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Mental Illness and the Family Law Court System in Arizona

Posted on : September 8, 2016, By:  Christopher Hildebrand
Mental Illness and the Family Law Court System in Arizona

Mental Illness and the Family Law Court System in Arizona

Under Arizona law, a child can be declared dependent if her parent or parents are unable to parent. The court can also sever parental rights to allow for a permanent placement for the child. Does it violate the due process rights of an incompetent parent to hold a severance hearing? Should the court wait until the parent is restored to competency? In the case of Cecilia v. Arizona Dept. of Economic Sec., 274 P.3d 1220 (2012 ), the Court of Appeals considered these questions.

Facts of the Case

A.G., a child of 20-months, was placed in voluntary foster care. Three months later, the Arizona Department of Economic Security (“ADES”) petitioned for a dependency hearing as to A.G.’s mother, Cecilia. The agency claimed neglect and inability to parent due to mental health issues.

Mental Illness in the Family Law Court System in Arizona.

Mental Illness in the Family Law Court System in Arizona.

At the first hearing, the court appointed a guardian ad litem to protect Cecilia’s interests in the proceeding. The court also appointed a guardian for A.G. The court later found A.G. dependent as to Cecilia on the grounds alleged. Two years later, A.G.’s Guardian asked the court to terminate Cecilia’s parental rights.

A.G. had been in an out-of-home placement for more than 15 months. The Guardian claimed that Cecilia probably would not be capable of parenting A.G. in the near future. Cecilia’s guardian told the court that Cecilia was not able to meaningfully assist counsel at the hearing.

The Guardian claimed that it was not in her best interest to hear testimony related to the severance or testify about the matter. Thereafter, the court presided over a severance hearing in which the parties stipulated to exhibits and only the case manager testified.

The court excused Cecilia from the courtroom. The court concluded that severance was warranted and would be in A.G.’s best interests. Cecilia’s guardian appealed.

