IN RE: Termination of Parental Rights as to K.M. (2026)

OPINION

¶1 No one asked ten-year-old K.M. what she wanted before the juvenile court terminated her biological father's parental rights. No one even told her she had a biological father she didn't live with, or who he was. With K.M. thus in the dark, her court-appointed counsel revealed – only in the termination trial's closing argument – that she had exercised “substituted judgment” to decide that K.M.’s position was that terminating her (unknown) biological father's parental rights was in her best interests. This procedure deprived K.M. of her chance to be heard, and made the termination proceedings fundamentally unfair. See U.S. Const. amend. XIV, § 1; Ariz. Const. art. 2, § 4. We thus vacate the juvenile court's finding that terminating biological father Maurice M.’s parental rights is in K.M.’s best interests, and remand with instructions that the juvenile court determine whether K.M. can direct her own representation, and whether counsel may exercise substituted judgment on K.M.’s behalf.

FACTS AND PROCEDURAL HISTORY

A. Mother Moves K.M. to Arizona and Petitions to Terminate Father's Parental Rights.

¶2 K.M. was born to Maurice M. (“Father”) and Rebecca C. (“Mother”) in Alabama in August 2015. Mother and Father never married but co-parented K.M. together for a short time after her birth. Mother began a relationship with Derrell C. (“Stepfather”) in early 2017. In August 2018, Mother, Stepfather, and three-year-old K.M. moved from Alabama to Arizona. K.M. has lived with Mother and Stepfather in Arizona ever since.

¶3 In 2021, Father sought to establish parenting time with K.M. in an Alabama family court. The Alabama court dismissed his petition for lack of jurisdiction. In February 2022, Mother petitioned the juvenile court to establish legal decision-making, parenting time, and child support. The court dismissed Mother's petition because she failed to serve Father. In September 2022, Mother married Stepfather in Arizona. In September 2023, Mother petitioned the juvenile court to terminate Father's parental rights to K.M. The court dismissed that petition because it inadequately explained why termination would be in K.M.’s best interests.

¶4 Mother again petitioned to terminate Father's parental rights to K.M in September 2025. Mother alleged Father abandoned K.M. because although he knew where she lived, he had “not provided essential support, seen, nor maintained contact with [K.M.] for 7 years.” She argued termination would be in K.M.’s best interests because K.M. “has no knowledge of [Father]” and was raised by Mother and Stepfather beginning in 2017. Mother also said Stepfather intended to adopt K.M. if Father's parental rights were terminated, and that K.M.’s last name would be changed to Stepfather's.

¶5 The juvenile court appointed counsel to represent Father. The court did not appoint a best-interests attorney or a guardian ad litem. Instead, the court appointed attorney Stephanie Preciado (“Counsel”) to represent K.M. in the termination proceedings. See A.R.S. § 8-221(A) (“The court shall appoint an attorney for a child in all ․ termination of parental rights proceedings that are conducted pursuant to this title.”)

B. The Juvenile Court Holds a Termination Hearing.

¶6 Because Father objected to termination, the court set trial for February 13, 2026. Before trial, Counsel filed a short pretrial statement asserting only that K.M. agreed with Mother that Father's parental rights should be terminated, and that the evidence at trial would show both that Father abandoned K.M. and that termination would be in her best interests. Mother, Father, Stepfather, and Janet M. (“Maternal Grandmother”) all testified at trial. Counsel appeared on K.M.’s behalf.

1. Mother, Stepfather, and Grandmother Testify About K.M.’s Best Interests, Adjustment, and Well-Being.

¶7 Alleging Father abandoned K.M., Mother testified Father's relationship with K.M. was “vague” and “inconsistent” for the roughly eight years after Mother and K.M. moved to Arizona. She said Father last saw K.M. in person in July 2018, had exercised no parenting time since, and never exercised legal decision-making. She testified Father never sent K.M. cards, letters, or gifts, despite having Mother's address. She also testified Father made one $50 childcare payment in 2016 but had not otherwise contributed financially to K.M.’s care.

¶8 Mother said she never improperly interfered with Father's ability to maintain a relationship with K.M. But she testified that, in late 2021 or early 2022, she placed “boundaries” between Father and K.M., requiring Father to text Mother every Sunday for two months asking about K.M.’s well-being before he would be allowed phone contact with K.M. Mother claimed she did this not to keep Father from having any relationship with K.M., but because “there had been a lapse in contact from [Father] for an extended period of time” and K.M. had started referring to Stepfather as Father or Dad.

