In Re Themika M.

81 P.3d 344, 206 Ariz. 553, 415 Ariz. Adv. Rep. 63, 2003 Ariz. App. LEXIS 211
Court of Appeals of Arizona·Decided December 24, 2003·No. 2 CA-JV 2003-0045·Published·Cited by 10 cases

Opinion

OPINION

ESPINOSA, Chief Judge.

¶ 1 Themika M., born May 27, 1986, appeals from the juvenile court’s order terminating her probation as unsuccessful and designating an earlier, open-ended offense a class six felony. See A.R.S. § 13-702(G). Themika argues that, under Rule 32(E)(5), Ariz. R.P. Juv. Ct., 17B A.R.S., the juvenile court’s authority was limited to revoking, modifying, or continuing her probation and that the court lacked jurisdiction to terminate her probation or label the termination unsuccessful as it did.

¶ 2 In the fourteen months between February 2002 and April 2003, Themika was the subject of four delinquency petitions, two delinquency adjudications, and two petitions to revoke probation. She was placed on probation first in July 2002 for a twelvemonth term after admitting four of six counts alleged in the first three delinquency petitions. The most serious of the charges was unlawful use of a means of transportation, amended from a class five felony to the open, class six charge Themika admitted.

¶ 3 Four months after first being placed on probation, she committed a misdemeanor domestic violence assault on her mother in November 2002, which the fourth delinquency petition alleged. A contemporaneous petition to revoke probation alleged the assault and various other petty violations of probation conditions committed between August and October 2002. The court adjudicated Themika delinquent for the second time, found her in violation of probation based on *554 her admissions, and in December 2002 ordered her continued on probation until October 2003.

¶4 Between January and March 2003, Themika continued to violate assorted conditions of her probation, and a second petition to revoke probation was filed in April. After she admitted three of the five counts alleged in the petition to revoke, the juvenile court found her in violation for the second time. At disposition, a month before her seventeenth birthday, the court declined to place Themika on juvenile intensive probation supervision (JIPS) and terminated her probation as unsuccessful.

¶ 5 A juvenile court has broad discretion in determining the proper disposition of a delinquent juvenile, In re Maricopa County Juvenile Action No. JV-510312, 183 Ariz. 116, 901 P.2d 464 (App.1995), and we will not disturb a disposition order absent an abuse of the court’s discretion. In re Maricopa County Juvenile Action No. JV-512016, 186 Ariz. 414, 923 P.2d 880 (App.1996). The court’s power to order any specific disposition is circumscribed, however, “in that it must be expressly granted by legislative act.” In re Maricopa County Juvenile Action No. J-74275, 117 Ariz. 317, 318, 572 P.2d 451, 452 (App.1977). Thus, “the initial disposition must be undertaken strictly within the authority specified in one of the subsections of [A.R.S.] § 8-[341(A) ].” Id. at 319, 572 P.2d at 453.

¶ 6 Placing Themika on probation at her initial disposition hearing in July 2002 was expressly authorized by § 8-341(A)(1)(b). Continuing her on probation in December 2002 after she admitted three of the five allegations in the first petition to revoke probation was also expressly authorized by Rule 32(E)(5). And, we conclude, the juvenile court’s decision to terminate Themika unsuccessfully from probation was likewise within the court’s authority pursuant to Rule 31(D), Ariz. R.P. Juv. Ct., and Rule 32(E)(5).

¶ 7 Rule 31(D) provides as follows:

Termination of Probation. The court may terminate the probation of the juvenile at any time prior to the eighteenth (18) birthday of the juvenile upon the request of the juvenile probation officer, motion of the juvenile, or its own motion after notice and opportunity for response from all parties. 1

¶ 8 Themika does not expressly argue that a termination of probation as unsuccessful differs in any critical way from a revocation of probation, which the juvenile court unquestionably has the power to order. See Ariz. R.P. Juv. Ct. 32(E)(5). To some extent, then, the issue presented is one of semantics, at least on these facts. Had the court instead stated it was revoking Themika’s probation and discharging her from supervision because she had failed to comply with its terms, its power to do so might have gone unquestioned.

¶ 9 By using the word “terminated” rather than “revoked,” however, the juvenile court implicitly invoked Rule 31(D), which, by its terms, permits the court to terminate probation at any time. Although the rule presumptively also encompasses early, successful terminations of probation, nothing in its language, nor in § 8-341(A), restricts probation terminations only to successful outcomes. Neither the rule nor the statute bars the court from terminating the probation of a persistently noncompliant juvenile, provided the procedural requirements of Rule 31(D) are first met, as they were in this case.

*555 ¶ 10 Our conclusion finds further, albeit tangential, support in Rule 31(C), Ariz. R.P. Juv. Ct., which empowers the juvenile court to “modify any [probation] condition which it has imposed ... after notice has been provided to the prosecutor and the juvenile.” The court’s general power to impose, modify, or revoke probation, we find, inherently includes the power to “terminate” that probation. Cf. In re John G., 191 Ariz. 205, 953 P.2d 1258 (App.1998) (lack of express authority allowing juvenile court to require fingerprinting as condition of probation did not preclude court’s doing so); In re Pima County Juvenile Action No. J-20705-3, 133 Ariz. 296, 650 P.2d 1278 (App.1982) (juvenile court has inherent power to impose conditions of probation, even though no statute grants specific authority).

¶ 11 In support of her argument to the contrary, Themika cites State v. Hensley, 201 Ariz. 74, 31 P.3d 848 (App.2001). The defendant in Hensley was not a delinquent juvenile but an adult who had violated the terms of his probation, imposed pursuant to A.R.S. § 13-901.01 (Arizona’s “Proposition 200”) for his possession of drugs and drug paraphernalia. On appeal, Division One of this court found the trial court had erred by terminating Hensley’s probation as unsuccessful, “rather than continuing it and imposing additional terms, as required by A.R.S. § 13-901.01

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In Re Themika M., 81 P.3d 344, 206 Ariz. 553, 415 Ariz. Adv. Rep. 63, 2003 Ariz. App. LEXIS 211 (Ark. Ct. App. 2003).

81 P.3d 344 (In Re Themika M.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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