding of
incompetency.” That case, however, is distinguishable. There, we
determined a GAL could not file a notice of appeal on behalf of an
adult ward without a finding by the trial court, pursuant to
Rule 40(C), that there were “meritorious reason[s]” to allow the GAL
to act in the best interests of the parent. Id. ¶¶ 9-10. But a GAL is “a
person appointed by the court to protect the interest of a minor or an
incompetent.” A.R.S. § 8-531(7) (emphasis added). Based on the
plain language of that definition, no competency finding is required
before a GAL may act to protect the child’s interest. See In re Jessi
W., 214 Ariz. 334, ¶ 15, 152 P.3d 1217, 1220 (App. 2007) (plain
language of statute “best indication of its meaning”).

¶6           And the nature of the GAL’s role when appointed for
an adult is notably different from when, as here, a GAL is appointed
for a child. Pursuant to Rule 40(C), a GAL appointed as an adult
“parent, guardian, or Indian custodian” must “conduct an
investigation and report to the court as to whether the [person] may
be incompetent and in need of protection.” Only then can the GAL
act on the adult’s behalf. Cecilia A., 229 Ariz. 286, ¶¶ 9-10, 274 P.3d
at 1223. A GAL appointed for a child, in contrast, is immediately
empowered to “protect the interest[s] of the child.” Ariz. R. P. Juv.
Ct. 40(A). That authority necessarily includes the authority to seek
the replacement of the child’s counsel if such action is in the child’s
best interests. And a GAL is authorized to file pleadings when
appropriate. Ariz. R. P. Juv. Ct. 40.1(C). Thus, for the reasons


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                        Opinion of the Court

stated, and because Castro has no “equally plain, speedy, and
adequate remedy by appeal,”3 we accept special action jurisdiction.
Ariz. R. P. Spec. Actions 1.

                    Motion to Substitute Counsel

¶7           We first consider that in his special action petition,
Castro asserts that C.C.’s counsel “has proceeded and is continuing
to proceed in excess of legal authority and has failed to perform a
duty required by law.” This argument recites the standard for
obtaining special action relief pursuant to Rule 3(b), Ariz. R. P. Spec.
Actions. But Castro’s petition, appropriately, names as respondent
the judge who denied his request to substitute counsel, not C.C.’s
counsel, and under Rule 3, the only questions that may be raised
here relate to the respondent’s performance of his duties. See Ariz.
R. P. Spec. Actions 3; see also Ariz. R. P. Spec. Actions 2(a) bar
committee note (special action must be directed to court and
individual judge or board being reviewed). Despite his misdirected
argument, we nonetheless address the issues raised by Castro’s
petition for special action because matters of form, in appropriate
circumstances, may be overlooked if it is in C.C.’s best interests that
we do so. See Nold v. Nold, 232 Ariz. 270, ¶ 10, 304 P.3d 1093, 1096
(App. 2013) (“[I]f the best interests of the child trump the
consequences ordinarily imposed for violations of the rules, then
they should not be ignored under the discretionary doctrine of
waiver.”).

¶8           We disagree with the respondent judge that the
essential issue presented in Castro’s motion—that C.C.’s counsel
was violating her duty to C.C. by proceeding with the litigation—
was not ripe for consideration. 4 That issue can—and should—be

      3Although   C.C. contends Castro has a remedy by appeal, this
argument is difficult to reconcile with C.C.’s position that his GAL is
not empowered to take action on his behalf. In any event, a remedy
by appeal is not adequate because it would be available only after
subjecting C.C. to a termination proceeding.
      4 We  note that Castro couched the issue below in terms of
ineffective assistance of counsel and case law addressing post-

