The Arizona Court of Appeals will hear arguments next week on whether a court-appointed attorney’s failure to file a proper motion, not once but twice, could lead to the reversal of an order terminating a father’s rights.
A three-judge panel will consider oral arguments on Aug. 4 on behalf of Royce C., a Pima County man who claims he lost all rights to his daughter because his public defender did not file the correct motions to have a family court judge reconsider a termination order issued in October 2020.
The Arizona Attorney General’s Office, representing Arizona Department of Child Safety (DCS), has filed a response brief arguing that Royce is not entitled to relief on his ineffective-assistance of counsel claim “because he cannot establish that trial counsel’s performance was deficient or that he was prejudiced as a result of any alleged error.”
According to court records, DCS filed a dependency petition in September 2019 alleging a girl born to Royce and his girlfriend tested positive for substance exposure, that the mother tested positive for drugs, and that Royce “was substantiated as a perpetrator of physical abuse” against a different child in a separate case.
A judge granted DCS an emergency ex-parte order to remove the infant girl from her parents’ care without any advance notice. Over the next year, Royce reportedly attended all seven court hearings scheduled in the case and worked with DCS to comply with a case plan focused on reunification with his child.
However, DCS filed a motion for termination of parent-child relationship on Oct. 6, 2020, citing the mother’s chronic substance abuse and Royce’s “neglect” of the child. The termination or severance of parental rights would allow the young child to be adopted.
The neglect allegation involved Royce’s “failure” to protect the child from the mother’s substance abuse and that he knew the mother that she was placing the child at risk due to her drug use. Royce was also alleged to have failed to participate in individual therapy and failed to take “personal responsibility or make the behavioral changes necessary for reunification.”
On Oct. 30, 2020, neither Royce nor the mother showed up for the termination hearing. Because each of the parents had been informed of the court date, the hearing was conducted in their absence and the judge eventually ruled the DCS allegations “were admitted” as to each parent.
The very next day Royce contacted his attorney with an explanation for his absence. He asked the attorney to have the order of termination reconsidered and set aside based missing the termination hearing due to a scheduling error and that he had actively participated in his case plan and could offer a meritorious defense against the motion for termination.
Royce’s attorney filed a motion for reconsideration on Nov. 6, but days later the judge rejected it, noting the motion did not conform with court rules. The judge even cited the specific court rule that Royce’s attorney needed to comply with.
But when Royce’s attorney made a new filing in the case on Nov. 19, the motion still did not conform to court rules. The judge once again denied the motion in an order docketed Jan. 7, 2021. Royce’s only option at that point was taking the matter to the Arizona Court of Appeals.
On appeal, Royce raised several issues, including a 14th Amendment constitutional challenge. However, what the court of appeals is going to consider Aug. 4 is the issue of whether Royce was prejudiced by ineffective assistance of counsel due to the two motions not complying with Arizona court rules.
“Parents have a fundamental liberty interest in parenting their natural children,” Royce’s new attorney, David Euchner, argued in his opening written brief to the Court of Appeals. “No Arizona case specifies whether a parent’s right to competent representation is based in due process or in the right to counsel. Either way, the right to counsel is meaningless unless it includes the right to competent counsel.”
If Euchner’s arguments are successful, the court of appeals could order the family court judge to accept a properly filed motion for reconsideration.
Court records do not show whether the girl has been adopted, although she was in the care of the mother’s family throughout the case. The mother did not appeal termination of her parental rights.