IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

TIMOTHY W., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, M.W., Appellees.

No. 1 CA-JV 16-0029

Appeal from the Superior Court in Maricopa County

No. JD23088

The Honorable John R. Ditsworth, Judge

REVERSED AND REMANDED

COUNSEL

Arizona Attorney General’s Office, Tucson

By Laura J. Huff

Counsel for Appellee Department of Child Safety

John L. Popilek, Scottsdale

By John L. Popilek

Counsel for Appellant

OPINION

Judge Andrew W. Gould delivered the opinion of the Court, in which 

Presiding Judge Diane M. Johnsen and Judge Randall M. Howe joined.
TIMOTHY W. v. DCS, M.W.

Opinion of the Court

2

G O U L D, Judge:

¶1 Timothy W. (“Father”) appeals the juvenile court’s order 

denying his request to withdraw his waiver of a termination hearing. 

Because we find the juvenile court abused its discretion in denying Father’s 

request, we reverse and remand.

FACTS AND PROCEDURAL BACKGROUND

¶2 In February 2013, the juvenile court determined Child was 

dependent as to Father. Two years later, DCS moved to terminate Father’s 

parental rights. Based on DCS's motion, the juvenile court changed the case 

plan from reunification to severance and adoption. 

¶3 At the October 2015 status conference, Father’s attorney 

advised the court that Father wished to waive his right to a termination

hearing and not contest the allegations in the severance petition. In 

response to the court’s questions, Father confirmed that he had spoken to 

his attorney about the decision and did not want to contest the allegations 

in the petition. The court found that Father knowingly, intelligently and 

voluntarily waived his right to a termination hearing, and set a hearing for 

January 2016 to determine the factual basis for terminating Father’s rights.

¶4 At the January hearing, the juvenile court asked Father if he 

still wished to waive his right to a termination hearing. In response, Father 

stated he had changed his mind and wanted to contest the severance 

petition. The court, however, denied Father’s request to withdraw his 

waiver, stating that Father previously waived his right to a termination 

hearing. The court then obtained a factual basis and terminated Father’s 

rights. Father timely appeals.

DISCUSSION

¶5 Father argues the juvenile court erred in denying his request 

to withdraw his waiver. Father contends that pursuant to Rule 66(D)(1) of 

the Rules of Procedure for the Juvenile Court, the court could not accept his 

waiver until it obtained a factual basis to support termination. As a result, 

he asserts he could withdraw his waiver at the January hearing because the 

juvenile court had not completed the waiver process prescribed by Rule 66. 

¶6 We review “questions involving the interpretation of court 

rules” de novo and “evaluate procedural rules using principles of statutory 

construction.” Haroutunian v. Valueoptions, Inc., 218 Ariz. 541, 544, ¶ 6 (App. 
TIMOTHY W. v. DCS, M.W.

Opinion of the Court

3

2008) (internal quotations and citation omitted). “[W]e interpret court rules 

‘in accordance with the intent of the drafters, and we look to the plain 

language of the . . . rule as the best indicator of that intent.’” Id. (quoting 

Fragoso v. Fell, 210 Ariz. 427, 430, ¶ 7 (App. 2005). In reviewing the 

procedural requirements for accepting “a no contest plea in a termination 

proceeding, we turn for guidance to the analogous context of guilty or no 

contest pleas made by criminal defendants.” Tina T. v. Dep’t of Child Safety, 

236 Ariz. 295, 298-99, ¶ 15 (App. 2014).

¶7 If a parent wishes to waive his right to a severance hearing, 

he must advise the juvenile court that he admits or does not contest the 

allegations in the severance petition. Ariz. R.P. Juv. Ct. 66(D)(1). Rule 

66(D)(1) states that “[i]n accepting an admission or plea of no contest, the 

court shall:”

a. Determine whether the party understands the rights being 

waived;

b. Determine whether the admission or plea of no contest is 

knowingly, intelligently and voluntarily made;

c. Determine whether a factual basis exists to support the 

termination of parental rights; and

d. Proceed with entering the findings and orders as set forth 

in subsection (F) of this rule.

¶8 The use of the word “shall” means the requirements of Rule 

66 (D)(1) are mandatory. See In re Maricopa County Sup. Ct. No. MH2003-

000240, 206 Ariz. 367, 369, ¶ 7 (App. 2003) (“Courts ordinarily interpret 

‘shall’ to mean the provision is mandatory.”). The plain language of Rule 

66 states that a parent’s waiver cannot be accepted before the court has 

determined there is a sufficient factual basis to support termination. See 

State v. Page, 115 Ariz. 156, 157 (1977) (stating that a plea of guilty or no 

contest cannot be accepted until the court determines there is a factual basis 

for the plea); see also Ariz. R. Crim. P. 17.3 (same). 

¶9 Here, the juvenile court denied Father’s motion to withdraw 

on the grounds his waiver from the October hearing was final and accepted. 

This determination was an abuse of discretion. Father moved to withdraw 

before the court obtained a factual basis; as a result, the waiver was not final 

and could not be accepted by the court. See State v. Ross, 214 Ariz. 280, 283, 

¶ 21 (App. 2007) (“An abuse of discretion exists when the trial court 
TIMOTHY W. v. DCS, M.W.

Opinion of the Court

4

commits an error of law in the process of exercising its discretion.”) 

(quoting Fuentes v. Fuentes, 209 Ariz. 51, 56, ¶ 23 (App. 2004)). 

¶10 Because Father’s waiver was not final and properly accepted, 

he was not required, as DCS contends, to show manifest injustice before he 

could withdraw his waiver. See Ariz. R. Crim. P. 17.5 (requiring a showing 

of manifest injustice to withdraw from a plea after the court has accepted 

the plea). As in a criminal case, Father could withdraw his waiver without 

showing manifest injustice at any time before the waiver was properly 

accepted by the court. See State v. Morse, 127 Ariz. 25, 31-32 (1980) (stating 

that a plea agreement can be revoked by any party at any time prior to its 

acceptance by the court); Ariz. R. Crim. P. 17.4(b) (same). 

CONCLUSION

¶11 For the above reasons, we reverse the juvenile court’s order 

denying Father’s motion to withdraw his waiver. Additionally, we reverse 

the severance of Father’s parental rights and remand for a severance 

hearing.