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                       CASTRO v. HOCHULI
                        Opinion of the Court

addressed before the litigation proceeds further because, if Castro
were correct and counsel is removed, 5 the petition to terminate
parental rights might be withdrawn. See Ariz. R. P. Spec. Actions
3(a) (special action relief appropriate if respondent “has failed to
exercise discretion which he has a duty to exercise”). The best
interests of the child are a juvenile court’s “primary consideration in
dependency cases.” Antonio P. v. Ariz. Dep’t of Econ. Sec., 218 Ariz.
402, ¶ 8, 187 P.3d 1115, 1117 (App. 2008); cf. Cardon v. Cotton Lane
Holdings, Inc., 173 Ariz. 203, 210, 841 P.2d 198, 205 (1992) (accepting
special action jurisdiction in part because relief would end litigation
and “spare[] the parties and the judicial system unnecessary time
and expense”). And, when a child is appointed counsel during
termination proceedings, that child is entitled to be represented by
counsel that will advocate for his subjective goals in the litigation.
See In re Yavapai Cnty. Juv. Action No. J-8545, 140 Ariz. 10, 16, 680
P.2d 146, 152 (1984); ER 1.2(a), Ariz. R. Prof’l Conduct, Ariz. R. Sup.
Ct. 42. Furthermore, it would not promote C.C.’s best interests to




conviction relief in the context of criminal proceedings. This
approach was both unnecessary and unhelpful to the respondent
judge, and, indeed, Castro has now abandoned it and faults the
respondent for the analysis he urged below. We nevertheless reach
the merits of the claim because the factual basis and remedy sought
were sufficiently articulated and the best interests of the child are a
paramount concern.
      5C.C.  implies he alone has the authority to seek removal of
appointed counsel. But Castro has been appointed as GAL to
protect C.C.’s best interests, which obviously are implicated if
counsel, as alleged by Castro, was acting in contravention of C.C.’s
expressed wishes by continuing to pursue the termination petition.
Otherwise, the child would have to independently seek counsel’s
removal despite having a GAL assigned to protect his best interests,
but no reasoned basis in law or policy has been identified to adopt
such a position.


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                        CASTRO v. HOCHULI
                         Opinion of the Court

require him to litigate a termination petition that he does not want to
prosecute.6

¶9           C.C. argues that his statements that he wishes to live
with Ronald “cannot establish counsel has disregarded the minor’s
legal position.” We agree that such statements are not necessarily
inconsistent with the pursuit of a petition to terminate parental
rights—C.C. may, for example, wish to live with Ronald but
conclude it is not in his best interests that he do so. C.C.’s
statements, however, are facially inconsistent with termination, and
further investigation is necessary to properly resolve the issue. It is
therefore entirely appropriate for the respondent judge to explore
whether that inconsistency can be reconciled with C.C.’s reported
decision to seek termination of Ronald’s parental rights.7

¶10          And there is no question that, if C.C.’s counsel has acted
in contravention of C.C.’s wishes, she would be subject to removal.
A child’s counsel has a duty to represent the child in light of the
child’s decisions about the objectives of the litigation.8 See ER 1.2(a),

      6If the respondent judge were to conclude that termination is
in C.C.’s best interest, he has the option of ordering DCS, C.C., or
Castro to file a motion to terminate Ronald’s parental rights. See
A.R.S. § 8-862(D); Ariz. R. P. Juv. Ct. 64(A).
      7We   need not, and do not, determine the minimum showing a
GAL must make for a prima facie case that child’s counsel should be
removed. We conclude only that the showing made here is
sufficient to require determination by the respondent judge whether
good cause exists to remove counsel. Cf. State v. Torres, 208 Ariz.
340, ¶ 6, 93 P.3d 1056, 1058 (2004) (criminal defendant entitled to
new counsel if “there is a complete breakdown in communication or
an irreconcilable conflict between a defendant and his appointed
counsel.”); State v. Schaaf, 169 Ariz. 323, 330, 819 P.2d 909, 916 (1991)
(attorney permitted to withdraw upon showing of good cause).
      8 Counsel may, of course, advise the child to follow a
particular course of action. And we do not suggest counsel cannot
attempt to reconcile and resolve with the child changes in his or her
expressed goals.