¶9 Mother testified termination was in K.M.’s best interests because it would allow K.M. to fully integrate into the family unit consisting of Mother, Stepfather, their other son, and their extended family members, who all live in the same neighborhood. She said K.M. and Stepfather have a strong relationship, that K.M. looks to Stepfather as a father figure and a parent, and that Stepfather plans to adopt K.M. and give her his last name. Mother also said termination and adoption would quell her fears about what would happen to K.M. if anything happened to Mother, causing K.M. to leave Arizona to live with Father.

¶10 Finally, Mother testified K.M. is emotionally stable, “well-adjusted,” participates in typical extracurricular activities like soccer, and does well in school – receiving all A and B grades. But she said K.M. does not know Father as a parent and “thinks [Stepfather] is her dad” and “has no recollection of [Father] at all whatsoever.”

¶11 Stepfather and Maternal Grandmother testified termination was in K.M.’s best interests because K.M. doesn't know Father and treats Stepfather as her parent. Stepfather testified K.M. calls him “Dad,” believes he is her dad, and does not know who Father is. Maternal Grandmother confirmed K.M. views Stepfather as her father and calls him “Dad” or “Daddy.”

2. Father Testifies He Wants to Be a Part of K.M.’s Life and Termination Is Not in Her Best Interests.

¶12 Father testified as follows. He had a close relationship with K.M. and parented her from birth until Mother and Stepfather moved her from Alabama in July 2018. He was absent from K.M.’s life for extended periods, could have done more to remain in her life, and doesn't currently know much about her. He appreciates what Mother and Stepfather have done to raise K.M., but believes K.M.’s life with them could continue uninterrupted without terminating his parental rights. He is willing to pay child support toward K.M.’s care and wants K.M. to know his extended family, his fiancé and their shared child, and his other child.

¶13 Father didn't pursue further legal action after the Alabama court dismissed his 2021 petition because he couldn't afford a lawyer and didn't fully understand his rights. Father knew of Mother's September 2022 petition because Mother texted him about it but he took no action to assert his legal rights before it failed.

¶14 Father disagreed with Mother's characterization of her “boundaries.” He found it difficult to meet Mother's demands because the two did not communicate well. And one of Mother's boundaries was requiring him not to tell K.M. he is her father, which he couldn't accept. In short, Father testified he wants a relationship with K.M. but that Mother's boundaries make it hard for him to do so.

3. Father Objects to Counsel's Use of Substituted Judgment on K.M.’s Behalf, Arguing K.M. Should Have Been Allowed to Give Her Own Position.

¶15 At the close of the trial, Counsel reasserted that Father's extended absence from K.M.’s life was abandonment and that termination would be in K.M.’s best interests because it would allow Stepfather to formally adopt K.M., bringing stability to her life. Explaining how she reached those conclusions, Counsel for the first time stated: “I actually have to use substituted judgment, believe it or not, because [K.M. is] ten and she has no idea that her stepdad is not her dad. She identifies him as dad. She thinks he's dad. She calls him dad.”

¶16 When asked, Counsel couldn't explain K.M.’s beliefs about her parentage. The court asked, “What's she told when, why she has a different last name?” Counsel responded: “She just knows it's different. She thinks it's unique and fun. She doesn't really have like a – like an idea or like she doesn't – it doesn't like – she just thinks it's unique. I know. Yeah, she's super cute. So, yeah, I – I – I think it's in her best interest.”

¶17 Father's closing argument emphasized that no one even told K.M. of the termination proceedings or that Father is her biological parent, thus keeping K.M. from forming and expressing her views:

“One, that from our perspective, it's problematic that the child doesn't know that – that we're here at a severance proceeding and that the child doesn't know that she has a biological father. That while obviously her attorney can use substituted judgment, that she's old enough to have a position and to be able to articulate a position. Two, stepdad can't adopt without the child being present at the proceeding, so the child is going to have to learn at some point that – that she has a biological father. And, you know, really, quite frankly, that she should have been told before this proceeding and she should be allowed to articulate that position.”

(Emphases added).

¶18 Father also argued for alternatives to termination that would allow K.M. to take Stepfather's name and maintain stability in her day-today life. The court took the matter under advisement.

