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A r i z o n a J u v e n i l e C o u r t s
Terminating
Parental Rights
by Jury Trial
in Arizona:
A First Year Look
May 2005
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Children’s Action Alliance
Board of Directors
David J. Bodney
Chairman
Laura Almquist
David Bartlett
Charles Blanchard
Children's Action Alliance (CAA) is a non-profit, non-
Fred DuVal partisan organization dedicated to promoting the
well-being of all of Arizona's children and their
Kay Ekstrom families through research, policy development, media
Armando Flores campaigns and advocacy.
Sybil Francis
Jaime Gutierrez
Nora Hannah
David Howell
Diane Johnsen
Martin Latz
John Loredo
Steven W. Lynn
This publication was underwritten by a grant from
Bruce Merrill
Fostering Results, a national, nonpartisan project to
Susan Navran raise awareness of issues facing children in foster care.
Fostering Results is supported by a grant from The Pew
Christine Nowaczyk Charitable Trusts to the Children and Family
Steve Roman Research Center at the School of Social Work of the
University of Illinois at Urbana-Champaign. To learn
Brenda Sperduti more about Fostering Results go to
Carolyn Warner www.fosteringresults.org.
Carol Kamin, Ph.D.
President/CEO
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Terminating
Parental Rights
by Jury Trial
in Arizona:
A First Year Look
May 2005
Children’s Action Alliance prepared this report with the assistance of consultants, Gene C. Siegel, and Maureen
Domogala. Children’s Action Alliance would also like to thank the Arizona Supreme Court, Administrative
Office of the Courts, Dependent Children’s Services Division, and the Office of the Arizona Attorney General,
Child and Family Protection Division for the collection of court and case statistical data as well as the many
judges, Child Protective Services staff and attorneys who were interviewed for this report and are acknowledged
individually in Appendix B.
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Terminating Parental Rights by Jury Trial in Arizona: A First Year Look
FOREWORD
The juvenile courts play a critical role in juvenile court reform in Arizona, the current
providing oversight and assuring accountability of dependency court hearing process and plans for court
our Child Protective Services (CPS) System, which improvement. Based on this study, we found that
is mandated to protect abused and neglected funding for Arizona’s juvenile courts has not kept pace
children, provide permanent homes if with the critical reforms mandated by the Arizona
reunification with the family is not appropriate, and State Legislature. This report concluded that without
assure the well-being of children in the state’s care. additional resources, the expected results for CPS and
Recognizing the importance of the courts, the Pew the child welfare system in Arizona will not be totally
Commission on Children in Foster Care1 developed realized as the courts will not have the means to
policy recommendations in 2004 related to provide effective and timely oversight that will enhance
improving court oversight of child welfare cases to the safety, well-being and permanency of children in
achieve better and more timely decisions affecting the state’s care.
children’s safety, permanence and well-being. This second report, Arizona Juvenile Courts -
Terminating Parental Rights by Jury Trial in Arizona: A
The Pew Commission’s recommendations First Year Look, examines the legislative mandate
call for: initiated in December 2003, without additional
funding, to allow jury trials for termination of parental
• Adoption of court performance measures by rights hearings based on a parent’s request. This first
every dependency court to ensure that they can year look at jury trials reveals that this mandate affects
track and analyze their caseloads, increase the juvenile court’s resources and case flow
accountability for improved outcomes for management and places significant additional
children, and inform decisions about the burdens on all parties to these proceedings, including
allocation of court resources; CPS, the Attorney General’s Office and attorneys
representing children and their parents. This strain
• Incentives and requirements for effective on system resources also indirectly harms other
collaboration between courts and child welfare children’s cases because scarce resources are
agencies on behalf of children in foster care; redirected to the jury trial process. The critical
question is whether the benefits of the jury trial
• A strong voice for children and parents in court process outweigh the potentially negative
and effective representation by better trained consequences on the permanency goals of all the
attorneys and volunteer advocates; children in the state’s foster care system.
• Leadership from Chief Justices and other state
court leaders in organizing their court systems to
better serve children, providing training for
judges, and promoting more effective standards
for dependency courts, judges, and attorneys.
In response to these recommendations,
Children’s Action Alliance has produced two reports
examining the work of Arizona’s Juvenile Courts.
The first report, Arizona Juvenile Courts: Working to
Improve Outcomes for Abused and Neglected Children,
available on Children’s Action Alliance’s website at
www.azchildren.org, presents the past decade of
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Children’s Action Alliance
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Terminating Parental Rights by Jury Trial in Arizona: A First Year Look
Table of Contents
FOREWORD .............................................................. 3 How are contested TPR trials handled
in Arizona? ..................................................................18
EXECUTIVE SUMMARY............................................6
How are TPR jury trials assigned to judges
INTRODUCTION......................................................11 in the four counties that held jury trials?................18
BACKGROUND AND HISTORY What are the procedures for requesting
OF TPR JURY TRIALS IN ARIZONA ....................12 and scheduling TPR jury trials?................................19
QUESTIONS AND ANSWERS Are TPR trials open to the public? ..........................22
How many TPR jury trials Who participates in TPR jury trials? ........................23
have been requested? ................................................13
What are the differences between
How many TPR jury and bench trials TPR jury trials, bench trials
have been completed? ..............................................13 and other jury trials? ..................................................24
What were the outcomes of jury Who is requesting TPR jury trials
and bench trials that were completed? ..................14 in Arizona? ..................................................................24
What happens to the children What impact do jury trials have on
when a jury or judge decides the courts, attorneys, CPS, and children? ..............25
not to terminate parental rights? ............................14
Where are jury trials being held? ............................29
What were the outcomes of cases
when jury trials were requested RECOMMENDATIONS............................................30
but did not go to trial? ..............................................15
Appendix A – Arizona statutes regarding
Why are relatively few TPR jury trials termination of parental rights
actually completed and when and permanency hearings ........................................31
do they tend to resolve? ............................................15
Appendix B – Individuals interviewed
How long do jury and bench trial cases for this report..............................................................34
take from point of request to completion? ............16
ENDNOTES ................................................................35
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Children’s Action Alliance
EXECUTIVE SUMMARY
This report provides an overview of Arizona’s first • Four of Arizona’s fifteen counties experienced
year experiences with jury trials in termination of completed TPR jury trials (i.e. trials that resulted
parental rights cases (also known as severance, in jury verdicts) during this period.
termination or TPR).
The ability of parents to request TPR jury trials in • Because of the low number of jury trials
Arizona became law as a result of the Special completed, it is too early to determine whether
Legislative Session on Child Protective Services (CPS) jury trials are more or less likely than bench
held during the fall of 2003. The law became effective trials to result in the termination of parental
on December 18, 2003 and will expire after December rights. Outcomes for jury and bench trials are
31, 2006 unless reauthorized by the legislature. The as follows:
information and perspectives provided in this first year
look at severance jury trials were derived from In Jury Trials -
interviews with judges, Assistant Attorneys General • 16 of the 17 completed jury trials resulted in
(AGs), attorneys representing parents and children, jury verdicts severing parental rights on all or
and CPS case managers who were involved with TPR some of the children.
jury trials from December 18, 2003, through • One completed jury trial resulted in a verdict
December 17, 2004. in which parental rights were not terminated.
As a first year look at the jury trial process, the
findings and recommendations provided in this In Bench Trials -
report should be considered preliminary. • 151 of the 158 completed bench trials resulted
in judges’ rulings severing parental rights on
Summary Findings all or some of the children.
• Seven completed bench trials resulted in
This review of the implementation of jury trials for judges’ rulings in which parental rights were
TPR has found: not terminated.
• Statewide, 167 TPR jury trials were • When a jury or judge rules against terminating
requested from December 18, 2003 through parental rights it does not mean that children
December 17, 2004. are immediately returned to their parents’
custody. In fact, the children continue to be
• Excluding pending cases, only 13 percent of adjudicated dependent and will likely remain
all jury trial requests (17 cases) resulted in jury with foster parents, relatives, or another out-of-
trials being completed to verdict. Eighty-seven home setting while CPS works toward a new
percent of cases involving jury trial requests permanent plan.
were resolved before jury trials were held. Half
the cases resolved resulted in bench trials • Bench trials are more likely to be held and
either because the parent withdrew the jury completed as scheduled than TPR jury trials.
trial request, failed to appear at the jury trial, In Pima County2, there were 45 TPR bench
or failed to appear at the pre-trial conference. trials set during this period and, excluding
Just under one-third of the parents requesting pending cases, 71 percent resulted in
jury trials relinquished their parental rights at completed bench trials.
some point before juries rendered verdicts in
their trials. And, in eight percent of the cases, • Comparison data between jury and bench trials
CPS withdrew its motion for severance. is limited, but preliminary Pima County data
indicate that jury trials (when held and
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Terminating Parental Rights by Jury Trial in Arizona: A First Year Look
completed) took an average of 121 days to services to assure safety, child well-being and
complete, from the point of the permanency permanency for other children (not involved in
hearing, compared to 137 days for TPR bench the jury trial process) may be delayed because of
trials. This is primarily due to calendar the lack of additional and sufficient funding to
congestion and scheduling practices that spread support the jury trial process.
out the completion of bench trials (i.e., bench
trials may be segmented over a period of days or • The roles of Court Appointed Special Advocates
even weeks rather than completed within a (CASAs), Guardians ad litem (GALs) and
continuous time period). children’s attorneys are not clearly defined by
court rule or statute in the TPR jury trial process.
• The vast majority of both jury and bench trial
decisions to terminate parental rights are • Arizona has adopted the national juvenile court
appealed. When a case is on appeal, the child standard of One Family/One Judge for all
who is the subject of the severance cannot be dependency court processes. However, having
adopted until the appeal is concluded. the same judge hear the dependency case and
also preside over the severance hearing may be
• TPR jury trials have more elements that could one important factor in the parent’s decision to
lead to mistrials or appeals (whether successful request a TPR trial by jury. Because of court
or not) of the verdicts. Mistrials and appeals calendaring and jury trial accommodation
will result in delays of permanency for issues, Maricopa and Pima Counties have
children. In FY 2004, the average time for designated specific judges to handle all TPR jury
Court of Appeals Division 1 to decide a trials; thus deviating from the One Family/One
dependency or TPR case on appeal was 285 Judge standard.
days; for Division 2, it was 338 days.
