Benavidez Law Blog

There's no such thing as "attempted felony murder" in Arizona...

In a unanimous panel opinion, the Arizona Court of Appeals, Division 1, ruled that there can be no offense of "attempted felony murder" under Arizona law.  The Court explained its reasoning in State v. Moore, which depends on the legal defininition of felony murder.  Felony murder is an offense that occurs when a person is killed during the commission of a felony offense.  The death of the person need not have been intended by the defendant -- the only intent that is required is the intent to commit the felony offense.  In effect, the intent to commit murder is supplied by the felony murder statute.

In contrast, the offense of attempt does require an intent -- the intent to commit another offense, even though that offense does not actually occur.  The Moore Court looked at these two offenses together, and reasoned that a charge of "attempted felony murder" would require the State to prove that the defendant intended to cause an unintended death.  In other words, the charge would require proof that a person intended an unintended consequence -- a logical absurdity.  Accordingly, the Court ruled that the offense of "attempted felony murder" does not exist in Arizona.

The full opinion can be found at: http://www.cofad1.state.az.us/opinionfiles/CR/CR07-0475.pdf.

US Supreme Court Decides - Navy 1, Whales 0

Winter v. National Resources Defense Counsel, Inc.

United States Supreme Court

Argued October 8, 2008 - Decided November 12, 2008

The full opinion can be found here.

In March of 2007, the National Resources Defense Counsel filed a lawsuit against the Secretary of the United States Navy in an attempt to prevent the Navy from using Mid-Frequency Active sonar in training exercises off the coast of Southern California.  The National Resources Defense Cousel sought declaratory and injunctive relief on the grounds that the training exercises violated the National Environmental Policy Act of 1969 and other federal laws.  The waters off the coast of California contain at least 37 species of marine mammmals.  The National Resources Defense Counsel asserted that the MFA sonar causes serious injury to these mammals.

In a 6-3 decision, the United States Supreme Court held in favor of the Navy.  The Court stated "the Navy's need to conduct realistic training with active sonar to respond to the threat posed by enemy submarines plainly outweighs the interests advanced by the plantiffs."

Justices Alito, Scalia, Thomas and Kennedy joined an opinion written by Chief Justice Roberts.  Justice Breyer filed an opinion concurring in part and dissenting in part, in which Stevens joined as to the concurrence.  Justices Ginsburg and Souter dissented outright.

Arizona Court of Appeals Holds that Ineffectual Assistance of Counsel does not always Justify Reversing an Order Terminating Parental Rights

       On November 7, 2007, Division Two of the Arizona Court of Appeals rendered an opinion in John M. v. Arizona Department of Economic Security and Shannon M.  John M. appealed the termination of his parental rights on the grounds that he had received ineffectual assistance of counsel.  John argued that the Strickland v. Washington, 466 U.S. 668 (1984) standard that a party must show both that the representation received fell below professional norms and that the faulty representation materially affected the outcome of the case was only applicable to criminal proceedings.  Instead, John argued that the court should evaluate claims of ineffective assistance of counsel under a due process standard.  The State argued that the Strickland test should be applied, and that John's appeal should be denied because he did not show that he was prejudiced by errors made by his attorney.

       The Court noted that no Arizona court has directly addressed whether ineffective assistance of counsel justifies reversing an order to terminate parental rights, and if so, what circumstances justify reversing that order.  The Court determined that the Strickland standard was relevant, even though that case involved a criminal proceeding, because the case relied on due process and fairness concerns and not exclusively on the Sixth Amendment.  However, the Court believed that the distinction between criminal proceedings and termination of parental rights could be relevant to the standard of review applied to a case, because cases involving the termination of parental rights must balance the liberty interest of the parent in raising the child and the child's liberty interest in safety and security.  The Court also believed that the role of the attorney in a termination proceeding, while important, is not as significant as the role of an attorney in a criminal proceeding, because juvenile judges are not limited to the evidence presentedand may direct further inquiry to make certain that parties are properly represented.

       The Court explicitly decided not to rule on whether Arizona allows only a claim of ineffective assistance of counsel as grounds to terminate parental rights, or what would be required to show incompetence.  Instead, since the Strickland standard applies in termination proceedings, John M. would need to demonstrate that errors made by his attorney negatively impacted the outcome of his case.  John M. did not make such a showing, so the trial court's Ruling was affirmed.

Arizona Court of Appeals Holds that Private Action to Terminate Parental Rights may be Concurrently Adjudicated during Dependency Proceeding

Full opinion can be found here.

     On September 30, 2008, Division Two of the Arizona Court of Appeals held in Bobby G. v. Arizona Department of Economic Security, 540 Ariz. Adv. Rep. 6 (2008) that a private Petition to Terminate Parental Rights may be filed pertaining to a child already involved in a dependency proceeding. In this case, the minor child was adjudicated dependent, and her father was actively involved in his case plan and working toward reunification. The Arizona Department of Economic Security asked the Court for additional time to accomplish reunification at the permanency hearing and received an additional ninety days. The attorney for the minor objected at that time, and thereafter filed a Petition to Terminate Parental Rights under A.R.S. §8-533. This statute authorizes interested parties to file a Petition to Terminate Parental Rights, and is one of two statutory mechanisms in Arizona that allow a termination of parental rights. The second method of terminating parental rights in Arizona is codified under Section 10 of Title 8 in the Arizona Revised Statutes and applies to children who have been adjudicated dependent. These statutes allow the Department of Economic Security to file a Petition to Terminate Parental Rights after receiving authorization from the Court in a dependency proceeding. The private Petition to Terminate Parental Rights was granted, and the father appealed.

     The father argued that counsel for the minor child was precluded from filing a private Petition to Terminate Parental Rights because the child was already involved in a dependency proceeding, and therefore only termination proceeding filed pursuant to Section 10 of Title 8 would be appropriate. The Appellate Court disagreed. The Court found that nothing in the language of the statutes precluded concurrent private termination actions and dependency proceedings prior to Court authorization of a termination proceeding as part of the dependency. The Court found further support for its position in Ariz. Juv. R. Ct. Rule 64(B), which states that nothing precludes the filing of a private petition to terminate parental rights on cases subject to dependency proceedings filed after July 1998. Therefore, appropriate parties can pursue termination of parental rights despite an ongoing dependency proceeding.

     The Court further affirmed that the father's rights to due process and equal protection had not been violated, that there was sufficient evidence of abandonment, and that there was evidence that termination was in the best interests of the child.