C. The Juvenile Court Terminates Father's Parental Rights.

¶19 On February 19, 2026, the court granted Mother's petition, terminating Father's parent-child relationship with K.M. The court found Mother proved by clear and convincing evidence that Father abandoned K.M. because the evidence showed Father had no relationship with K.M. after she moved to Arizona in 2018, and because the evidence did not support Father's claim that Mother improperly interfered with his relationship with K.M.

¶20 The court also found termination was in K.M.’s best interests, purporting to rely in part upon K.M.’s own wishes and fears. Though K.M. was unaware of the termination proceedings and that Father is her parent, the court said it gave K.M.’s opinion “some weight” due to her “age and maturity.” In a comparable vein, though no one has yet told K.M. she has a father she doesn't know, the court found, based on Mother's testimony, that K.M. “fears what would happen if Mother were to die for some reason and she could be forced to be uprooted from her known family and home and placed with her father whom she does not know.” Separately, the court also found that Stepfather has fulfilled a parental role for years, “participat[ing] in all the usual roles of an active parent,” and that “K.M. deserves” the stability of Stepfather alone being her father.

¶21 Father timely appealed. We have jurisdiction. Ariz. Const. art. 6, § 9; A.R.S. § 8-235.

DISCUSSION

¶22 Father does not challenge the court's finding under A.R.S. § 8-533(B)(1) that he abandoned K.M. Instead, he appeals the court's finding that terminating his parental rights is in K.M.’s best interests. He argues K.M. didn't receive due process when Counsel exercised substituted judgment on her behalf without consulting with K.M. about Father, which kept her from forming and sharing her position on termination with the court, making the proceedings fundamentally unfair. Mother disagrees, claiming Father waived his due process arguments, limiting our review to fundamental error, which she contends didn't occur.

¶23 “To the extent possible, we avoid deciding constitutional issues if the case can be resolved on non-constitutional grounds,” State v. Rios, 225 Ariz. 292, 298 ¶ 12 (App. 2010) (citing Jeter v. Mayo Clinic Ariz., 211 Ariz. 386, 403 ¶ 76 n.23 (App. 2005)). Yet when reaching constitutional issues is “[ ]necessary in determining the merits of the action,” we do so. Petolicchio v. Santa Cruz Cnty. Fair and Rodeo Ass'n, 177 Ariz. 256, 259 (1994). Here, while Father makes isolated references to the inadequacy of the evidence to show that termination is in K.M.’s best interests, even those references are bound up in his constitutional arguments. There isn't enough nonconstitutional substance here to decide those issues separately. We thus decide the due process issue Father presents.

I. Father Has Third-Party Standing to Vindicate K.M.’s Rights to Due Process, and First-Party Standing Given Injuries to His Rights from the Conduct of the Proceeding Below.

¶24 Because Father argues that K.M., not he, was denied due process, we must first decide if he has standing. In Arizona, a litigant may have standing to defend the constitutional rights of a third person if: (1) the litigant has a substantial relationship to the third person; (2) the third person is unable to assert the constitutional rights on his or her own behalf; and (3) failing to grant the litigant standing would dilute the third person's constitutional rights. State v. B Bar Enters., Inc., 133 Ariz. 99, 101 n.2 (1982).

¶25 Father argues he satisfies all three prongs, and Mother doesn't disagree, arguing instead that K.M. was not denied due process. But Mother's lack of disagreement doesn't confer standing, which we analyze under the third-party standing test. The first prong is easy: as her biological parent, Father has a substantial relationship with K.M. See Doty-Perez v. Doty-Perez, 245 Ariz. 229, 232 ¶ 8 (App. 2018). The second prong is also clear: K.M. can't assert her due process rights on her own behalf because no one told her about her biological father, both creating the asserted due process problem, and keeping K.M. in the dark about any deprivation of due process. Without notice, K.M. can neither direct her representation nor assert her rights on appeal. See Matter of Rights to Use of Gila River, 171 Ariz. 230, 235-36 (1992) (parties must have adequate notice of a proceeding affecting their fundamental interests in order to defend those interests). The third prong likewise supports standing. Unless Father has standing, K.M.’s right to participate in the termination proceeding will be diluted, see B Bar Enters., Inc., 133 Ariz. at 101 n.2, or, more truly, eradicated. Without Father's participation in this appeal to vindicate K.M.’s due process rights, Counsel's exercise of judgment on K.M.’s behalf will go unchallenged, depriving K.M. of any means of challenging her own lack of agency and voice in the termination proceedings. Arizona Rule of Procedure for the Juvenile Court (“Juvenile Rule”) 306(b) underscores this, because it required Counsel to “keep the child informed ․ of the nature of each court proceeding ․ [including] the child's appellate rights.” Ariz. R.P. Juv. Ct. 306(b). Accepting the procedure employed in this case, which approved keeping K.M. in the dark about the termination proceeding, its nature, and Father himself, would necessarily have the effect of extinguishing K.M.’s appellate rights. Cf. id. That is not consistent with due process. See Gila River, 171 Ariz. at 235-36. Father has standing.