• Because so few jury trial requests actually result in
• Jury trials are taking priority over other hearings trials held, some of the judges responsible for
and case management activities. Therefore, TPR jury trials experienced substantial blocks of
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Children’s Action Alliance
“down time” (i.e., unanticipated stretches of time Recommendations
on judges’ schedules when no hearings
occurred). To better plan their time, judges 1. Based on the first year experience of TPR jury
started the practice of stacking trials (i.e., trials, including the negative impact on workloads
scheduling multiple trials for the same time affecting other dependent children’s safety, well-
period). This practice reduces the likelihood of being and permanency needs, the legislature
judges experiencing substantial down time, but it should allow the TPR jury trial provision to sunset.
does not reduce or save time for the attorneys If there is consideration of reauthorizing this law,
and CPS case managers who must still prepare the legislature should appropriate sufficient funds
for each one of the pending stacked trials in to support the additional costs for jury trials and to
addition to their other cases. address workloads of all involved parties.
• Jury trials have a significant impact on the 2. The Supreme Court and the Attorney General’s
workloads of key parties involved in these Office should continue tracking both TPR jury
proceedings. AGs, attorneys for children and and bench trials and expand data collection to
parents and CPS case managers estimate that include:
TPR jury trials take from three to ten times more
time than TPR bench trials, including • Data on the number, outcomes and time-
preparation and time in court. frames of appeals and mistrials for both jury
and bench trials and the impact on
• In the four counties, there is consensus that TPR permanency for the children.
jury trials cost more than bench trials although
there was no state appropriation to implement • How many days it takes from the permanency
the jury trial provision of the new law. hearing and request for a jury or bench trial
to completion of the trial and the jury or
• The jury trial option must be viewed in light of its judge’s decision.
effects on other children’s cases. CPS case
managers preparing for TPR jury trials have less • An analysis of the relevant characteristics of
time to see other children on their caseloads and parents who are requesting jury trials including
work toward the well-being of those other how many requests are being made by
children. Attorneys for parents and children as incarcerated parents, how many are being made
well as AGs have less time to prepare for other by parents with documented severe mental
cases on their workload, all parties must shuffle illnesses, and how many are being made by
and reshuffle court hearings as jury trials may be parents with chronic substance abuse problems.
held or cancelled.
• What happens to children after a jury or judge
• There is a continuing need for basic and decides not to terminate parental rights.
specialized training for judges, AGs, other
attorneys, CPS case managers, CASAs and GALs 3. Prior to any decision to extend this legislation, the
on topics relevant to TPR jury trials. Supreme Court or the Legislature’s Office of the
Auditor General should conduct a cost and
workload analysis of jury trials including:
• An evaluation of why so few jury trial requests
actually result in jury trials being completed, and
the costs associated with this outcome.
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Terminating Parental Rights by Jury Trial in Arizona: A First Year Look
• The impact on parties and case flow 8. The Supreme Court and the Arizona Department
management whether or not the jury trial is of Economic Security should make additional
actually held. training available for judges, AGs, other attorneys,
CPS case managers, CASAs and GALs on TPR jury
• The costs associated with remodeling juvenile trial issues including courtroom testimony.
courts to accommodate juries and the related
expenses that would allow jury trials to be held
at juvenile court centers.
• The TPR by jury workload as it affects other
dependency cases not directly associated
with the jury trials including other children’s
well-being and timeliness of permanency.
• An assessment of whether the option of jury
trials is fostering more adversarial proceedings
in dependency matters.
4. As an alternative to a jury trial, the courts should
consider allowing parents to make a formal written
request to have a different judge preside over the
severance trial than the judge responsible for their
child’s dependency case. (Other jurisdictions,
including the 65th Judicial District Children’s Court
in El Paso, Texas, have successfully implemented
this practice without adverse effects on
permanency for children.)
5. The Supreme Court’s Court Improvement Project
should move forward with new rules to expedite (to
within 90 days) the Court of Appeals’ consideration
and findings in termination of parental rights cases.
(Iowa has successfully implemented this expedited
appeals process.)
6. The judges in Maricopa and Pima Counties should
explore ways to issue findings and rulings in bench
trials in a more expedited manner than waiting up
to the 60 days permitted to issue their findings after
a trial commences.
7. The Supreme Court should update court rules to
clarify the roles of CASAs, GALs, and children’s
attorneys in contested TPR trials.
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Terminating Parental Rights by Jury Trial in Arizona: A First Year Look
INTRODUCTION
For many people, the ability to be tried by a jury Attorneys General (AGs) who prosecute TPR cases,
of ones’ peers is a foundation of American CPS case managers, and attorneys who represent
jurisprudence and the embodiment of our court children and/or parents in these matters.
process. However, of all cases heard in our courts – Comparisons among the four counties7 (Maricopa,
including civil, criminal, and juvenile matters – few Mohave, Pima and Yuma counties) that completed
actually go to juries. Most cases are resolved before TPR jury trials, including different experiences in
they get to trial and those that do go to trial are often metropolitan and rural counties, will also be drawn
decided by a judge, not a jury. In the vast majority of where applicable. And comparisons between jury and
juvenile courts, jury trials in abuse or neglect matters bench trials will also be discussed when relevant.
are extremely rare, even in states that permit jury trials This initial look at TPR jury trials in Arizona was
in dependency cases.3 based on interviews with professionals involved in trials
Perhaps no decision made by juvenile courts is that were actually held, and review of preliminary data.
more dramatic than deciding if parents should retain All statistics used in this report were provided by: the
the right to parent their child or children. Many Office of the Arizona Attorney General, Child and
juvenile courts face this difficult decision on a daily Family Protection Division; the Arizona Supreme
basis and, until fairly recently, termination of parental Court’s Administrative Office of the Courts (AOC);
rights (also called severance or TPR) proceedings and the juvenile courts in the four counties that
have remained largely shielded from the public’s view experienced completed jury trials. Jurors, parents, and
due to concerns about privacy and the need to children who participated in these proceedings were
protect children. not interviewed due to confidentiality concerns and
When a child is adjudicated dependent, it means time constraints.
the juvenile court has determined that the parents or The professionals who were interviewed
guardians have abused and/or neglected that child to expressed strong and varied opinions as to the relative
such a degree that the state must formally intervene, benefits and drawbacks of jury trials. There was no
at least temporarily, to ensure the child’s protection.4 disagreement, however, when it came to discussing
When a parent’s rights are terminated, it means the court the workload impact of jury trials. While the number
has determined the parent(s) are incapable on a long- of jury trials completed in Arizona has been relatively
term basis of providing a safe, permanent and stable small to date, the impact on key participants in the
home for that child and it is in the child’s best TPR jury trial process has been anything but small.
interests to have the parental rights terminated.5 While the focus of this paper is on TPR jury trials,
In Arizona, up until December 2003, when interviews with key participants in severance matters
parents contested a TPR motion or petition, their revealed that juvenile courts, particularly those in
only option was to have their case tried before a judge Maricopa and Pima counties, continue to face
(otherwise known as a “bench trial”). This judge was, formidable challenges with crowded court dockets.
most often, the same judge who handled the parents’ This report offers some options to address this
dependency proceedings. With the passage of ARS§8- concern, a concern that applies to both jury and
223 in December 2003, parents facing the bench trials.
termination of their parental rights obtained a
second option – the ability to request a jury trial in
TPR matters.6
This report is intended to capture the key issues
and experiences surrounding the first year of TPR
jury trials in Arizona. Where possible, comparisons of
perspectives will be drawn among judges, Assistant
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Children’s Action Alliance
BACKGROUND AND
possible in termination of parental rights
HISTORY OF TPR JURY proceedings. This reflected concerns regarding the
TRIALS IN ARIZONA possibility, perceived by some, that CPS reforms
could lead to more children being removed from
their homes and thus the need for more options for
Jury trials in TPR matters in Arizona emerged parents and opportunities for systemic checks and
within a much broader effort to reform the state’s balances. Jury trials, say proponents, offer an
Child Protective Services (CPS) system. The state’s additional check and balance.
reforms were embodied in legislation passed The statutory provision allowing parents to
during a special session of the state legislature in request jury trials in severance cases is ARS §8-223. It
December 2003. This legislation clarified the reads as follows:
mission of CPS to: (1) protect children, (2) A hearing to terminate parental rights that is held
promote the well-being of a child in a permanent pursuant to section 8-537 or 8-863 shall be tried to a jury
home and (3) strengthen the family and prevent if a jury is requested by a parent, guardian or custodian
8
abuse or neglect. whose rights are sought to be terminated.
Prior to the special session and during An emergency clause made the statute
negotiations among key legislators and the immediately effective upon the Governor’s signing
Governor’s Office on how to improve CPS, one on December 18, 2003. This new section of law also
legislator suggested the jury trial option. The has a three year sunset provision; the law will cease
impetus for this legislator’s suggestion was based on to exist after December 31, 2006 unless it is
a desire to afford parents as much due process as reauthorized by the legislature.
“The underlying reason for
severance jury trials was to give
people a greater sense of fairness.
Some people are concerned about the
existing court process and CPS.
Jury trials offer a balance that
enables parents to plead their case
in front of a jury of their peers
instead of a judge who some feel
may be biased.”
- Arizona State Senator
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Terminating Parental Rights by Jury Trial in Arizona: A First Year Look
QUESTIONS AND ANSWERS
How many TPR jury trials have been Table 1
requested?9 TPR Jury Trials Requested
Q
(12/18/03 – 12/17/04)
Statewide, 167 TPR jury trials were requested from Number of jury % of all requests
trial requests
December 18, 2003 through December 17, 2004.
A
Pima County 70 42%
As shown in Table 1, requests for TPR jury trials Maricopa County 54 32%
were received in 11 of Arizona’s 15 counties during this Cochise County 14 8%
period. Pima County experienced the highest number Yavapai County 10 6%
of TPR jury trial requests (70), which represents 42 Mohave County 7 4%
percent of all jury trial requests. In contrast, Maricopa Yuma County 5 3%
County experienced 54 jury trial requests, which Coconino County 2 1%
represents 32 percent of all requests. Cochise County Gila County 2 1%
experienced the third highest rate of jury trial requests; Navajo County 1 <1%
specifically, 14 requests which represents roughly eight Pinal County 1 <1%
percent of the statewide total. Graham County 1 <1%
In Pima County, there were 70 jury trial requests Statewide Total 167 100%
compared to 45 bench trials planned because a jury
trial was not requested.
Table 2
TPR Jury and Bench Trials Completed
How many TPR jury and bench trials (12/18/03-12/17/04)
Q
have been completed?
