IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO
E.V., A MINOR UNDER 18 YEARS OF AGE,
Petitioner,
v.
HON. LISA ABRAMS, JUDGE OF THE
SUPERIOR COURT OF THE STATE OF ARIZONA,
IN AND FOR THE COUNTY OF PIMA,
Respondent,
and
THE STATE OF ARIZONA,
Real Party in Interest.
No. 2 CA-SA 2022-0024
Filed July 1, 2022
Special Action Proceeding
Pima County Cause No. JV20210204
JURISDICTION ACCEPTED; RELIEF GRANTED
COUNSEL
Megan K. Page, Pima County Public Defender
By David J. Euchner and Anthony Zinman, Assistant Public Defenders, Tucson
Counsel for Petitioner
Laura Conover, Pima County Attorney
By Myles A. Braccio, Criminal Appeals Section Chief, Maile Belongie,
Deputy County Attorney and Vince George, Deputy County Attorney,
Tucson
Counsel for Real Party in Interest
E.V. v. HON. ABRAMS
Opinion of the Court
OPINION
Presiding Judge Eckerstrom authored the opinion of the Court, in which
Chief Judge Vásquez and Judge Espinosa concurred.
E C K E R S T R O M, Presiding Judge:
¶1 In this special action, E.V. seeks review of the respondent
judge’s order that he be placed in a program to restore his competency. He
contends the respondent erred by failing to comply with A.R.S.
§ 8-291.08(D) by first determining “whether or not there is a substantial
probability of restoration within 240 days.” We reject that argument but
because the respondent erred in finding the provision inapplicable as a
matter of law, we accept special action jurisdiction and grant relief.
¶2 The state filed a delinquency petition alleging E.V., born
October 2007, committed child molestation and sexual conduct with a
minor under the age of fifteen. E.V. moved for, and received, a competency
evaluation and was ultimately examined by three experts. All three
evaluators concluded E.V. was not competent. One evaluator opined E.V.
could be restored to competency within six months, while another
determined there was not a substantial probability he could be restored
within that time. The third evaluator concluded she could not “state
definitively” that E.V. would be restored within six months.
¶3 At the competency hearing, E.V. argued that, under
§ 8-291.08(D), the juvenile court was required to dismiss the proceeding
unless it was “substantial[ly] probabl[e]” E.V. “can be restored within 240
days.” The respondent judge, however, accepted the state’s argument that
subsection (D) applied only after a juvenile was “already in” a competency
restoration program and the issue was then whether the treatment should
be extended past the presumptive 180 days established by the juvenile
competency statutes. Thus, she expressly declined to consider, under
subsection (D), whether there was “not a substantial probability” that E.V.
would be restored within 240 days and considered only whether he “may
be restored.” This petition for special action followed.
¶4 Our exercise of jurisdiction is appropriate; this case presents
an important legal issue of first impression and E.V. does not have a
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E.V. v. HON. ABRAMS
Opinion of the Court
meaningful remedy by appeal. See Potter v. Vanderpool, 225 Ariz. 495, ¶¶ 6-7
(App. 2010) (exercising special action jurisdiction to address legal issues in
competency proceedings). Arizona’s juvenile competency statutes span
from A.R.S. §§ 8-291 through 8-291.11. A juvenile is incompetent if the
juvenile “does not have sufficient present ability to consult with the
juvenile’s lawyer with a reasonable degree of rational understanding or
who does not have a rational and factual understanding of the proceedings
against the juvenile.” § 8-291(2). An incompetent juvenile may not
participate in a delinquency proceeding. § 8-291.01(A). The state or
juvenile may request, or the court may order on its own motion, a
competency evaluation, which typically concludes in a competency hearing
after the juvenile is examined by several mental health experts. See generally
§§ 8-291.01 through 8-291.11. A juvenile fitting the statutory criteria may
be ordered to participate in a competency restoration program.
§ 8-291.08(C).