¶26 Beyond third-party standing, Father also has standing because he was injured by the procedural deficiencies he alleges in K.M.’s representation. “To establish standing, we require that [parties] show a particularized injury to themselves.” Advanced Prop. Tax Liens, Inc. v. Othon, 255 Ariz. 60, 63 ¶ 18 (2023) (quoting Bennet v. Brownlow, 211 Ariz. 193, 196 ¶ 17 (2005)). Father inarguably has a fundamental liberty interest in his parent-child relationship with K.M. Santosky v. Kramer, 455 U.S. 745, 753 (1982). He claims the termination proceeding was fundamentally unfair because K.M. wasn't allowed to meaningfully participate in it. Because the State can't deprive Father of his liberty interest in parenting K.M. without fundamentally fair procedures, id. at 753-54, he has alleged a particularized injury to himself. Advanced Prop. Tax Liens, 255 Ariz. at 63 ¶ 18.

II. Father Preserved His Due Process Argument.

¶27 We next address whether Father waived his due process argument. If he preserved it, our review is de novo, see Savord v. Morton, 235 Ariz. 256, 260 ¶ 16 (App. 2014) (citing Mack v. Cruikshank, 196 Ariz. 541, 544 ¶ 6 (App. 1999)), while if he waived it, we review only for fundamental error. See Brenda D. v. Dep't of Child Safety, 243 Ariz. 437, 447 ¶ 37 (2018) (citing Cecilia A. v. Ariz. Dep't of Econ. Sec., 229 Ariz. 286, 289 ¶ 11 (App. 2012)).

¶28 Mother says Father “waived his argument that both his and K.M.’s due process rights to a fair trial were violated when he not only failed to raise the argument in the juvenile court but affirmatively stated the opposite” by agreeing that Counsel could exercise substituted judgment. She therefore urges that fundamental error review applies, and that no fundamental error occurred. See Ruben M. v. Ariz. Dep't of Econ. Sec., 230 Ariz. 236, 239 ¶¶ 13-14 (App. 2012). Father says he raised below the argument he makes to us: that it was problematic that K.M. was old enough to have a position about whether termination was appropriate but didn't get to develop and share one, and that she should have been allowed to articulate it to the court.

¶29 We agree with Father. His counsel argued K.M. was improperly denied an opportunity to direct her own representation by articulating her position to her court-appointed attorney, and that she should have been told about Father, to allow herself to develop her position. This was enough to preserve his objection that her right to participate was violated, thus preserving the issue for appeal. See Volk v. Brame, 235 Ariz. 462, 469 ¶ 22 n.6 (App. 2014) (citing State v. Martinez, 172 Ariz. 437, 440 (App. 1992)) (“Though Father did not object with the ‘magic words’ of due process, he implicitly raised the same arguments below that he now presents [on appeal] and therefore adequately preserved the issue for our review.”).

¶30 Mother's argument to the contrary suffers from two flaws.

¶31 First, she claims Father consented to Counsel's substitution of her judgment for K.M.’s by acknowledging the ability of counsel to use substituted judgment. However, that acknowledgement was in the context of objecting to Counsel not telling K.M. about Father, and K.M. having no chance to develop her position. Mother's argument self-servingly ignores the context – essentially, everything else Father's counsel simultaneously said – to claim waiver. But waiver is the intentional relinquishment of a known right, or conduct demonstrating an intent to do so. Jessicah C. v. Dep't of Child Safety, 248 Ariz. 203, 207 ¶ 19 (App. 2020) (quoting Am. Cont'l Life Ins. Co. v. Rainer Constr. Co., 125 Ariz. 53, 55 (1980)). Father's argument can't reasonably be read to acquiesce in Counsel's use of substituted judgment given that he argued it improperly defeated K.M.’s chance to be heard.