# of jury trials # of bench trials
completed completed11
A total of 17 TPR jury trials were completed in four Pima County 12 29
A 12
counties between December 18, 2003 and December 17, Maricopa County 2 98
2004 period, compared to 158 TPR bench trials. Mohave County 2 14
Yuma County 1 17
As shown in Table 2, only four of Arizona’s fifteen
Total 17 158
counties experienced completed jury trials (i.e. trials
that resulted in jury verdicts) during this period. Of the In Pima County, the only jurisdiction from which
statewide total of 167 jury trial requests, 39 trials were comparable request versus completed bench trial data
still pending as of December 17, 2004. This means 128 were immediately available, of the 45 TPR bench trials
of the 167 jury trials requested between mid-December set during this period, four were still pending as of
2003 and mid-December 2004 resulted in some form of December 17, 2004. Excluding these four pending
case outcome or resolution. Excluding the 39 pending bench trials, the Pima County data indicate that 71
trials,10 13 percent of all jury trial requests resulted in percent (29 out of 41 cases) resulted in completed
jury trials being completed to verdict. bench trials.
As also shown in Table 2, the number of TPR The preliminary information from Pima
bench trials completed during this period in the four County is consistent with comments made by jury
juvenile courts was substantially higher than the and bench trial participants who indicated that
number of completed jury trials (158 completed bench trials, when requested, are more likely to be
bench trials versus 17 completed jury trials, a ratio of held and completed than TPR jury trials. In other
over nine to one). words, jury trial requests appear much less likely to
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Children’s Action Alliance
result in completed trials than trials arising out of parental rights, it does not mean the dependency case
bench trial requests.13 is dismissed nor does it mean the child is returned to
his parents. It does mean that the evidence and
What were the outcomes of jury and considerations of the child’s best interests did not
Q support termination of parental rights. In fact,
bench trials that were completed?
children remain adjudicated dependent and will likely
stay with foster parents, relatives, or another out-of-
The vast majority of both TPR jury trials and bench home setting while CPS works toward a new
A
trials completed during this period resulted in severance on permanent plan. The new permanent plan could
all or some of the children listed in the TPR motion/petition. possibly become “return to parent,” but it subsequently
may be “severance and adoption” again if the parents
Data from Maricopa, Mohave, Pima, and Yuma do not demonstrate sufficient progress toward
counties show the following: remedying the behaviors and/or conditions that led to
their children’s dependency.
In Jury Trials -
• 16 of the 17 completed jury trials resulted in
verdicts severing parental rights on all or some
of the children.
• One completed jury trial resulted in a jury verdict
in which parental rights were not terminated.
In Bench Trials -
• 151 of 158 completed bench trials resulted in
judges’ rulings severing parental rights on all or
some of the children.
• Seven completed bench trials resulted in judges’
rulings in which parental rights were not
terminated.
Because of the low number of jury trials
completed, it is too early to say whether jury trials are “I think parents’ counsel have begun
more or less likely than bench trials to result in the to ask for jury trials before the time line to
termination of parental rights.
keep their options open. When they get
What happens to the children when a closer to trial, they realistically discuss the
Q
jury or judge decides not to terminate pros and cons of a jury trial with their
parental rights?
clients and, most often, decide it is not
When a jury or judge rules against terminating the way to go.”
A
parental rights it does not mean that children are
immediately returned to their parents’ custody. - Yavapai County
Presiding Superior Court Judge
When a jury or a judge decides not to terminate
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Terminating Parental Rights by Jury Trial in Arizona: A First Year Look
What were the outcomes of cases when Why are relatively few TPR jury trials
Q Q
jury trials were requested but did not actually completed and when do they
go to trial? tend to resolve?
The vast majority (87%) of cases involving jury trial In this first year, many cases involving jury trial
A A
requests were resolved before jury trials were held. requests resolved close to or on the first day of trial.
Of the 167 jury trials requested, 39 cases were There appear to be a number of reasons why jury
pending as of December 17, 2004. Of the remaining trials are not held. These include:
cases, 128 reached some form of resolution.
Seventeen (17) cases resulted in completed trials • Mandatory mediation in some counties which
where juries rendered verdicts,14 and 111 cases helps many of these matters resolve before trial,
reached some other form of resolution without a jury particularly if relatives are involved and present
rendering a verdict. an alternative placement for the child.
Table 3 shows that half of the cases where the
parent initially requested a jury trial resulted in bench • Many parents who initially request trials (either
trials either because the parent withdrew the jury trial jury or bench trials) do not show for pre-trial
request, failed to appear at the jury trial, or failed to hearings (or mediation) which can lead the
appear at the pre-trial conference. Just under one- court, after consideration of the evidence, to
third (34 cases) of the parents requesting jury trials sever their parental rights.
relinquished their parental rights at some point
before juries rendered verdicts in their trials. And in • Some parents realistically assess their chances
eight percent of the cases that did not go to jury trial, before juries (or judges) and ultimately agree to
CPS withdrew its motion for severance. the child’s permanent placement before or soon
after a trial commences.
Table 3 Resolutions of Jury Trial Requests When Trials Not Held
(12/18/03-12/17/04)
Number of cases Percentage of jury trial requests reaching
(N=111) of resolution without a trial being held
Jury trial request withdrawn by parent,
bench trial ordered 27 24%
Parent failed to appear at trial, bench trial
held in absentia 7 6%
Right to jury trial denied by judge due
to non-appearance of parent at pre-trial
conference, bench trial ordered 22 20%
Parent relinquished, jury trial vacated 34 31%
Guardianship agreed to, trial vacated 5 5%
Motion for summary judgment granted,
parental rights terminated 6 5%
Motion for termination withdrawn
by CPS 9 8%
Dependency adjudication set aside
on appeal, no trial 1 <1%
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• Parents’ attorneys may also decide after a How long do jury and bench trial cases
request for a jury trial has been made that it is Q
take from point of request to
not in their clients’ interests to go to trial and 15
completion?
convince parents to relinquish or withdraw
their requests.
In Pima County, jury trials have taken an average of
A
• Parents may initially ask for jury trials to preserve 121 days to complete, from the point of a child’s permanency
their right to have a jury trial and decide later hearing, versus 137 days for TPR bench trials.
whether they want a jury to decide their case.
Figure 1 shows the TPR process and average time
• The state may agree to change the child’s periods for starting and completing TPR jury trials
permanent plan in some way (e.g., from and bench trials in Pima County, from the point of
adoption to guardianship) before a trial begins. the permanency hearing and trial request to
completion of the TPR process.16
Figure 1 – Time Frames to Complete TPR Jury and Bench Trials in Pima County
Permanency Hearing
(within 12 months after removal)
Motion for TPR filed by CPS children’s Petition filed by person
attorney, or GAL with legitimate interest
(within 10 days after permanency hearing)
Court decides whether Parent admits, does not Initial TPR Hearing
evidence supports TPR contest, or fails to show (held within 30 days after permanency hearing;
without good cause no time frame if petition is filed)
Parent contests
(trial date set within 90 days of permanency hearing)
Parent contests Parent contests
and requests jury trial but does not request jury trial
Average 68 days Average 50 days
from request to Settlement conference, mediation, from contest
start of jury trial and/or pre-trial conference to start of
bench trial
Start of TPR jury trial Start of contested TPR
bench trial
Completion of TPR Completion of contested
Average 5 days jury trial TPR bench trial Average 34 days
from start of
from start of jury
bench trial to
trial to verdict Jur y Trials Contested Bench Trials judge’s ruling
Average 121 days from permanency Average 137 days from permanency
hearing to completion hearing to completion
Statutory time-frames. The statutory time-frames are the same for both TPR jury and bench trials. See ARS §8-862.D in Appendix A.
Average actual time-frames for Pima County.
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Terminating Parental Rights by Jury Trial in Arizona: A First Year Look
The preliminary data show that while bench trials Appeals of TPR cases delay permanency for children.
are initiated sooner than jury trials in Pima County, The vast majority of both jury and bench trial
they take longer to complete. decisions to terminate parental rights are appealed.
When a case is on appeal, the child who is the subject
Timeliness of TPR Trial Dispositions/Rulings of the severance cannot be adopted until the appeal
In Maricopa and Pima Counties, TPR jury trials, is concluded. In FY 2004, the average time for Court
when held, are likely to take less time to complete than bench of Appeals Division 1 to decide a dependency or TPR
trials. This is primarily due to calendar congestion and case on appeal was 285 days17; for Division 2, it was
scheduling practices that prevent timely completion of TPR 338 days18.
bench trials in these two courts.
The juvenile courts in Maricopa and Pima “In Yuma County, it is easier to find time
counties schedule TPR bench trials in available for bench trials and fewer things get in the
segments of the court calendar which can spread
these events over days or weeks. In jury trials, way to cause delays. More things can go
however, once a jury is seated and the trial is wrong in jury trials that can lead to
underway there will be a ruling within a finite mistrials.”
period of days. Also, in bench trials in the two
urban county courts, judges often take matters
under advisement at the conclusion of these - Yuma County Superior Court Judge
hearings and issue written findings of fact and
rulings days or weeks later (up to 60 days after the
bench trial is held). Jury trials present opportunities for mistrials and
greater issues for appeal than TPR bench trials.
In Mohave and Yuma counties, TPR bench trials take There have been two mistrials in TPR jury trials
less time to complete than jury trials. The judges in these during the first year.
counties are more likely to rule from the bench at the conclusion
of bench trials than judges in the two urban counties. Mistrials occur when the judge agrees that the jury
has been exposed to inadmissible information. In
In Mohave and Yuma counties, TPR bench trials other words, evidence has been introduced that is
can generally be completed within one uninterrupted likely to lead to a jury verdict that is not based on
day and judges can usually issue prompt rulings at the relevant facts. When a judge declares a mistrial, the
conclusion of these hearings or soon thereafter. jury is dismissed and the case must be retried. Mistrials
do not exist with bench trials.