¶5 This case centers on the interplay between subsections (C)
and (D) of § 8-291.08, which governs competency hearings and restoration
orders:
C. If the court initially finds that the juvenile is
incompetent but may be restored to
competency, the court shall order that the
juvenile undergo an attempt at restoration to
competency.
D. If the court initially finds that the juvenile is
incompetent and there is not a substantial
probability that the juvenile will be restored to
competency within two hundred forty days, the
court shall dismiss the matter with prejudice
and shall initiate civil commitment proceedings,
if appropriate. The court may appoint a
guardian ad litem to proceed with a
dependency investigation.
¶6 On review, E.V. argues the respondent judge misinterpreted
§ 8-291.08 and that “it is clear that the juvenile court is supposed to consider
the potential for an incompetent child to be restored, and that the threshold
for that determination is whether or not there is a substantial probability of
restoration within 240 days.” The state counters that the statute “requires
an attempt at restoration unless there is not a substantial probability that
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E.V. v. HON. ABRAMS
Opinion of the Court
the juvenile might be restored to competence, for example, a condition akin
to permanent incompetency.”1
¶7 The parties depart on the question whether the juvenile court,
in considering subsection (D), must decide whether there is a “substantial
probability that the juvenile will be restored to competency within two
hundred forty days.” According to E.V., the court necessarily must decide
that there is a substantial probability the juvenile can be restored within the
statutory time limit, as an implicit component of deciding whether there is
not such a probability. The state counters that the question before a juvenile
court is whether the evidence supports the conclusion the juvenile cannot
be restored in time—that is, that there is “not a substantial probability of
restoration.” Under the state’s view, answering this question does not
require the court to additionally answer the affirmative question whether
there is a substantial probability the juvenile could be restored. It may
simply be the case, instead, that the evidence does not allow a conclusion
that restoration is unlikely or that restoration is substantially probable.
¶8 We interpret statutes to give effect to the legislature’s intent,
and the primary evidence of that intent is the statute’s plain language. See
Wilks v. Manobianco, 237 Ariz. 443, ¶ 8 (2015). The state’s reading hews
closer to the statute’s language—requiring action by the court only if it finds
“there is not a substantial probability” of restoration. § 8-291.08(D). And,
unlike E.V.’s reading, the state’s view does not risk reading subsection (C)
out of existence. We are required to read all the provisions of a statute
together and may not adopt a reading that disregards a provision. See City
of Tucson v. Clear Channel Outdoor, Inc., 209 Ariz. 544, ¶ 31 (2005)
(“Whenever possible, we do not interpret statutes in such a manner as to
1The state’s precise interpretation on review is difficult to pin down
as it appears internally inconsistent. For example, the state contends that
subsection (D) “provides an avenue for the trial court to make an initial
finding that there is not a substantial probability of restoration” within 240
days. But it also asserts that the court need not consider “at the initial
competency stage that there is a substantial probability of restoration.” It
is not clear how a court could take advantage of this “avenue” without
considering the potential for restoration at the initial hearing. And,
subsection (D) expressly requires the court to consider that question
“initially,” not at some later stage in the process, a point the state later seems
to concede, noting that subsection (D) “applies to the small portion of
incompetent juveniles for which the trial court finds, initially, that there is
not a substantial probability of restoration in eight months.”
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E.V. v. HON. ABRAMS
Opinion of the Court
render a clause superfluous.”). Under E.V.’s suggested interpretation that
subsection (D) requires an affirmative finding that a juvenile is substantially
likely to be restored, subsection (D) would effectively subsume subsection
(C) by requiring a positive finding of a substantial probability of restoration
before a court could find a juvenile “may be restored to competency.”
¶9 Instead, if a juvenile is restorable, then the court will order the
juvenile to undergo restoration treatment unless the evidence shows the
juvenile cannot be restored within the statutory time limit. Put another
way, the only determination required by § 8-291.08(D) is whether the
evidence establishes there is not a reasonable probability of restoration. The
statute does not require the court to answer the inverse of that question.