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                        CASTRO v. HOCHULI
                         Opinion of the Court

Ariz. R. Prof’l Conduct, Ariz. R. Sup. Ct. 42 (“[A] lawyer shall abide
by a client’s decisions concerning the objectives of representation
and . . . shall consult with the client as to the means by which they
are to be pursued.”); cf. ER 1.14(a) (lawyer “shall, as far as
reasonably possible, maintain a normal client-lawyer relationship
with . . . client” having diminished capacity); American Bar
Association Standards of Practice for Lawyers who Represent
Children in Abuse and Neglect Cases § A-1 (1996) (“ABA Standards”)
(child’s attorney “provides legal services for a child and . . . owes the
same duties . . . to the child as is due an adult client”).9 An attorney
appointed to represent a child in a dependency proceeding has an
obligation to seek appointment of a guardian ad litem if the child
cannot express a preference or if that expressed preference would
injure the child. See ER 1.14(b); ABA Standards § B-4(1), (3).10

¶11          In contrast, a guardian ad litem may make decisions in
the child’s best interests irrespective of the child’s expressed wishes.
See Ariz. R. P. Juv. Ct. 40(A) (guardian ad litem appointed “to
protect the interests of the child”); ABA Standards § A-2 (guardian ad
litem “is an officer of the court appointed to protect the child’s

      9The  comment to Rule 40.1, Ariz. R. Juv. Ct., notes the Arizona
Supreme Court relied on the ABA Standards and other national
standards “[i]n developing the Standards on which this rule is
based” and further directs “attorneys and guardians ad litem [to] be
familiar with and consult these national standards and references.”
We therefore consider those standards instructive in determining the
role of counsel and guardians ad litem in dependency actions and in
our interpretation of the rules applicable in this case. Cf. Aksamit v.
Krahn, 224 Ariz. 68, ¶ 14, 227 P.3d 475, 478-79 (App. 2010) (relying on
ABA Standards in interpretation of family law rules).
      10 We  recognize the difficulties that may be encountered in
communicating with a four-year-old client about critical litigation
decisions with potentially lifelong consequences, and that a child’s
expressions regarding those choices may be fluid at times. We also
note that, based on the record before us, it appears C.C.’s counsel
has in good faith attempted to represent her client in conformance
with her interpretation of governing ethical rules.


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                        CASTRO v. HOCHULI
                         Opinion of the Court

interests without      being    bound    by    the   child’s   expressed
preferences”).

¶12            C.C. also expresses concern that investigation into the
reasons for prosecuting the petition for termination will infringe on
his right to confidential communications with his counsel. This
argument presumes that, in order to demonstrate counsel has acted
in conformance with C.C.’s wishes, counsel will be required to
explain why C.C. has decided to pursue termination of Ronald’s
parental rights. But we are not convinced the attorney-client
privilege would necessarily encompass the motive for pursuing the
petition, nor have we been provided any reason C.C. could not
inform the respondent judge of that motive in camera if necessary.
See Upjohn Co. v. United States, 449 U.S. 383, 395-96 (1981) (attorney-
client privilege “only protects disclosure of communications; it does
not protect disclosure of the underlying facts by those who
communicated with the attorney”); State ex rel. Hyder v. Superior
Court, 128 Ariz. 253, 255, 625 P.2d 316, 318 (1981) (attorney not
required to produce subpoenaed document only if “the document
was transferred to the attorney to further his legal advice and if the
client himself would be privileged from producing the document”);
cf. State ex rel. Babbitt v. Arnold, 26 Ariz. App. 333, 336, 548 P.2d 426,
429 (1976) (trial court may conduct in camera review of privileged
materials).

                               Disposition

¶13          For all of the foregoing reasons, we accept jurisdiction
and grant relief. The respondent judge is directed to investigate the
allegation that counsel is acting in contravention of C.C.’s wishes by
pursuing the petition to terminate Ronald’s parental rights, and to
determine whether C.C.’s counsel should therefore be removed and
new counsel substituted.




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