While both bench and jury trials may be appealed, jury
“I never take a severance under
trials present more issues for appellate review.
advisement. I make a prompt ruling and
This is due to a number of factors including the
explain it. Jury trials take longer and there is
more complex evidentiary and procedural issues that
no discussion. When I rule in bench trials I arise in jury trials and the greater possibility that a jury
explain why I have made the decision.” may be persuaded by bias or emotion. In addition to
constitutional challenges and sufficiency of evidence
issues, jury trial appeals may also include other factors
- Mohave County Superior Court Judge not present in bench trials such as instructions to the
jury, jury selection, and jury misconduct. 19
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Children’s Action Alliance
How are contested TPR trials handled This practice played an important role in reducing
Q continuances and delays that had plagued the juvenile
in Arizona?
courts through the mid-1990s and helped reduce the
length of time dependent children remained involved
Typically, contested severance matters are handled in the court system.21As will be discussed, the
A
through bench trials, not jury trials. Bench trials do not perceived unfairness of retaining the same judge from
involve juries – they are presided over by a single judge. In dependency through severance proceedings
the vast majority of bench trials in Arizona, the same judge represents one important factor in why parents may
that handles a family’s pre-severance (i.e., dependency) request jury trials.
matters presides over the bench trial. This “One Family/One Juvenile courts in Arizona continue to try to follow
Judge” approach reflects one of a number of nationally One Family/One Judge case handling in all
recognized guidelines and practices recommended by the dependency matters, although the two urban county
National Council of Juvenile and Family Court Judges and juvenile courts have more difficulties maintaining this
the American Bar Association in dependency and practice through all dependency proceedings than
termination of parental rights cases. Specifically, these rural county courts. For example, in Maricopa County,
adoption and permanency guidelines state:20 adhering to One Family/One Judge has been
particularly challenging in the past two years due to
It is strongly preferred that the same judge or judicially substantial judicial rotation.22 But overall, all of
supervised magistrate presides over the entire child welfare Arizona’s juvenile courts have adopted the One
case from the preliminary protective hearing through Family/One Judge approach in dependency cases.
permanency, including adoption. Following a case from start
to finish offers the judge an opportunity to see the impact How are TPR jury trials assigned to
decisions have made on the child, creates the best possibility of Q 23 in the four counties that held
judges
ensuring that case plans relate to the specific needs of the child jury trials?
and family and allows for development of perspective about
cases. Judicial monitoring must continue until a permanent
home is finalized and the court can close its case. Judges must While all Arizona juvenile courts continue to support
A
use the full extent of their authority to protect children and to One Family/One Judge case handling in dependency
keep children and other family members safe. Judges must matters, different judges are assigned to handle TPR jury
hold all participants in the proceedings, including state and trials in Maricopa and Pima counties.
local agencies, accountable to provide reasonable and
necessary services to children and families. All Arizona juvenile courts maintain One
Family/One Judge case assignment in TPR bench
In Arizona, One Family/One Judge case handling trials. However, in severance jury trials, there are
was adopted as the preferred practice in dependency substantial differences between the urban and rural
matters by all juvenile courts before the end of 2001. county courts. The two urban county courts have
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Terminating Parental Rights by Jury Trial in Arizona: A First Year Look
designated specific judges to handle all TPR jury trials. importance of continuity and the benefits of keeping
In Maricopa County, two superior court judges have judges with juvenile court experience assigned to
been assigned to handle jury trials. In Pima County, these cases. These proponents also emphasize that the
one juvenile court judge has been given this assigned judge has an obligation to be fair to all
assignment.24 In the rural county courts, the same parties and to hold CPS and parents appropriately
judge who handled the dependency phase of a case accountable to ensure that the best interests of
will also handle the TPR jury trial. children are served. Proponents of keeping the same
The juvenile courts in Maricopa and Pima judge add that there is no empirical or factual basis for
counties are transferring TPR jury trials to specially the perception of some that having the same judge
assigned judges due to crowded court calendars. preside over a TPR bench or jury trial is
There is simply not enough open time in these fundamentally or presumably unfair to parents.25
juvenile courts’ schedules to find three or more Those who feel different judges should handle
consecutive days required to complete jury trials. TPR matters emphasize there are fundamental
These consecutive time periods must be set aside constitutional and fairness issues that override the
whenever a jury trial is scheduled, whether or not the arguments in support of One Family/One Judge in
trial actually goes as planned. Unfortunately, because severance cases. Those favoring a different judge for a
so few jury trial requests result in trials being held, the severance matter do not necessarily agree that a jury
specially assigned judges responsible for TPR jury trials trial is also warranted. In other words, there is not a
were experiencing substantial blocks of “down time” consensus in Arizona among judges, AGs, CPS case
(i.e. unanticipated stretches of time on judges’ managers, and attorneys regarding whether One
schedules when no hearings occur). Family/One Judge case assignment should continue
through the severance phase.
It remains almost impossible for Maricopa and Pima
County Juvenile Courts to hold and complete severance bench What are the procedures for requesting
trials without delays. and scheduling TPR jury trials?
Q
Assigning TPR jury trials to specific judges in
Maricopa and Pima counties allows jury trials to be set The Arizona Supreme Court is responsible for drafting
A
on consecutive days and helps relieve some of the and implementing state court rules, including those
pressures on regular juvenile court dockets. However, applicable to juvenile courts. Rule 66.1.B covers the request
these dockets include TPR bench trials that remain for a TPR jury trial and reads:
difficult if not impossible to schedule without
interruption in the two urban county courts. The request for a trial to a jury shall be signed
Scheduling difficulties and the time it takes for a judge personally by the parent or by counsel of record, filed and
to issue a written decision in TPR bench trials served on the petitioner prior to the initial termination
continue to pose formidable challenges. hearing provided by Rule 65 of these rules or, if counsel is
appointed at the initial termination hearing, within twenty
There are strong disagreements about retaining the One days of appointment of counsel. If the written request for
Family/One Judge case handling approach in TPR trials jury trial is signed by counsel of record, the counsel must
(bench or jury). avow that the request for jury trial has been made by the
parent. Failure to file and serve the request in a timely
Despite the clear call for One Family/One Judge manner constitutes a waiver of the right to a jury trial.
case assignment noted in the Adoption and Permanency Failure to appear at the initial termination hearing or the
Guidelines, there are strong disagreements about this termination adjudication hearing shall be deemed a
practice when it comes to severance matters. rescission of any request for a trial to a jury.
Proponents of this approach emphasize the
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Children’s Action Alliance
Some of the parties involved in jury trials feel the generally offered but not required as a matter of
process for requesting a TPR jury trial may be more juvenile court policy (the juvenile court began a
complex or onerous for parents than in criminal or mandatory permanency and TPR mediation pilot
civil jury trial cases. However, one of the intents of the project in early 2005).26 One other difference involves
rule is to help minimize the chances that the parent’s Maricopa County where the two specially assigned
attorney will request a jury trial just to cover all bases. judges have implemented “Trial Management
Still, a substantial number of jury trial requests resolve Conferences” that occur roughly 10 to 14 days before
right before or right after trials begin. The high a jury trial is set to commence. These proceedings,
frequency of these “false starts” presents many held after the pre-trial conference, involve only the
dilemmas for the courts and raises an important attorneys (for the state, the parents, and the child)
question – who benefits when jury trials are scheduled and are intended as one more method for the court
but do not go? Most certainly, these incidents to make sure that the parties are ready to go to trial.
represent another source of delay for other children Table 4 shows the processes for each of the
not necessarily involved in the jury trial, but who are four counties.
awaiting permanency.
Scheduling TPR jury and bench trials
The hearing process leading up to jury and bench As mentioned earlier, juvenile courts in many
trials and alternatives to trial counties, particularly Maricopa and Pima counties,
The statutorily required first hearing in the are experiencing very heavy court dockets. Much of
termination process is the initial termination hearing. this can be attributed to a sharp increase in
Things start to vary a bit after this initial hearing. In dependency petition cases, which have risen 21
Mohave and Yuma counties, for example, parties percent from fiscal year to 2003 to 2004,30 and the fact
involved in severance actions are required to that juvenile courts conduct more frequent hearings
participate in pre-trial mediation. In Maricopa than other divisions of the superior court. The
County, mediation is routinely held but is not addition of TPR jury trials has created new scheduling
required. In Pima County, through mid-December challenges for the courts because jury trials require
2004, mediation or settlement conferences were consecutive days and uninterrupted time periods.
Table 4
Proceedings Leading Up To Termination Trials (Bench and Jury)
Maricopa County Mohave County Pima County Yuma County
Initial termination hearing • If TPR motion filed, must be held within 30 days of the Permanency Hearing.
• If TPR petition filed, must be held no sooner than 10 days following completion of service.
Mediation or Mediation and/or Mandatory Mediation or Mandatory
Settlement conference27 Settlement conference mediation or Settlement conference mediation or
routinely held. Settlement offered but not Settlement
conference. required. conference.
Pre-trial conference or
Usually set 30 days before trial.
Status hearing
Trial management Usually held 10 to 14 Not applicable Not applicable Not applicable
conference days before jury trials
28
only.
Jury or Bench Trial • If a trial (bench or jury) results from the filing of a TPR motion, it must be held within 90 days
of the Permanency Hearing.29
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Terminating Parental Rights by Jury Trial in Arizona: A First Year Look
The courts are likely to move other types of hearings The courts attempt to start termination jury trials
when they need time for TPR jury trials. within 90 days of the permanency hearing but all courts
report difficulties meeting this requirement. This is also true
The courts have attempted, with varying degrees for TPR bench trials in Maricopa and Pima counties.
of success, to make TPR jury trials a priority. If a jury
trial has to be held, other hearings will be moved to In the four counties, the courts have had serious
make room for it. While this reflects statutory and difficulties meeting the timeline in at least half of their
court time requirements for TPR trials (i.e. trials are jury trials. In some cases, parents waive the timeline
supposed to start within 90 days of the permanency requirement. However, the complexities inherent in
hearing), it also reflects the courts’ recognition of the TPR jury trials, the characteristics of individuals who
importance of these events. However, because so few request jury trials (e.g. many exhibit serious mental
TPR jury trial requests result in actual trials, the courts health problems), the availability and number of
have adapted court scheduling practices. In the two witnesses, the need for adequate preparation time,
urban county courts, multiple jury trials are likely to and heavy court dockets also contribute to these
be scheduled for the same time period (i.e. they are challenges. Unfortunately, in the two urban county
“stacked”) as the court anticipates most if not all will courts, it is also very difficult to commence TPR bench
resolve before the actual trial. This practice of stacking trials within 90 days of the permanency hearing.
trials reduces the likelihood of judges experiencing
substantial down time, but it does not preclude other Jury trials to date have been set for two to more than five
parties from having to prepare for pending trials. consecutive days, with three to four days being the average
In the two rural counties, the superior court time set aside for these matters.
judges handle all types of cases, not just severance jury
trials. When a jury trial is set on their calendars, they The designated judge currently assigned to
have to move other proceedings to make room. This handle TPR jury trials in Pima County sets matters for
situation is magnified when multiple jury trial requests Tuesdays through Thursdays (three consecutive days)
occur within the same time frame. unless there are compelling reasons to extend this
period. Other courts do not appear to have specific
Most important, however, is the fact when jury days for jury trials but all set them for consecutive
31
trials are taking priority over other hearings, safety and (uninterrupted) periods. Overall, the courts are
permanency issues for other children may be delayed. allowing sufficient time for jury trials although at least
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Children’s Action Alliance
two of the 17 trials completed through mid- managers and parents must shuffle their schedules
December 2004 exceeded their allotted time. whenever a jury trial is actually held. This creates a
domino effect forcing the juvenile court to continue
In contrast to jury trials, termination bench trials are and/or reschedule other dependency or delinquency
rarely held during uninterrupted time blocks in the two urban matters because key participants are tied up in jury
county courts; in fact, bench trials are almost always trials. This phenomenon is particularly evident in
segmented over a period of days or even weeks. Pima County due to the higher number of cases that
have actually gone to trial and to a lesser extent in
The primary reason for the interrupted flow of Maricopa County during this time period. But this
bench trials in Maricopa and Pima counties is the domino effect is not limited to the two urban
crowded juvenile court dockets. There is also a sense jurisdictions. In Mohave and Yuma counties, the pool
that TPR bench trials are not given the same of AGs, CPS case managers, and attorneys who
precedence as jury trials. Furthermore, if a parent in represent children and parents in dependency and
Maricopa or Pima County reconsiders their jury trial termination cases is smaller, so when a jury trial is
request after the jury trial has been scheduled, the held, the court must reset other hearings to
case may be sent back to juvenile court for a bench accommodate the schedules of these key parties.
trial before the original dependency judge. This can
compound delays and scheduling dilemmas.32 The Are TPR trials open to the public?
two rural county courts, in contrast, are able to hold Q
severance bench trials without interruption; generally, The majority of TPR jury trials held to date have been
within a half to one-full day, and as noted earlier, in closed to the public. Those that were open did not present
A
the two rural county courts, the same judge is more significant problems for the courts.
likely to handle jury and bench trials.