¶32 Second, if Counsel had given notice to the court and the parties that she was exercising substituted judgment based on a determination as to K.M.’s capacity, as Juvenile Rule 306(a)(1)(C) requires, then Father would not have had to make an impromptu oral objection during closing arguments at the trial of Mother's request to terminate his constitutionally protected parental rights. See Ariz. R.P. Juv. Ct. 306(a)(1)(C). Counsel's eleventh-hour invocation of substituted judgment under Juvenile Rule 306(a)(1)(C) doesn't excuse Father from making any objection, but Counsel's failure to follow Juvenile Rule 306 makes Father's clear but imperfect framing understandable. It also makes Mother's argument to construe Father's argument strictly and hyper-literally as a waiver unreasonable, unfair, and incorrect. See Ariz. R.P. Juv. Ct. 101(b) (“Parties should use these rules, and courts should construe and enforce them, in a manner that ensures a simple and fair resolution of juvenile proceedings ․ protects individual rights, and preserves the public welfare.”).

¶33 We next explain why Father is right that the juvenile court violated K.M.’s right to due process when it terminated his parental rights. Mindful of the Legislature's mandate that we prioritize juvenile court appeals, A.R.S. § 8-235(C), and to try to help this case to a prompt conclusion, we explain why Father prevails whether he preserved his due process argument, see Paragraphs 34-58 below, or not, see Paragraphs 59-65 below.

III. The Termination Violated K.M.’s Rights to Due Process Because Counsel Did Not Follow the Procedures Mandated by Arizona Law for Using Substituted Judgment, Defeating K.M.’s Right of Participation in the Termination Proceeding.

A. Arizona Statutes and Rules Establish the Process Due Before Child's Counsel May Employ Substituted Judgment.

¶34 In Arizona, a child has an interest in the outcome of a proceeding to terminate a parent-child relationship, so the child must receive due process in that proceeding. See Matter of Cochise Cnty. Juv. Dependency Action Nos. SV89-00023 and DP89-00018, 164 Ariz. 413, 414 (App. 1990) (“The minor has the right to participate in a severance proceeding involving her.”); J.A.R. v. Superior Court, 179 Ariz. 267, 274 n.6 (App. 1994) (citing In re D., 547 P.2d 175 (Or. Ct. App. 1976)) (recognizing a child is a party to a termination proceeding, so that proceeding “cannot involve deprivation of his or her interest in the parental relationship without due process.”). We review de novo whether K.M. received due process. Savord, 235 Ariz. at 260 ¶ 16.

¶35 “Generally, due process requires an ‘opportunity to be heard at a meaningful time and in a meaningful manner.’ ” Tracy D. v. Dep't of Child Safety, 252 Ariz. 425, 433-34 ¶ 33 (App. 2021) (quoting Dep't of Child Safety v. Beene, 235 Ariz. 300, 305 ¶ 11 (App. 2021)). To ensure children have that meaningful opportunity in termination proceedings, Arizona law requires the juvenile court to appoint counsel to represent the child and advocate for her subjective goals in the litigation.¹ A.R.S. § 8-221(A) (“The court shall appoint an attorney for a child in ․ termination of parental rights proceedings.”); Ariz. R.P. Juv. Ct. 303 (“Children in ․ termination cases are entitled to a court-appointed attorney.”); Castro v. Hochuli, 236 Ariz. 587, 591 ¶ 8 (App. 2015) (first citing Yavapai Cnty. Juv. Action No. J- 8545, 140 Ariz. 10, 16 (1984); and then citing Ariz. R. Sup. Ct. 42, ER 1.2(a)) (“[W]hen a child is appointed counsel during termination proceedings, that child is entitled to be represented by counsel that will advocate for his subjective goals in the litigation.”).

