In re Thomas D.

Citations: 231 Ariz. 29; 290 P.3d 223; 648 Ariz. Adv. Rep. 7; 2012 Ariz. App. LEXIS 182Docket: No. 1 CA-JV 11-0223

Court: Court of Appeals of Arizona; November 20, 2012; Arizona; State Appellate Court

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Judge Swann addressed the appeal by Thomas D. regarding a juvenile court order that terminated his probation unsuccessfully and mandated registration as a sex offender. The court determined that the state failed to comply with the necessary revocation procedures under Ariz. R.P. Juv. Ct. 32 when seeking to terminate probation based on alleged violations, instead of following the insufficient procedures set forth in Ariz. R.P. 30 Juv. Ct. 31.

Thomas, at age thirteen, was placed on one year of probation for attempted sexual assault, with a special condition to enroll in a formal sexual offending treatment program for at least six months. Throughout his probation, reports from his probation officer consistently indicated satisfactory to outstanding progress, with no unsatisfactory performance noted. However, just days before the end of his probation, the probation officer filed a motion to terminate it, stating Thomas had completed required programs and had no new referrals.

During the review hearing, the court inquired about Thomas’s treatment requirement, but the probation officer expressed uncertainty about whether Thomas had received the treatment, suggesting it might not be his fault. Despite the positive feedback from the court regarding Thomas’s cooperation and progress, counsel later filed a request for successful termination of probation, supported by a letter from Thomas’s therapist. The therapist noted Thomas had been in counseling for two years and faced challenges in receiving timely services due to his transfers between counties and bureaucratic delays. Counsel argued that any perceived failure to complete treatment was beyond Thomas's control and highlighted his ongoing efforts to obtain necessary services while on wait-lists for treatment programs.

The state opposed the successful termination of Thomas's probation, arguing he failed to comply with the requirement of completing at least six months of formal sex offender treatment. The lack of evidence showing that Thomas had completed the treatment led the state to request that the court order him to register as a sex offender. The juvenile court, based solely on the written submissions and without a hearing, concluded that Thomas had not met the probation conditions. It noted insufficient information regarding the completion of treatment and the risk of reoffending, ultimately ordering Thomas to be "terminated from probation unsuccessfully" and to register as a sex offender until age 25. 

Thomas appealed, asserting that the court abused its discretion in terminating his probation and mandating sex offender registration because he did not willfully violate the treatment condition and was still open to rehabilitation. The state contended that a willful violation was unnecessary for probation termination. During oral arguments, the state asserted for the first time that Thomas's probation had automatically terminated after one year. However, this claim was rejected, and the court affirmed that it had explicitly terminated Thomas's probation based on the state's request regarding his failure to comply with the terms. The probation officer's motion for termination was filed prior to the one-year term's expiration, indicating the court retained jurisdiction over the matter despite the term ending.

The court abused its discretion by applying Ariz. R.P. Juv. Ct. Rule 31 instead of Rule 32 during the unsuccessful termination of Thomas's probation for an alleged violation. Rule 31(D) allows termination of probation upon request from the probation officer, the juvenile, or the court after notice and response, but does not permit the state to seek unsuccessful terminations. It is designed for early terminations of successfully completed probation. Although the case In re Themika M. acknowledged the possibility of unsuccessful terminations, it involved a probationer who had repeatedly violated her conditions and did not challenge the procedural safeguards of Rule 32. In contrast, Thomas had complied with his probation conditions as much as possible and was not deemed a defiant juvenile. The court recognized his cooperation, and there was no accompanying Rule 32 petition or hearing to address concerns about his treatment. Consequently, Thomas was denied the opportunity to contest the state's claims or to justify any potential violations, which violated his rights under the applicable procedural rules.

The juvenile court's decision in this case had significant implications beyond those in the Themika M. case. Thomas's perceived non-compliance with probation led to his unsuccessful termination and the requirement to register as a sex offender, resulting in long-lasting adverse effects. Rule 32 mandates specific procedures for revoking probation, including a petition, probable cause determination, advisory hearing, and evidentiary hearing where the state bears the burden of proof. The state improperly sought Thomas's termination under Rule 31, rather than following Rule 32, which denied him due process and the opportunity to contest the allegations. The court erred by not applying Rule 32, leading to an abuse of discretion and an improper basis for the sex offender registration requirement. Consequently, the order for unsuccessful termination is vacated, and the case is remanded for consideration of Thomas's motion for successful termination, including any participation in sex offender treatment. The court also denied the state's motion to supplement the record with new information, stating it was irrelevant to their opinion. The jurisdiction of the juvenile court regarding post-probation issues remains undecided.

Thomas contended in juvenile court that his conduct while on probation did not justify the requirement for sex offender registration. He did not challenge the absence of Rule 32 procedures, likely because he was the movant seeking to terminate probation under Rule 31. The state did not pursue an unsuccessful termination, which limited Thomas's ability to address this matter at the lower court level, leading to his arguments being considered on appeal. Continuing probation for a juvenile who has not met all conditions but is rehabilitated may be seen as unnecessary. An unsuccessful termination would prevent Thomas from applying to set aside his adjudication and have his records expunged under A.R.S. 8-348 and 8-349. At Thomas's last hearing, the court was unsure if sex offender registration was pending, and he did not have the chance to address this in a due process-compliant manner. Although the court sought briefs regarding his treatment completion, including counsel's arguments about sex offender registration, no additional hearings were held on that topic.