¶10 The state’s interpretation is consistent with the other
governing statutes. 2 “When possible, we seek to harmonize statutory
provisions and avoid interpretations that result in contradictory
provisions.” Premier Physicians Grp., PLLC v. Navarro, 240 Ariz. 193 ¶ 9
(2016). For example, § 8-291.07 does not require appointed experts to opine
whether there is a substantial probability of restoration within 240 days.
Instead, the expert must merely include in the report “whether restoration
can be accomplished in six months or less.” § 8-291.07(C)(3). Only after
restoration has begun is a mental health expert required to evaluate
whether “there is no substantial probability” of the juvenile regaining
competency before the restoration order expires. § 8-291.10(A)(3). And
subsection (H) of that statute similarly requires the court to end restoration
and dismiss the charges if, after a status hearing, “there is not a substantial
probability that the juvenile will regain competency within two hundred
forty days after the date of the original finding of incompetency.”
Requiring a juvenile court to first determine whether there is a substantial
2 Revisions during the legislative process also support the state’s
reading. When § 8-291.08 was first proposed, it did not contain the
language now appearing in subsection (D). Introduced Version S.B. 1083,
§ 9, 44th Leg., 2d Reg. Sess. (Ariz. 2000). Subsection (D) was inserted to
direct the juvenile court how to proceed if a juvenile was non-restorable—
that is, a juvenile that could not be restored within the maximum time
established by statute. Sen. Adopted Amends. to S.B. 1083 (Jud.), 44th Leg.,
2d Reg. Sess. (Ariz. 2000); S. Fact Sheet for S.B. 1083, 44th Leg., 2d Reg. Sess.
(May 9, 2000) (noting amendment “[p]rovides a guideline for the court in
making a disposition relating to when a juvenile is incompetent and not
restorable at the initial hearing”). This revision history demonstrates the
legislature did not contemplate a finding that a juvenile likely is restorable.
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E.V. v. HON. ABRAMS
Opinion of the Court
likelihood of restoration is inconsistent with the court’s obligation to later
evaluate whether there is not such a likelihood.
¶11 And, contrary to E.V.’s reasoning, it is not necessary to
distinguish between the use of the term “may” in subsection (C) and the
phrase “substantial probability” in subsection (D); that difference injects no
ambiguity. Subsection (C) establishes that an incompetent juvenile who is
restorable is eligible for restoration treatment. Subsection (D), in turn,
establishes what it means to be non-restorable: that there is no substantial
probability the juvenile could be restored within 240 days.
¶12 Nor do we find the parties’ discussions of the burden of proof
or their comparisons with adult competency proceedings useful in
resolving the question before us. That question is instead answered by the
statute’s plain language: the court need only consider whether there is not
a probability the juvenile can be restored within statutory time limits based
on available evidence. However, the state’s interpretation would make the
juvenile procedure the most consistent with adult procedure. The adult
statutes and rules “require restoration treatment unless the evidence shows
the defendant will not become competent within twenty-one months.”
Nowell v. Rees, 219 Ariz. 399, ¶ 16 (App. 2008). “If such evidence exists, the
court need not order fruitless treatment.” Id.
¶13 Last, insofar as E.V. suggests the juvenile court is required to
make an express finding under subsection (D), nothing in the statutory
language requires a court to do so. Instead, we would presume the court
made any findings necessary to support its conclusion. See Mary Lou C. v.
Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, ¶ 17 (App. 2004) (“[W]e will presume
that the juvenile court made every finding necessary to support [its order]
if reasonable evidence supports the order.”). Here, however, the
respondent judge’s only error lies in her express decision to disregard
subsection (D) and decline to consider whether the evidence showed there
was no substantial probability of restoration.3
¶14 We accept special action jurisdiction and direct the
respondent judge to reconsider her order that E.V. enter a competency
3 Despite asking this court to decline to accept special action
jurisdiction in this case, the state does not defend the respondent’s
interpretation that § 8-291.08(D) need not be considered at the initial
hearing.
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E.V. v. HON. ABRAMS
Opinion of the Court
restoration program in light of § 8-291.08(D). In doing so, we take no
position on the merits of that issue.
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