Jennifer, thank you for being my attorney. I could not have been more pleased with the outcome of my family court hearing. Everything you have done for me throughout this case reflects in the final ruling of the judge. You helped me keep my head together and taught me a lot about myself as a person. I learned so much about my life from observing and listening to you. I will take all the advice you gave me to continue taking responsibility for my choices, continue to put the kids' needs first, and always stay truthful. Your diligence, dedication, and persistence in my case made what seemed impossible, possible. You are a wonderful person and an amazing attorney and I am stronger and more confident because of you.
A Google User
A Google User
20:31 20 Sep 17
I just want to again thank the Firm for working with me all that it has. I could not have done anything without everyone's assistance. You, Chris and Stacey have been and continue to provide me with compassion and hard work towards my case. Also a very special thanks to Kip for taking my case in the beginning. Also continued support from him and his dedication to providing me with his expertise in this matter.
A Google User
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21:41 07 Nov 17
After interviewing several law firms, I came across Jennifer Shick, and her firm, who I hired to represent me for my Family Court case. Jennifer has extensive knowledge of the law and is determined to bring the truth to every issue involved within the case. Throughout my case, Jennifer was prepared meticulously as well as went above and beyond all of my expectations. Even when the other party tried to differ from the truth, lie to the Judge, and turn situations around, Jennifer remained attentive and provided substantial evidence to show the judge the facts as well as the proof to support what was the best interests of my children. Additionally, Jennifer helped me endure many difficult experiences, situations and inspired me to remain positive throughout the entirety of my case. Her kindness, compassion, and professionalism helped me through very difficult times and made the process feel a thousand times lighter on my shoulders. She truly has my children and my best interest at heart and I trust her perspective as well as her honesty on each and every aspect of my case. She lessened the burden on my shoulders and even when I felt like the case was not going to go in my favor, Jennifer was open-minded and reassured me that the Judge would, in fact, see the truth, which he did and the case went in my favor. After nine months of court, everything finally came together. I cannot declare how much Jennifer has been an outstanding attorney. She addressed each and every issue with diligence, she cares about her clients and their families. Jennifer genuinely cares about her clients and her dedication to the details of the case was remarkable. Overall, I am extremely pleased with Jennifer’s services and I am truly thankful that I was so blessed to have her represent my children and me. I highly recommend Jennifer as one of the best attorneys in Arizona and if the situation ever arises, I will definitely have her represent my children and me again.
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Dear Stacey and Kip, How can I ever thank you enough for helping me through the most difficult time in my life? I couldn't put into words my heartfelt gratefulness. You both were so compassionate and professional at every given moment throughout this process with me. I thank you from the bottom of my heart. You helped me to regain my freedom.
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I was a client of Attorney Kevin Park for the dissolution of a divorce in 2016. And since I had never had the need to hire an attorney before for any purpose, I was somewhat apprehensive of the process. But the very calm and professional demeanor of Mr. Park eased my fears. He adeptly answered all my questions and I clearly knew the process and what to expect. And the skilled manner he communicated with opposing counsel was perfect. When it came down to negotiating with my spouse’s counsel, I knew I had selected the best attorney for my situation. What I noticed and appreciated was that he was using just the right amount of pressure with opposing counsel as was necessary. If you find yourself in this situation, you will want a seasoned professional like Mr. Park on your side. I'm very grateful that he was my attorney and not the opposition!
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Chris is a smart and aggressive attorney for his clients. Chris always tries to reach a fair settlement of his cases. I’ve represented clients when Chris was the opposing counsel and while he is professional and amicable to work with, he does not back off on what he needs to do for his client
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I feel that Tracey Van Wickler is certainly one of the best family lawyers around. She is logical, intelligent, and truly cares. Tracey always does what is in the clients best interest, does it well, timely and with integrity. She is good at keeping her clients informed as to what is going on and clear in her communication both written and verbally. I have recommended Tracey to other people and will continue to recommend her. I recommended Tracey to someone who was having issues with their ex-wife and his response was, “I know how good she is because I went up against her and she ate me for lunch”. This same person was so impressed with her, he even recommended her to someone else, WOW, that is impressive! I am exceptionally happy with her attention to detail, her ability to explain things in ways that are easy to understand, as well as her ability to keep everyone focused on the most important things. I would recommend Tracey to anyone who may be in need of her services.
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I retained Hildebrand Law after interview a number of firms in the valley. Working with Michael C. was incredibly easy and informative. My case progressed in such a organized and thought out way to ensure that my needs were met. Michael was incredibly proactive and was able to see far ahead into my case to steer clear of some roadblocks. I would not hesitate to recommend Michael Clancy, and Hildebrand Law in general, to anyone.
Bassam Ziadeh
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I have worked with Hildebrand law for about 8 years. They are always ready to serve, provide guidance and give you a few options. When they provide you options they also take the time to walk you through the pros and cons of each and give you a recommendation of what is best, but will listen to you and support whatever course you choose after making and educated choice. I’d recommend them to my closest friends and feel Chris Hildebrand is now a friend to me.
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21:53 27 Feb 18
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Sam Franchimone
Sam Franchimone
22:09 12 Sep 13

Due Process Rights

Cecilia argues that the juvenile court violated her due process rights by proceeding with the severance hearing. The court had been informed that she didn’t understand the proceedings nor could assist her counsel. Cecilia argues that, because she “was not competent to stand trial” the court erred by proceeding with the severance hearing. She argues that the court should have stayed the proceedings until she could be restored to competency. She cites criminal law cases to support the position.

Mental Illness and Family Law Court System in Arizona.

Mental Illness and Family Law Court System in Arizona.

The Court of Appeals rejected this contention. It noted that the juvenile court never adjudicated Cecilia incompetent. The law requires the appointment of a guardian when reasonable grounds exist to believe a parent “is mentally incompetent or is otherwise in need of a guardian”. A finding of incompetency was not necessary and the court did not make one here.

Second, a mentally incompetent person does not have the same rights in a severance matter as she would as a criminal defendant. A mentally incompetent criminal defendant cannot stand trial until restored to competency. Termination of parental rights in Arizona do not have the same requirement. In fact, the statute suggests that severance proceedings should proceed when a parent is mentally incompetent.

One ground for severance is an inability to parent because of a mental illness or mental deficiency. This indicates that the court is not required to restore the parent to competency before severing the parental rights.

Cecilia contends that due process requires the juvenile court not to conduct a severance hearing until a parent is restored to competency. The Court disagreed. It said that a court must balance a parent’s interest against the child’s interest in having a permanent home.

A parent’s rights cannot be afforded at the expense of a child’s right to a stable parenting situation. Competing interests are properly balanced by holding the hearing but appointing a guardian for the incompetent parent. That procedure occurred in this case.

Disposition

The Court ruled that the juvenile court did not violate Cecilia’s due process rights. It behaved correctly by proceeding with the severance hearing and appointing a guardian to protect Cecilia’s interests. It affirmed the lower court ruling.



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