Arizona law (ARS §8-224) allows parents facing
Jury trials can have dramatic effects on the schedules of termination trials “to request that a hearing or trial …
key participants in dependency and severance matters, be open to the public.” Before the so-called open
forcing them to reschedule other juvenile court hearings and hearings law went into effect, TPR bench trials were
other case management duties for dependent children. closed to the public due to confidentiality and other
concerns. Now, parents may request that any hearing
Because jury trials are held over uninterrupted related to a dependency action, including TPR bench
time stretches and take precedence over other court and jury trials, be open to the public. Through
hearings, AGs, attorneys for children, CPS case December 17, 2004, most TPR jury trials were closed
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Terminating Parental Rights by Jury Trial in Arizona: A First Year Look
proceedings. The few that were open did not present strangers (jurors) as well as parents, and provide
significant problems for the courts. In the open details of prior abuse and/or neglect. In bench trials,
proceedings, the courts did take special precautions to there is no jury and the judge can manage the trial to
ensure attendees understood the need to maintain protect a child more directly than in a jury trial.
confidentiality; specifically, the judges repeatedly
admonished those in attendance, posted the The current juvenile court rules do not specifically
admonishment in the courtroom, and required address what CASA volunteers and GALs can and cannot
everyone entering the courtroom to sign a paper do in jury trials.
containing the admonition.
There are ongoing questions by CASA volunteers,
Who participates in TPR jury trials? GALs and attorneys for children in TPR jury trials
Q about their respective roles. The participation of the
AThe presence of multiple parties at TPR jury trials non-attorney GAL and the CASA volunteer appear to
makes these proceedings distinctly different from other types be limited to providing testimony in those cases in
of jury trials. which they are called to testify by one of the parties. If
one of the parties does not call them to testify, they will
TPR jury trials typically involve more parties than not have an opportunity to provide information to the
other types of jury trials. At criminal trials, for jury. Even when called to testify, they usually are not
example, you only have two parties – the defendant permitted to provide their opinion as to what may be
(with her or his attorney) at one table in the in the best interest of the child. They are, however,
courtroom, and the prosecutor at the other table. In generally permitted to testify and express their
TPR jury trials, you may have the state’s attorney (AG), opinions in TPR bench trials.
the attorneys for the parents, the attorney for the child Also, the rules do not specifically delineate the
or children, the guardian ad litem33 for the child (if child’s attorney role at trial even though the child is
one has been appointed), and a guardian ad litem the named party. For example, is the child’s attorney
(GAL) for the parent (if one has been appointed). allowed to voir dire the jury and use preemptory
You may also have a Court Appointed Special challenges? Can the child’s attorney question
Advocate (CASA volunteer)34 at the trial. witnesses called by the other parties? If so, is it direct
or cross examination? Can the child’s attorney call
There are also differences between TPR jury and TPR witnesses, give an opening statement and closing
bench trials in who attends, participates, and testifies. argument and, if so, at what stage of the trial? The
answers are even less clear for GALs who may be
Perhaps the most noticeable difference between attorneys; sometimes they are treated as full-fledged
jury trials and bench trials involves witness testimony. parties and other times as limited parties, witnesses
Because juries are more apt to listen to live testimony or spectators.
rather than read transcripts or other documents, most
evidence in a jury trial is presented through witnesses “Jury trials have a great impact on the
who testify in person. This contrasts with bench trials court because they take precedence and the
where witnesses may testify telephonically or through
written submissions. This means more witnesses are court has to move other hearings to make
physically present for jury trials. Another key room on the calendar. For me, I have to
difference may involve the testimony of children.
Children’s attorneys may be generally reluctant to cancel a lot of home visits and other things
have their clients testify in jury trials because it may re- to appear in jury trials.”
traumatize the children. For example, in a jury trial, a
child may have to testify in front of a group of
- CPS Case Manager
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Children’s Action Alliance
“I believe jurors are as capable of The TPR jury trial differs from the TPR bench trial
dealing with termination matters as anyone with respect to evidence that can and should be
presented in several ways. Expert witnesses are an
else. While jurors are not trained to handle example of how evidence is presented differently for a
these cases, severance matters are difficult jury. In a bench trial, expert reports and other
documentary evidence are admitted regularly in lieu
no matter who you are.” of testimony. The judges are familiar with the experts’
credentials and the basic nature of the reports. By
- Assistant Attorney General contrast, a jury is not generally educated or
knowledgeable in the same manner and must be
educated not only on the subject matter but be given
the opportunity to decide the credibility of the expert
What are the differences between through his or her credentials and live testimony.
Q An overriding principle is the risk that a jury will
TPR jury trials, bench trials, and
decide an issue of fact based on irrelevant information
other jury trials?
or emotion. In order to control this risk, parties must
engage in more formal pretrial discovery and
One key difference between TPR jury trials, bench trials, disclosure. What witnesses will say on the stand in
A
and other jury trials is the need to educate jurors on the role front of a jury must be “nailed down” through formal
of CPS, the basic components of dependencies and severance discovery (i.e. depositions, interrogatories, requests
matters, and the roles of multiple parties (including the for admission) prior to trial to determine what
child’s attorney). testimony should not be allowed, either by agreement
or through a motion to the court to limit or exclude
While jury trials are fundamental components of the testimony. Formal discovery is used very
civil and criminal cases, they are new to Arizona’s infrequently in non-jury TPR cases.
juvenile courts. Many of the key parties involved in
TPR jury trials during this past year had no experience Who is requesting TPR jury trials
trying cases to juries. TPR jury trials also represent the Q
in Arizona?
first time the public has been directly involved in
severance matters. Starting when the jurors are going
through the selection process and continuing Arizona’s jury trial statute authorizes only parents to
A
throughout the trial, the court and the parties have to request severance jury trials. The state’s attorney, the child’s
take substantial time to explain the basic aspects of the attorney, and CPS do not have this capability.
juvenile court process, what a dependency is, what a
severance is, the role of the jury in the severance trial, Although we do not have precise data on the
the role of CPS and other parties, and other relevant characteristics of parents making requests for jury
topics. This must be done in easy to understand trials, key TPR trial participants interviewed for this
language, avoiding the jargon that many system paper identified case characteristics that appear to
professionals take for granted. This is a unique aspect increase the likelihood of a parent requesting a jury
of TPR jury trials. In bench trials, there are no jurors,
and the judge and the attorneys can focus on ensuring “All my jury trials were closed proceedings. I
that parents and children understand the nature and
don’t believe there is a teen on earth who wants
substance of the proceedings.
the public to know her or his business.”
A second difference between TPR trials and other jury
trials involves important evidentiary issues. - Child’s Attorney in Pima County
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Terminating Parental Rights by Jury Trial in Arizona: A First Year Look
trial. The requests for a jury trial may be due to one or “Mental illness is a real factor. The
more of the following:
mother in the case I tried just did not believe
• Parents who want a different judge to that the jurors would rule to sever. I had
handle their TPR trial.
two other jury trials set and they settled
• Parents who are incarcerated and who before trial. In both of these the Moms were
may be using jury trials to spend some incarcerated. Substance abuse is also an
time out of prison – this includes at least
some parents who are serving extended important factor. These parents really
prison sentences, who have not been damage themselves and they do not see how
actively involved in their children’s lives,
and who have no hope of parenting it affects their kids.”
their children.
- Assistant Attorney General in Pima County
• Parents with chronic substance abuse
problems and/or with serious mental
health problems.35 • Cases involving dependent children who
have been in an out-of-home placement
• Parents who have previously relinquished (e.g. a foster home) for a cumulative total
rights to other children and/or that have period of 15 months or longer, and whose
extensive histories with CPS. parents, the state believes, are unlikely to
remedy the circumstances that led to out-of-
• Parents who feel jury trials offer an home placement.36
opportunity to show their children that they
did not give up. • Cases that do not have a permanent
placement option for the child, and with no
• Parents who see jury trials as a forum to be overriding parental mental illness, less
heard by members of the public before they severe histories of child abuse, along with
relinquish parental rights or before a jury some evidence of the parents making some
terminates these rights. efforts to participate in services.37
• Parents who view TPR jury trials as criminal
trial-type proceedings intended to What impact do jury trials have on the
determine parental “guilt or innocence” courts, attorneys, CPS and children?
Q
rather than what they are – civil proceedings
intended to determine what is in the best
interests of children. AThere is broad agreement across the four counties that
TPR jury trials significantly magnify the workloads of AGs,
• Parents whose attorney believes a CPS case attorneys, and CPS case managers, compared to TPR bench
manager will not present well before a jury. trials. These professionals estimate that jury trials take from
three to ten times more time than bench trials, including
• Parents or parents’ attorney who perceives a preparation and actual trial attendance.
potential advantage in a jury trial, even if
CPS has made diligent efforts to reunify a Jury trials have profound effects on the workloads
child with the parents. of key professionals involved in dependency and
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Children’s Action Alliance
“Jury trials require a good ten days to two
termination matters. These effects occur whether jury
trials actually are held or not. Because attorneys and weeks out of my time as a case manager. You
CPS case managers must prepare for jury trials as if have to drop everything else and focus all your
they are going to be held. Jury trials also affect judges’
attention on the trial, prepare for it, then
workloads. Judges have to set aside sufficient time on
their calendars to hear the TPR jury trials which may actually go to it. Everything else on the caseload
require delaying other cases on their calendars or gets neglected.”
reassigning the other cases or the TPR jury trial to
another judge.
