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

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) 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the Arizona legislature repealed the statutory authorization for 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.
CASTRO v. HOCHULI

Opinion of the Court

3

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).
CASTRO v. HOCHULI

Opinion of the Court

4

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 
CASTRO 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 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.

4We 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 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.
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, 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.
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 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).

10We 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.
CASTRO v. HOCHULI

Opinion of the Court

9

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) (attorneyclient 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.