The undersigned, individually, provides these comments pursuant to Rule 28, Arizona Supreme Court Rules of Court, to the proposed amendments to various Arizona Rules of Procedure for the Juvenile Court sought by the Petition filed by the Task Force on the Rules of Procedure for the Juvenile Court. Separately, I am the co-author of a comment on one specific Proposed Rule, which will be filed separately and will not be repeated here.
I applaud the effort of the Task Force in revising the Juvenile Court Rules, a vital rule set. The good work of the Task Force is much appreciated and thank you for the efforts to improve and enhance the administration of justice in Juvenile Court. The comments below are provided in that light. Some (if not all) of these comments have been shared informally with members of the Task Force, meaning they may have been considered and rejected before the Task Force filed the Petition. If, however, that consideration has not taken place, I would ask that the Task Force consider these comments in formulating its Reply in support of the Petition. These comments are informed by three years on a Superior Court Juvenile rotation from 2007 to 2010 as well as addressing Juvenile appeals since 2012. These comments are, however, provided individually and do not necessarily reflect the view of any other member of the judicial branch or the Court on which I serve.
Based on the number of the Proposed Rule, the comments are as follows:
• Proposed Rules 205(c) and 208(d) addressing warrants do not require probable cause for issuance of a warrant. Suggest adding a probable cause requirement in all Proposed Rules addressing warrants, as Proposed Rule 224(c) does. See also Ariz. R. Crim. P. 3.1; U.S. Constitution 4th Amendment.
• Although referring to competence, Proposed Rule 208(e), the Proposed Rules do not provide procedural guidance for competency proceedings. Based on a comparable statutory scheme for competency, the Arizona Rules of Criminal Procedure provide procedural directives for competency proceedings. Ariz. R. Crim. P. 11. Suggest adding comparable rules for delinquency and incorrigibility proceedings.
• Proposed Rule 204 (discussing the time to file a delinquency petition) is a restyled carryover of current Rule 25. It is, in substance, a limitations period for what needs to happen before a delinquency petition is filed that is set forth by rule (not statute) that becomes applicable after a juvenile case begins. See Proposed Rule 101(a) (“These rules apply in all juvenile court proceedings, . . .”). Suggest either specifying the authority for Proposed Rule 204 or deleting it. If Proposed Rule 204 is retained, suggest specifying what happens if the deadline (45 + 30 days if further investigation is required) is not met. That would appear to be, either technically or practically, dismissal with prejudice (as it is not clear how the defect could ever be cured), although Proposed Rule 204 and current Rule 25 are silent on the point.
• In referencing (and defining) warrants, the Proposed Rules use non-identical terms that would appear to benefit from further definition or clarity. Proposed Rule 205(c)(1) refers to a “provisional warrant,” with a statement of what such a warrant authorizes, adding that “[a] provisional warrant may also be known as a discretionary warrant, a temporary detention warrant, or by other names.” Proposed Rule 205(c)(2) then uses “[w]arrant” and “warrant for the juvenile’s arrest,” apparently to mean something different from a “provisional warrant.” Elsewhere, the Proposed Rules reference an “arrest warrant.” Proposed Rules 212(b)(2); 218(a) and 224(c) (referencing both “[w]arrant” and “arrest warrant”). Historically, different terms have been used in Juvenile courts for warrants, including “non-mandatory warrant,” “temporary custody warrant” (Arizona or nationwide), “bench warrant” or “arrest warrant.” Suggest a (1) definition of the various warrants being referenced and (2) further consideration of whether using exact terms (rather than what appear to be close synonyms) to describe the different types of warrants would add clarity.
• Suggest, for Proposed Rule 303(a)(3), that the provision be changed to read “The assigned attorney is not attorney of record for purposes of accepting service of process for a parent, guardian, or Indian custodian who HAS NEVER APPEARED IN THE PROCEEDING" (to clarify that it is not the failure to appear at a specific hearing but, instead, having never appeared at any hearing in the proceeding).
• The Proposed Rules reference both “trial” and “adjudication” at different places, which could be read as suggesting the two different terms mean two different things. Suggest (1) defining the terms as meaning the same thing in Proposed Rule 102; (2) using one term (not both) consistently throughout, or (3) if they are intended to mean two different things, defining them accordingly in Proposed Rule 102.
• The Proposed Rules variously refer to “summary judgment,” Proposed Rule 318; “judgment as a matter of law,” Proposed Rule 319; “judgment,” Proposed Rule 603(a)(3)(C); and “final judgment,” Proposed Rule 601(a). The Proposed Rules, however, do not define “judgment” or “final judgment,” and it is unclear what would constitute a “judgment” or a “final judgment” in Juvenile court. Suggest either using a definition (or definitions) to distinguish between the different terms, or using one term to do the work (perhaps using “final order,” which is a defined term) throughout and eliminating references to judgments (Proposed Rule 317 seems to take this latter approach).
• Does a person seeking to revoke that person’s consent to an adoption file a motion or a petition? Proposed Rule 414(a) states “A person seeking to revoke their own consent to adoption of a child must file a petition stating the basis for the relief sought,” but then refers to Proposed Rule 417 for such post-adoption challenges; Proposed Rule 417 states “A person seeking to set aside a final order of adoption must file a motion to set aside the order . . .” Suggest clarifying by adding something in Proposed Rule 414 like “A person seeking to revoke their own consent to the adoption of a child BEFORE ENTRY OF A FINAL ORDER OF ADOPTION must initiate such a challenge by filing a petition stating the basis for the relief sought.”
• Proposed Rule 603(a)(2) & (3) uses 10, 12 and 15 days for various deadlines for certain actions and Proposed Rule 604(b), (c) & (d) uses 5, 7 and 12 days for various deadlines for various other actions. Suggest considering using one common period (or set of periods) to avoid a trap for the unwary while, at the same time, not causing undue delay.
Thank you, again, for all you are doing on this important process. Thank you, also, for considering these comments and I appreciate and applaud the good work of the Task Force.
Samuel A. Thumma
Judge, Arizona Court of Appeals
State Courts Building
1501 West Washington
Phoenix, Arizona 85007
602.452.6790 [email protected]