- CPS Case Manager in Pima County
When jury trials are scheduled, attorneys and CPS case
managers must reschedule all other hearings and work
responsibilities. they are going to be held and, when they do actually
proceed, they have to move all other work obligations,
When jury trials are scheduled, AGs, CPS case including other trials, off their schedules at the last
managers, and attorneys for parents and children minute. This is a problem not only for the persons
must reschedule other hearings and other work involved in the TPR jury trial, but for all others in the
responsibilities. In Pima County, when a jury trial is rescheduled trials and hearings including children,
scheduled, attorneys are not allowed to reschedule parents, foster parents, CASAs, doctors and other
other dependency or delinquency matters38 until the expert witnesses to name but a few. While TPR bench
Monday before a trial is set to start. This policy was trials present their own unique challenges (i.e. in
enacted because few jury trials are actually held. But terms of being scattered over days or weeks), they
the impact on attorneys and CPS case managers in generally do not produce this domino effect on
terms of preparation time and scheduling is dramatic people’s schedules.
nonetheless – they have to prepare for these trials as if
Without sufficient funding, the extra time and work
required for jury trials may exacerbate stress and turnover
“The workload impact can depend on for at least some AGs and CPS case managers.
how many trials are going at once. Most
For the AGs who prosecute TPR cases, jury trials
trial lawyers usually have more than one
produce substantial increases in preparation and in-
trial to prepare for. Aside from that, the court presentation time. This is a concern for at least
average preparation is five times the two reasons. First, the extra preparation time may
prevent AGs from adequately preparing for other
amount compared to bench trials. If the cases on their caseloads. Second, the extra work
lawyer has the amount of time he really demands add substantial stress that can exacerbate
AG turnover.39 The same is true for CPS case
needs, it can take 10 times the amount of managers. The extra work required to prepare for
time versus a bench trial. I like the TPR jury trials forces case managers to fall behind on other
cases and work substantial overtime. Again, this is true
jury trials, though, because these are cases
whether jury trials actually go or not.
where I think I can best advocate for my
client in front of a jury.” Cost impact
In the four counties there is consensus that TPR
jury trials cost more than bench trials. The costs of jury
- Attorney for Parents in Pima County trials, however, should not be measured solely by
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Terminating Parental Rights by Jury Trial in Arizona: A First Year Look
direct or out of pocket expenses. The substantial time Impact on permanency for children
and workload demands discussed earlier may present In 1997, the federal Adoption and Safe Families
substantial direct and indirect costs that should be Act (ASFA) was passed by Congress to speed the
considered in any future cost/benefit analysis. process of finding permanent homes for children.40
Assessing direct and indirect costs and weighing these Arizona’s landmark dependency court reforms
against the argument that the opportunity for jury instituted since the late 1990s to present day also
trials offers greater fairness or justice than bench trials emphasize the need for timely permanency for
is a key issue to be resolved. abused and neglected children. Proponents of TPR
In the meantime, there are some readily jury trials believe that jury trials offer necessary
identifiable direct costs unique to jury trials. In balance and fairness to the existing juvenile court
addition to the costs of juries, evidence and testimony dependency and CPS systems. But what effects do jury
must be presented differently. For example, trials have on permanency for children?
presenting evidence to a judge in a bench trial does
not require fancy, large reproductions or multiple
“Jury trials will require judges, attorneys,
copies of materials as is needed in jury trials. Expert
witnesses usually are called in front of a jury whereas CPS case managers, doctors, foster parents
judges may require only written reports from certain and many others to spend tens of thousands of
experts. These additional costs may include:
extra hours over the three year time period
• Jury fees and expenses. allowed under the current law. Can our state’s
• Costs associated with photographic evidence limited resources be better spent for the benefit
that are not already budgeted for in the Office of all children in foster care?
of the Attorney General and CPS.
• Costs for hiring additional bailiffs. -- Assistant Attorney General
• Costs for expert witness testimony (i.e. to pay
expert witnesses for their time). Judges, AGs, attorneys representing children and/or
parents, and CPS case managers have varied perceptions of
• Costs for formal discovery (e.g. court reporters the impact of jury trials on permanency for the children who
for depositions and copies of transcripts). are subjects of the jury trials.
• Costs for bringing in witnesses from other states There is no consensus across the four counties as
who physically appear in jury trials versus the to whether jury trials promote or detract from timely
telephonic testimony often permitted in bench permanency for children who are subjects of the jury
trials (e.g. transportation, lodging and meals). trial process. Some of the professionals involved in
these cases indicated they saw no effects whatsoever,
• Costs for remodeling courtrooms and building while others pointed to delays tied to the time it takes
jury assembly and deliberation rooms at juvenile to schedule and hold jury trials. Some cited delays in
courts, if the law becomes permanent. finalizing adoptions because of appeals or mistrials,
and emphasized the possibility that at least some CPS
• In some counties, there may be additional costs case managers may be waiting longer to file TPR
for contract attorneys if they work beyond a motions or petitions because of the concerns
certain number of hours. regarding the demands of jury trials. Others cited
delays caused by jury trials being scheduled but then
• Overtime pay for CPS case managers. being reset as bench trials.
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Children’s Action Alliance
Impact on other dependent children.
There were no additional resources provided to
the courts, AG’s Office or CPS for the implementation
of the jury trial process. However, dependency
petitions have increased 21% for the court from FY
2003 to FY 2004, and the number of children in foster
care under the court’s supervision has increased 18%.
This in itself has placed a substantial burden on all
involved parties in the dependency process.
Additionally, CPS case managers have less time to see
other children on their caseloads and work towards
securing their permanent placements. Attorneys for
parents and children as well as AGs have less time to
prepare for other cases on their workload. All parties
must shuffle and reshuffle court hearings as jury trials
may be held or cancelled. The exact impact of jury
trials on other children has not been measured in this
preliminary study, but should be in any further
evaluation of this process.
Training
There is a continuing need for basic and specialized
training programs on topics relevant to termination jury trials
including how to testify before a jury.
One of the more intriguing aspects of this first
year look at TPR jury trials involves how key parties
present themselves to juries. How someone may
appear (i.e. the way they look, the ability to appear
friendly to jurors, etc.) before a jury may be as
important as the content of their testimony.
Virtually all of the parties involved in jury trials
suggested that there is a need for introductory and
ongoing training on all aspects of trying cases
before a jury.
As the number of jury trials requested and held “Jury trials drag the process out. It
presumably increases across the state,41 judges and takes longer to get us to the jury trial in
attorneys also need basic and ongoing training.
Training for judges and attorneys should, at a our county. I have one case where the
minimum, cover evidentiary issues, jury selection lawyer wants to depose 27 people. This
considerations, initial and final jury instructions,
forms of verdict, effective client advocacy, and other can be very expensive and delay the case.”
relevant topics. Future training should also cover
effective methods for educating jurors on relevant
issues tied to TPR jury trials. - Presiding Superior Court Judge in
Yavapai County
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Terminating Parental Rights by Jury Trial in Arizona: A First Year Look
“Having a jury’s decision hinge on a worker’s
appearance before a jury or the worker’s ability to
testify, instead of the facts of the case, is a real
concern. Some of us do a better job of presenting
ourselves than others.”
- CPS case manager in Maricopa County
Many CPS case managers, expert witnesses and other
key parties need training on courtroom testimony for all
types of trials (jury and bench).
The need for courtroom testimony training is
not limited to jury trials. Many CPS case
managers, for example, need training on
preparing for and presenting testimony in court
for all types of trials (including bench
proceedings), not just TPR jury trials.
Where are jury trials being held?
Q
Most TPR jury trials are being held in superior court
courtrooms that were designed for adult civil and criminal
A
matters. These settings can be intimidating for dependent
children involved in jury trials.
In Arizona, as elsewhere, very few juvenile courts
have the capacity and facilities for jury trials.42 If jury “We have no budget for TPR jury trials.
trials were to be held at the juvenile courts, current The counties absorbed the expenses. We had
facilities would have to be remodeled and
arrangements would have to be made with jury 100 prospective jurors report for my trial.
commissioners (usually based at superior court) to We had to hire a bailiff which was not
either provide transportation to and from the juvenile budgeted for. I let the mother call an expert
court buildings for jurors, or the state or counties
would have to hire additional jury commissioners and witness and this cost thousands of dollars.”
staff for the juvenile courts.
- Mohave County Superior Court Judge
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Children’s Action Alliance
RECOMMENDATIONS
• The costs associated with remodeling juvenile
1. Based on the first year experience of TPR jury trials, courts to accommodate juries and the related
including the negative impact on workloads affecting expenses that would allow jury trials to be held at
other dependent children’s safety, well-being and juvenile court centers.
permanency needs, the legislature should allow the
TPR jury trial provision to sunset. If there is • The TPR by jury workload as it affects other
consideration of reauthorizing this law, the dependency cases not directly associated with the
legislature should appropriate sufficient funds to jury trials including other children’s well-being
support the additional costs for jury trials and to and timeliness of permanency.
address workloads of all involved parties.
• An assessment of whether the option of jury trials
2. The Supreme Court and the AGs Office should are fostering more adversarial proceedings in
continue tracking both TPR jury and bench trials dependency matters.
and expand data collection to include:
4. As an alternative to a jury trial, the courts should
• Data on the number, outcomes and time-frames of consider allowing parents to make a formal written
appeals and mistrials for both jury and bench trials request to have a different judge preside over the
and the impact of permanency for the children. severance trial than the judge responsible for their
child’s dependency case. (Other jurisdictions,
• How many days it takes from the permanency including the 65th Judicial District Children’s Court
hearing and request for a jury or bench trial in El Paso, Texas, have successfully implemented
to completion of the trial and the jury or this practice without adverse effects on permanency
judge’s decision. for children.)
• An analysis of the relevant characteristics of 5. The Supreme Court’s Court Improvement Project
parents who are requesting jury trials including should move forward with new rules to expedite (to
how many requests are being made by within 90 days) the Court of Appeals’ consideration
incarcerated parents, how many are being made and findings in termination of parental rights cases.
by parents with documented severe mental (Iowa has successfully implemented this expedited
illnesses, and how many are being made by appeals process.)
parents with chronic substance abuse problems.
