IN THE 

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION T WO

R ENE C ASTRO
, G UARDIAN AD LITEM FOR MINOR
, C.C.

Petitioner

,

v.

H ON

. P ETER W. H OCHULI
, J UDGE P RO T EMPORE OF THE S UPERIOR C OURT

OF THE S TATE OF A RIZONA
, IN AND FOR THE COUNT Y OF P IMA

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 InterestCASTRO v. HOCHULI Opinion of the Court

2 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) ha s 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, w e 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 i n 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 Effective May 29, 2014, the Arizona legislature repealed the statutory authorization for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

. Desp ite 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.CASTRO v. HOCHULI Opinion of the Court

3 substituted as petitioner. 2 DCS was la ter reinstated as petitioner, however, and i n January 2013 , the respondent found C.C.
de pendent. 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 s he
believed he had been “prepared [by someone] to give ” that

statement. Castro sub sequently 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

continu ed 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 res ulting
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. argu es 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 pet ition for special action, named himself as the petitioner, and hired his own counsel to represent him. The clear purpose of Castro ’s p etition, however, is to obtain review of the respondent judge’s ruling on his
motion to substitute counsel. C.C. has cit ed 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)

.CASTRO v. HOCHULI Opinion of the Court

4 that minor defects in form require us to decline jurisdiction or deny
relief. And w e will not elevate form over substance to avoid the

issue s 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 clai ms, however, that we should decline jurisdiction because Castro lack s the authority to seek his counsel’s
removal under Rule 40, Ariz. R. P. Juv. Ct. H e cites Cecilia A. v.

Ariz ona Dep ar t ment of Econ omic Sec urity , 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.” T hat case , however, is distinguishable . T here, we determined a GAL could not file a notice of appeal on behalf of a n adult ward without a finding by th e 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 inte rest of a minor or an incompetent .” A.R.S. § 8

- 531(7) ( e mphasis 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 “bes t 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.” O nly then can the GAL

ac t 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 include s the authority to seek the replacement of the child’ s counsel if such action is in the child’s
best interest s

. And a GAL is authorized to file pleadings when appropriate. Ariz. R. P. Juv. Ct. 40.1(C)

. Thus, for the reasonsCASTRO v. HOCHULI Opinion of the Court

5 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 asser ts 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. Sp ec. 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 d uties. 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 10 93, 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 violat ing her dut y to C.C. by proceedi ng with the litigation

— was not ripe for consideration. 4 That issue can

— and should

— be

3 Although 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

-CASTRO v. HOCHULI Opinion of the Court

6 addressed before the litigation proceed s further because, if C astro

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

interest s 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 Ar iz. 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

termin ation 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 Co nduct, Ariz. R. Sup.

Ct. 42

. Furthermore, it would not promote C.C. ’s best interest s to

conviction relief in the co ntext 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 bec ause the factual basis and remedy sought were sufficiently articulated and the best interests of the child are a
paramount concern.

5 C.C. implies he alone has the authority to seek removal of appointed counsel. But Castro has been appointed as GAL to prot ect 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 coun sel’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.CASTRO v. HOCHULI Opinion of the Court

7 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, a re 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 re ported
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 remov al

. A c hild ’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)

,

6 If the respondent judge were to conclude that termination is in C.C.’s best interest, he has th e 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).

7 We 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) (crimi nal defendant entitled to
new counsel if “t here is a complete breakdown in communication or
an irreconcilable conflict between a defe ndant and his appointed counsel.”); State v. Schaaf , 169 Ariz. 323, 330, 819 P.2d 909, 916 (1991) (attorney permitted to wi thdraw 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.CASTRO v. HOCHULI Opinion of the Court

8 Ariz. R. Prof’l Conduct, Ariz. R. Sup. Ct. 42 (“[A] lawyer shall abide by a client’s decisions concern ing 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” h aving 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

9 The 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 wi th 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 lit igation 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 he r client in conformance with her interpretation of governing ethical rules.CASTRO v. HOCHULI Opinion of the Court

9 interests without being bound by the child’s expressed

pre ferences”).

¶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 couns el has acted
in conformance with C.C. ’s wishes

, counsel will be required to explain why C.C. has decid ed to pursue termination of Ronald’s parental rights. But we are not convince d the attorney

- client privilege would necessarily encompass the motive for pursuing the petition , nor ha ve 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. Sup erior

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 ”) ;

c f. State ex rel. Babbitt v. Arnold

, 26 Ariz. App. 333, 336, 548 P.2d 426, 429 (1976) ( t rial court may conduct in camera review of privileged
materials ).

Disposition

¶13 For all of the foregoing reasons, w e accept jurisdiction and grant relief. T he respondent judge is directed to investigate the allegation that counsel is acting in contravention of C.C.’s wishes by

purs u ing the petition to terminate Ronald’s parental rights

, and to determine whether C.C. ’s counsel should therefore be removed and
new counsel substituted

.