In re the Maricopa County Juvenile Action

938 P.2d 67, 189 Ariz. 18, 221 Ariz. Adv. Rep. 42, 1996 Ariz. App. LEXIS 159
CourtCourt of Appeals of Arizona
DecidedJuly 23, 1996
DocketNo. 1 CA-JV 95-0093
StatusPublished
Cited by1 cases

This text of 938 P.2d 67 (In re the Maricopa County Juvenile Action) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re the Maricopa County Juvenile Action, 938 P.2d 67, 189 Ariz. 18, 221 Ariz. Adv. Rep. 42, 1996 Ariz. App. LEXIS 159 (Ark. Ct. App. 1996).

Opinion

OPINION

FIDEL, Presiding Judge.

We hold in this decision that the juvenile court may not order human immunodeficiency virus (“HIV”) testing of a juvenile sex offender as a condition of probation ex-[19]*19eept upon the request of the victim, or the victim’s parent or guardian. We further hold that a probationary term ordering a juvenile not to “patronize any place where [sexually stimulating or sexually-oriented material or entertainment] is available” is unconstitutionally vague.

I. BACKGROUND

The juvenile was adjudicated delinquent after entering an admission before the court that he had rubbed the penis of his five-year-old brother while they watched an x-rated video. The juvenile was fourteen years old at the time of his offense. At the disposition hearing, the juvenile court imposed the standard terms of probation as well as an “Addendum to Terms and Conditions of Probation.” The juvenile argues that the court improperly imposed the following terms:

8. [You shall] [s]ubmit to a blood test for the presence of the human immunodeficiency virus pursuant to A.R.S. § 8-241N.
9. You shall not possess any sexually stimulating or sexually oriented material as deemed inappropriate by treatment staff, nor patronize any place where such material or entertainment is available.
10. You shall be responsible for your appearance at all times. This includes the wearing of undergarments and clothing in places where another person may be expected to view you.
11. You shall not hitchhike or pick up hitchhikers.
13. You shall not operate a motor vehicle alone without specific written permission of the probation officer or unless accompanied by an adult approved in writing by the probation officer.

II. POTENTIAL EXPOSURE TO HIV

In Arizona Revised Statutes Annotated (“A.R.S.”) § 8-241 (N), the legislature authorized the juvenile court to order HIV testing of a juvenile sex offender upon the victim’s request.1 The juvenile argues that this statute is unconstitutional because it violates the Fourth Amendment’s protection against unreasonable searches and seizures. We substantially resolved that question in State v. Superior Court (JV-511263), 187 Ariz. 411, 930 P.2d 488 (Ariz.App. 1996). There we held that AR.S. § 8-241 (N) does not violate the Fourth Amendment prohibition against unreasonable searches and seizures when the juvenile’s conduct could have possibly resulted in the transmission of HIV.2

In JV-511263, we left open the question whether the statute constitutionally may be applied when the juvenile’s acts could not have exposed the victim to HIV. See id., 187 Ariz. at 418, 930 P.2d at 495. Counsel for the juvenile asserts that issue in this case. The juvenile was found delinquent upon his admission to the juvenile court that he had rubbed his brother’s penis; counsel argues that “the victim was not exposed to any bodily fluids whatsoever.” In consulting the juvenile record, however, we find that the juvenile made a broader admission to the juvenile probation officer than he provided [20]*20by way of factual basis in open court, including acts that may have exposed the victim to his bodily fluids.

The juvenile court was entitled to consider the juvenile’s admissions to his probation officer in disposing of the juvenile’s offense. State v. Jones, 147 Ariz. 353, 355, 710 P.2d 463, 465 (1985) (sentencing court may consider substantiated “information” that is part of the record). Upon review of the extended record, we do not find the issue of unconstitutionally overbroad application framed for decision here.3

III. “ON THE REQUEST OF THE VICTIM”

The juvenile next argues that HIV testing should not have been imposed because neither the victim nor the victim’s parent or guardian requested testing. We agree. We base this holding on statutory, not constitutional, grounds.

A.R.S. § 8-241(N) provides in part:
On the request of the victim of a delinquent act that may have involved significant exposure ... or that if committed by an adult would be a sexual offense, the prosecuting attorney shall petition the adjudicating court to require that the delinquent child be tested for the presence of the human immunodeficiency virus. If the victim is a child the prosecuting attorney shall file this petition at the request of the victim’s parent or guardian.

(Emphasis added.)

“The cardinal principle of statutory interpretation is that we must follow the plain and natural meaning of the statute to determine what the legislature intended.” Ring v. Taylor, 141 Ariz. 56, 70, 685 P.2d 121, 135 (App. 1984). The language of A.R.S. § 8-241 is clear. The statute authorizes testing only “on the request of the victim”; it neither requires all juvenile sexual offenders to be tested nor authorizes the court or prosecutor to initiate HIV testing on its own.

The State argues that HIV testing of the juvenile could provide potentially rehabilitative information for the juvenile’s family. But the victim’s mother, who is also the juvenile’s mother, did not request such information. Nor did the juvenile court find reason to appoint a guardian ad litem for the victim. The purpose of A.R.S. § 8-241(N) is to enable victims (or parents or guardians) who so wish to obtain information that may affect the victim’s health and welfare. The purpose is not to equip the juvenile court on its own motion to obtain information for the benefit of juvenile probationary authorities or the juvenile offender and his family. Had the legislature wished to accomplish these broader purposes, it could have enacted a statute broader in scope.4

The State argues that A.R.S. § 8-241(N) should not be read to limit the court’s power to order HIV testing on its own motion as an appropriate probationary term. This argument, however, overlooks that A.R.S. § 8-241(N) is not the only statute that governs the courts’ ability to impose such tests. A.R.S. § 36-663, prohibits involuntary HIV testing unless “specifically authorized or required by this state or by federal law.”5 As we have indicated, neither A.R.S. § 8-241

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Bluebook (online)
938 P.2d 67, 189 Ariz. 18, 221 Ariz. Adv. Rep. 42, 1996 Ariz. App. LEXIS 159, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-maricopa-county-juvenile-action-arizctapp-1996.