6. The judges in Maricopa and Pima Counties should
• What happens to children after a jury or judge explore ways to issue findings and rulings in bench
decides not to terminate parental rights. trials in a more expedited manner than waiting up
to the 60 days permitted to issue their findings after
3. Prior to any decision to extend this legislation, the a trial commences.
Supreme Court or the Legislature’s Office of the
Auditor General should conduct a cost and 7. The Supreme Court should update court rules to
workload analysis of jury trials including: clarify the roles of CASAs, GALs, and children’s
attorneys in contested TPR trials.
• An evaluation of why so few jury trial requests
actually result in jury trials being completed, and 8. The Supreme Court and the Arizona Department
the costs associated with this outcome. of Economic Security should make additional
training available for judges, AGs, all other
• The impact on parties and case flow management attorneys, CPS case managers, CASAs and GALs on
whether or not the jury trial is actually held. TPR jury trial issues including courtroom testimony.
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Terminating Parental Rights by Jury Trial in Arizona: A First Year Look
Appendix A – Arizona statutes regarding termination of parental rights and
permanency hearings
The grounds for terminating parental rights 6. That the putative father failed to file a notice
are delineated in ARS §8-533.B which reads: of claim of paternity as prescribed in section
8-106.01.
Evidence sufficient to justify the termination of
the parent-child relationship shall include any one of 7. That the parents have relinquished their rights
the following, and in considering any of the following to a child to an agency or have consented to
grounds, the court shall also consider the best the adoption.
interests of the child:
8. That the child is being cared for in an out-of-
1. That the parent has abandoned the child. home placement under the supervision of the
juvenile court, the division or a licensed child
2. That the parent has neglected or willfully welfare agency, that the agency responsible
abused a child. This abuse includes serious for the care of the child has made a diligent
physical or emotional injury or situations in effort to provide appropriate reunification
which the parent knew or reasonably should services and that either of the following
have known that a person was abusing or circumstances exists:
neglecting a child.
(a) The child has been in an out-of-home
3. That the parent is unable to discharge the placement for a cumulative total period of
parental responsibilities because of mental nine months or longer pursuant to court
illness, mental deficiency or a history of order or voluntary placement pursuant to
chronic abuse of dangerous drugs, controlled section 8-806 and the parent has substantially
substances or alcohol and there are neglected or willfully refused to remedy the
reasonable grounds to believe that the circumstances which cause the child to be in
condition will continue for a prolonged an out-of-home placement.
indeterminate period.
(b) The child has been in an out-of-home
4. That the parent is deprived of civil liberties due placement for a cumulative total period of
to the conviction of a felony if the felony of fifteen months or longer pursuant to court
which that parent was convicted is of such order or voluntary placement pursuant to
nature as to prove the unfitness of that parent section 8-806, the parent has been unable to
to have future custody and control of the child, remedy the circumstances which cause the
including murder of another child of the child to be in an out-of-home placement and
parent, manslaughter of another child of the there is a substantial likelihood that the
parent or aiding or abetting or attempting, parent will not be capable of exercising
conspiring or soliciting to commit murder or proper and effective parental care and control
manslaughter of another child of the parent, or in the near future.
if the sentence of that parent is of such length
that the child will be deprived of a normal 9. That the identity of the parent is unknown and
home for a period of years. continues to be unknown following three
months of diligent efforts to identify and locate
5. That the potential father failed to file a the parent.
paternity action within thirty days of
completion of service of notice prescribed in 10. That the parent has had parental rights to
section 8-106, subsection G. another child terminated within the
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Children’s Action Alliance
preceding two years for the same cause and is The requirements for a permanency hearing and
currently unable to discharge parental timelines for permanency are found in ARS §8-862:
responsibilities due to the same cause.
A. The court shall hold a permanency hearing to
11. That all of the following are true: determine the future permanent legal status of
the child:
(a) The child was cared for in an out-of-home
placement pursuant to court order. 1. Within thirty days after the disposition
hearing if the court does not order
(b) The agency responsible for the care of the reunification services.
child made diligent efforts to provide
appropriate reunification services. 2. In all other cases, within twelve months after
the child is removed from the child's home.
(c) The child, pursuant to court order, was The court shall not continue the permanency
returned to the legal custody of the parent hearing beyond twelve months after the child
from whom the child had been removed. is removed from the child's home unless the
party who is seeking the continuance shows
(d) Within eighteen months after the child was that the determination prescribed in section 8-
returned, pursuant to court order, the child 829, subsection A, paragraph 3 has been made
was removed from that parent's legal custody, or will be made within the time prescribed in
the child is being cared for in an out-of-home that paragraph.
placement under the supervision of the
juvenile court, the division or a licensed child B. At the permanency hearing, the court shall
welfare agency and the parent is currently determine:
unable to discharge parental responsibilities.
1. Whether termination of parental rights,
C. In considering the grounds for termination adoption, permanent guardianship pursuant to
prescribed in subsection B, paragraph 8 or 11 section 8-872 or some other permanent legal
of this section, the court shall consider the status is the most appropriate plan for the child
availability of reunification services to the and shall order the plan to be accomplished
parent and the participation of the parent in within a specified period of time.
these services.
2. Whether reasonable efforts have been made to
D. In considering the grounds for termination finalize the permanency plan in effect.
prescribed in subsection B, paragraph 8 of this
section, the court shall not consider the first C. If the court determines that the child should
sixty days of the initial out-of-home placement remain in out-of-home placement longer than
pursuant to section 8-806 in the cumulative eighteen months from the date of the
total period. permanency order, the court shall conduct a
review of the order at least once each year. After
Arizona law also requires that for a judge in a reviewing the order, the court may reaffirm the
severance bench trial or a jury in a severance jury trial, order or direct other disposition of the child.
the court’s findings with respect to grounds for
termination must be based on “clear and convincing D. If the court determines that the termination of
evidence under the rules applicable and adhering to parental rights is clearly in the best interests of
the trial of civil causes.”43 the child, the court shall:
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Terminating Parental Rights by Jury Trial in Arizona: A First Year Look
1. Order the department or the child's attorney or
guardian ad litem to file within ten days after
the permanency hearing a motion alleging one
or more of the grounds prescribed in section 8-
533 for termination of parental rights. The
party who files the motion has the burden of
presenting evidence at the termination hearing
to prove the allegations in the motion.
2. Set a date for an initial hearing on the motion
for termination of parental rights within thirty
days after the permanency hearing. If the
termination is contested at the initial hearing,
the court shall set a date for the trial on
termination of parental rights within ninety
days after the permanency hearing.
E. If the court determines that permanent
guardianship is clearly in the best interests of
the child, the court shall:
1. Order the department or the child's attorney or
guardian ad litem to file within ten days after
the permanency hearing a motion alleging the
grounds prescribed in section 8-871 for
permanent guardianship. The party who files
the motion has the burden of presenting
evidence at the hearing to prove the allegations
in the motion.
2. Set a date for an initial hearing on the motion
for permanent guardianship within thirty days
after the permanency hearing. If the
permanent guardianship is contested at the
initial hearing, the court shall set a date for the
trial on the permanent guardianship within
ninety days after the permanency hearing.
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Children’s Action Alliance
Appendix B – Individuals interviewed for this report
Children’s Action Alliance would like to thank the following individuals for taking the time to provide their
comments and information relevant to TPR jury trials in Arizona:
Randi Alexander, Esq. Bruce MacArthur,
The Honorable Mark Anderson, Arizona State Senate Office of the Arizona Attorney General
Denise Avila-Taylor, The Honorable Michael McVey,
Office of the Arizona Attorney General Maricopa County Superior Court
Paul Bennett, Esq. Sara Moody, Child Protective Services
David Braun, Bill Owsley,
Office of the Arizona Attorney General Office of the Legal Advocate, Maricopa County
The Honorable Robert Brutinel, Eileen Palles,
Presiding Judge, Yavapai County Superior Court Office of the Arizona Attorney General
Merritt Bingham Dublin, Judith Palmer , Esq.
Office of the Arizona Attorney General Rich Poniske, Child Protective Services
Jeff Costin , Child Protective Services Robert Rosenelli, Esq.
David Croxton, Child Protective Services The Honorable Julie Roth,
Julie Duncan , Child Protective Services Mohave County Superior Court
The Honorable Patricia Escher, The Honorable Stephen Rubin,
Pima County Juvenile Court Lead Dependency Judge,
The Honorable Richard Fields, Pima County Juvenile Court
Pima County Superior Court Peggy Schwartz, Child Protective Services
The Honorable Stephen Gerst, Keith Singer, Esq.
Maricopa County Superior Court William Stanton,
The Honorable Charles Harrington, Arizona Supreme Court,
Pima County Juvenile Court Administrative Office of the Courts
Hervey Hotchkiss, Pat Trebesch,
Office of the Arizona Attorney General Office of the Arizona Attorney General
David N. Howarth, Edward Truman,
Office of the Arizona Attorney General Office of the Arizona Attorney General
The Honorable John Kelly, Carey S. Turner,
Pima County Superior Court Office of the Arizona Attorney General
The Honorable Virginia Kelly, Kathy Tuthill,
Pima County Superior Court Office of the Arizona Attorney General
The Honorable Kirby Kongable, Karyn Vampotic,
Yuma County Superior Court Office of the Arizona Attorney General
The Honorable John Leonardo, Tracy Wareing, Office of the Governor
Presiding Judge, Pima County Superior Court Jo Ann Zirkle ,
Sandra Lopez, Child Protective Services Office of the Arizona Attorney General
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Terminating Parental Rights by Jury Trial in Arizona: A First Year Look
End Notes
11. In Pima County, the preliminary bench trial data reflect cases in which
parents specifically waived their rights to jury trial. In Maricopa,
1. The Commission, a national, nonpartisan panel funded by The Pew Mohave, and Yuma counties, the preliminary bench trial data may
Charitable Trusts and composed of leading experts in child welfare, reflect at least some cases that started as jury trial requests but then
undertook the first-ever, comprehensive assessment of two key aspects of reverted to bench trials.
the foster care system: a federal financing structure that encourages an
over-reliance on placement of children in foster care at the expense of 12. The Maricopa County Juvenile Court reported that 141 bench trials
other more permanent options for children who have been abused or were completed during this period but outcomes for these bench trials
neglected, and a court system that lacks sufficient tools, information, were available for only 98 of these cases. Therefore, a more conservative
and accountability necessary to move children swiftly out of foster care count of “completed” bench trials has been used in this report.
and into permanent homes. More information on the Pew Commission
and its final report can be found on their website at www.pewfostercare.org 13. This is also consistent with data provided by the Milwaukee County
(Wisconsin) Circuit Court that show that over 96 percent of
2. Pima County was the only jurisdiction from which comparable bench termination filings in 2002 and 2003 were resolved through court
trial data were immediately available. (bench) trials, defaults, or consents.
3. Abuse/neglect (i.e., dependency) proceedings precede termination of 14. This excludes the 40 pending cases because the outcomes were not yet
parental rights matters. As of January 2004, 11 states (Colorado, Maine, known.
Massachusetts, Michigan, Montana, Oklahoma, South Dakota, Texas,
Virginia, Wisconsin, and Wyoming) have statutes or case law that permit 15. “Completion” means the jury trial has been completed and the jury has
or require a jury trial in dependency cases. The remaining states have rendered a verdict, or the judge has issued her/his ruling following a
case law or statutes or local court rules that specifically prohibit a jury bench trial (i.e., parental rights terminated or not).
trial in dependency cases. See Szymanski. L. (2004).Jury Trial in Abuse,
Neglect, Dependency Cases NCJJ Snapshot, 9(1). Pittsburgh, PA. National 16. Pima County data are presented here because of the higher number of
Center for Juvenile Justice. completed jury trials in that county. These figures only apply to cases
where jury or bench trials were actually held and completed during the
4. A publication prepared by Children’s Action Alliance and the Arizona December 18, 2003 through December 17, 2004 period. These data
Supreme Court, Administrative Office of the Courts, in September 2004 should be considered preliminary.
and entitled Arizona Juvenile Courts: Working to Improve Outcomes for
Abused and Neglect Children contains an overview of Arizona’s juvenile 17. Email of April 13, 2005 from The Honorable Maurice Portley, Court of
court proceedings for dependency and severance cases. Appeals, Division I.
5. In Arizona, there are two ways to initiate termination actions. The first 18. Telephone conversation with Michelle Nimmo, Court of Appeals,
most common method involves the filing of a motion to sever parental Division II, March 31, 2005.
rights. ARS §8-862.D.1. states “If the court determines (at the
permanency hearing) that the termination of parental rights is clearly in 19. Comparison data on appeals of TPR jury and bench trials during this
the best interests of the child, the court shall order (CPS) or the child’s first year were not available for this study.
attorney or guardian ad litem to file within 10 days after the permanency
hearing a motion alleging one or more of the grounds prescribed in 20. National Council of Juvenile and Family Court Judges. (2000) Adoption
ARS §8-533 for termination of parental rights.” Arizona law (ARS §8- and Permanency Guidelines: Improving Court Practice in Child Abuse and
533.A.) also allows any person or agency who “has a legitimate interest Neglect Cases. Reno, Nevada. (Page 5) The purpose of the Adoption and
in the welfare of a child to file a petition for the termination of the Permanency Guidelines is “to set forth the essential elements of best
parent-child relationship.” practice for the court processes that lead to a permanent home for
children who cannot be reunified with their families.”
6. Only six states (Nevada, Oklahoma, Texas, Virginia, Wisconsin, and
Wyoming) have statutes, court rules, and/or case law that permit or 21. The National Center for Juvenile Justice (NCJJ) conducted a series of
require a jury trial in termination of parental rights cases. Szymanski, L. studies examining juvenile court practices, including judicial
(2003) Jury Trials in Termination of Parental Rights Cases: NCJJ Snapshot , assignments, before and after court reforms were instituted statewide.
8(12). Pittsburgh, PA. National Center for Juvenile Justice. The The first study, completed in 1996, found frequent changes in judges
remaining 43 states have case law or statutes or local court rules that handling dependency matters. This contributed to frequent
specifically prohibit TPR jury trials. continuances and delays in court proceedings and prolonged court
involvement for many dependent children. G.J. Halemba & G. Siegel
7. The Presiding Superior Court Judge in Yavapai County was also (1996) Arizona Court Improvement Project: Final Report. Pittsburgh, PA.
interviewed for this report. The Yavapai County Superior Court convened National Center for Juvenile Justice. A follow up study conducted after
one TPR jury trial during this period though this trial did not end in a jury court reforms were adopted statewide, including One Family/One
verdict (the parent relinquished rights before the end of the trial). Judge case assignment, found significant reductions in continuances
and delays, as well as significant decreases in the average length of
8. Grounds for terminating parental rights in Arizona are delineated in time dependent children remained court involved. G. Siegel, et. al.
ARS §8-533.B. (See Appendix A.) (2002) The Arizona Court Improvement Project: Five Years Later. Pittsburgh,
PA. National Center for Juvenile Justice.
9. All Arizona jury trial statistics used in this report were provided by the
Office of the Arizona Attorney General, Child and Family Protection 22. For example, in 2003, half of the judges assigned to Maricopa
Division, the Arizona Supreme Court, Administrative Office of the County’s southeast court facility (SEF) rotated off the juvenile bench.
Courts, and/or the juvenile courts in Maricopa and Pima counties. The majority of new judges rotated in from the criminal bench and
did not have experience with juvenile cases. G.J. Halemba, et. al.,
10. Excluding pending jury trials was necessary for this preliminary analysis (2004) Arizona Dual Jurisdiction Study: Final Report. Pittsburgh, PA.
because we do not know the outcomes for pending events. National Center for Juvenile Justice.
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23. All juvenile court judges in Arizona are superior court judges. When CASA volunteers nationwide. Information obtained from the National
cited in this paper, however, their titles reflect the court they were CASA Organization (www.nationalcasa.org).
assigned to during the December 2003 through December 2004 period.
35. Previous research on families involved in the juvenile court system has
24. The judge assigned to handle jury trials in Pima County is currently shown very high rates of chronic substance abuse and mental illness
assigned to juvenile court but he conducts jury trials at the superior among parents of dependent children. For example, see G. Siegel, et.
court building, not at the juvenile court. Other judges may handle TPR al. (2002) The Arizona Court Improvement Project: Five Years Later. NCJJ.
jury trials if there is a conflict. In early 2005, a different superior court
judge will be assigned to handle TPR jury trials. After that assignment 36. See Appendix A for the specific grounds for terminating parental
is completed, the Pima County Juvenile Court will rotate jury rights in Arizona.
assignments among the juvenile court judges.
37. Pursuant to both state and federal law, the juvenile court is required to
25. Some proponents of the One Family/One Judge approach also make “reasonable efforts” findings at almost every stage of a
emphasize that when a TPR motion is filed, it is an extension of a dependency action. “Reasonable efforts refer to those actions which
dependency case and, thus, parents are not entitled to a change in judge. the state (i.e. CPS) would reasonably be expected to take, such as the
provision of appropriate rehabilitative or treatment services, to enable
26. The Pima County Juvenile Court will be initiating a pilot TPR mediation children to remain safely at home before they are placed in foster care.
project in five of its courtrooms in early 2005. This project will involve It also refers to those actions the state would reasonably make to
mandatory referral to mediation between the initial severance hearing reunite foster children with their biological parents. (TPR motions or
and pre-trial conference. The initial severance hearing will be handled petitions) cannot be filed without consistent reasonable efforts
by the same judge that handled the dependency while the pre-trial findings by the juvenile court.” This description of reasonable efforts
conference will be handled by the judge assigned to the jury trial. The was drawn from a letter written by the Honorable Leonard P. Edwards,
court is also initiating a mandatory permanency mediation pilot project, Presiding Juvenile Court Judge in Santa Clara County, California.
also starting in early 2005. Parties will be required to go to mediation (1995) Resource Guidelines: Improving Court Practices in Child Abuse &
prior to the permanency planning hearing. Courtrooms that will not be Neglect Cases (Pg. 167-168). Reno, NV
participating in the mandatory TPR and permanency mediation projects
will have the option of referring parties to mediation but it will not be 38. Many court appointed attorneys handle both dependency and
mandatory. The court anticipates that expanded mediation will reduce delinquency cases. Attorneys may have to reschedule hearings for both
the number of cases that go to contested TPR bench and jury trials. types of cases when a jury trial is scheduled.
27. Mediation is conducted by either a court-employed, contracted, or 39. The state has provided funding for additional AGs and CPS case
volunteer mediator. Settlement conferences may be facilitated by the managers. However, the funding was given to meet only the
judge who handled the dependency phase, the judge assigned to the dependency caseloads projected through fiscal year 2005. It did not
jury trial, or a different judge, depending on the county. include funding to increase staff to account for the additional time
necessary to prepare for and present at jury trials. At the same time,
28. As shown, trial management conferences for jury trials are unique to additional funding has not been provided at the county level for
Maricopa County. Interviews indicated the judges in Maricopa County attorneys who represent parents and children in these matters, and
require only attorneys to attend these conferences. jury trials dramatically increase work demands for these key
professionals as well.
29. Arizona law and court rules do not specify a time limit for holding
TPR bench or jury trials in cases involving TPR petitions. However, 40. Adoption and Permanency Guidelines (Page 93).
almost all TPR matters in Arizona involve motions, not petitions.
41. A recent discussion with the Chief Counsel for the Protective Services
30. Based on information provided by the Administrative Office of the Division, Office of the Arizona Attorney General, indicated that
Arizona Supreme Court, Dependent Children’s Services Division. Maricopa County may be experiencing a substantial increase in jury
trial requests and jury trials that may actually be held.
31. While Yavapai County has not completed a termination jury trial to
verdict yet, the Yavapai County Juvenile Court holds jury trials on 42. The Pima County Juvenile Court Center has two courtrooms with jury
Wednesdays through Fridays. boxes and adjoining jury deliberation rooms. It does not have jury
assembly rooms. The Maricopa County Juvenile Court does not have
32. However, the judges handling jury trials in Maricopa and Pima counties any jury boxes nor does it have any jury assembly or deliberation rooms.
have initiated some steps that are intended to minimize the frequency
of cases bouncing from jury to bench trial.
33. Guardians Ad Litem (GALs) may be appointed by the court for
children and/or parents. GALs are almost always attorneys, but their
roles are different than attorneys appointed to represent children or
parents. In brief, the GAL is appointed to represent the “best
interests” of the child or parent. The child or parent may not agree
with the GAL’s assessment regarding what is in their best interest.
Attorneys for children and parents, on the other hand, must
advocate for and represent their clients’ wishes.
34. CASA volunteers are trained volunteer advocates who speak for the
best interests of children in court. Today, more than 900 CASA
programs are in operation, with 70,000 women and men serving as
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4001 N. 3rd Street, Suite 160 2850 N. Swan Road, Suite 160
Phoenix, AZ 85012 Tucson, AZ 85712
(602) 266-0707 (520) 795-4199
www.azchildren.org
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