¶36 Our supreme court enacted a procedural rule – Juvenile Rule 306 – that sets out the process the court must provide to a child, like K.M., for whom counsel is appointed. A child's court-appointed attorney “must maintain a normal attorney-client relationship with the child in accordance with the rules of professional conduct when the child is capable of directing the representation by expressing the child's objectives.” Ariz. R.P. Juv. Ct. 306(a)(1)(A) (emphases added). The attorney must “keep the child informed, in an age and developmentally appropriate manner, of the nature of each court proceeding.” Ariz. R.P. Juv. Ct. 306(b). The attorney must also meet with the child before a termination hearing. A.R.S. § 8-221(G); Ariz. R.P. Juv. Ct. 306(b), (d). After meeting with the represented child, the attorney must tell the court in writing about that meeting, including whether the attorney “had sufficient interaction with the child to adequately advocate on behalf of the child.” Ariz. Local R. Prac. Super. Ct. (Maricopa) 7.4.

¶37 While Juvenile Rule 306 allows a child's counsel to exercise substituted judgment for their client, counsel must first comply with the rule's many strictures before doing so. As an initial matter, “the child's attorney must determine whether the child has the capacity to make adequately considered decisions pursuant to E.R. 1.14.” Ariz. R.P. Juv. Ct. 306(a)(1)(B). To do so, the child's “attorney should consult the child and may consult other individuals and entities to determine the child's ability to direct the representation.” Ariz. R.P. Juv. Ct. 306(a)(1)(B). But even “when a child has diminished capacity, the child's attorney must make a good faith effort to determine the child's needs and wishes.” Id. In doing so, “[t]he attorney must, as far as reasonably possible, maintain a normal attorney-client relationship with the child.” Id. (emphasis added).

¶38 Counsel must evaluate her child-client's capacity in accordance with Ethical Rule 1.14. Ariz. R.P. Juv. Ct. 306(a)(1)(B). Ethical Rule 1.14 contains no bright-line rule for capacity. Rather, capacity is a fact-specific determination of whether a client, including a child-client, can make adequately considered decisions related to their representation. Ariz. R. Sup. Ct. 42, ER 1.14. Importantly, youth does not demonstrate incapacity. To the contrary, Comment 1 to Ethical Rule 1.14 tells us that “certainly [children aged] ten or twelve, are regarded as having opinions that are entitled to weight in legal proceedings concerning their custody.” Ariz. R. Sup. Ct. 42, ER 1.14, cmt. 1 to 2003 amendment. Thus, in addition to age, a child's counsel should consider, among other things, the client's ability to articulate a reasoned position, state of mind, and ability to appreciate the consequences of their decision-making. See generally Ariz. R. Sup. Ct. 42, ER 1.14, cmt. 6 to 2003 amendment.

¶39 If the child's attorney concludes under Ethical Rule 1.14 that her client has diminished capacity, so that counsel would substitute her judgment for that of her child-client, she has a duty to report that to the court. Ariz. R.P. Juv. Ct. 306(a)(1)(C). Crucially, she “must advise the court of the determination of capacity that requires substituted judgment and any subsequent change in that determination.” Id. Reporting that to the court, and thus all of the parties in the termination proceeding, provides the process that is due to the child-client in at least two ways.

¶40 First, it puts the court on notice that the proceeding will employ an attempted use of substituted judgment, so the juvenile court will know in managing the termination trial that the child will not testify to her own preferences. This allows the juvenile court to consider what evidence to receive, how to question witnesses, and to manage any anticipated evidentiary disputes between the adversaries in the termination trial as to child's preferences.

¶41 Second, it puts the parties on notice in this adversarial proceeding of the use of substituted judgment, so they may object to its use, or determine how to question witnesses or the counsel employing it, so as to protect their procedural and constitutional rights. In a proceeding such as this one, a parent whose constitutional rights to parent have not yet been terminated has a vital interest in protecting their child's rights as well as their own. As always, notice is fundamental to due process. Dept. of Child Safety v. Carel G., 260 Ariz. 263, 270 ¶ 26 (App. 2025).

B. The Procedure Employed Denied K.M. Due Process.

¶42 Father and Mother dispute whether Counsel complied with her obligations to K.M. under Juvenile Rule 306. Father argues that Counsel's decision not to tell K.M. of the termination proceeding prevented K.M. from sharing or discussing her objectives in it. Father argues Counsel chose to exercise substituted judgment on K.M.’s behalf solely because K.M. did not know Father was her biological parent, despite the record demonstrating K.M. was well-adjusted and old enough to direct her own representation. Father contends that by failing to discuss the termination hearing with K.M., Counsel did not fulfill her duty to maintain a normal attorney-client relationship with K.M. and instead improperly acted as a guardian ad litem.

¶43 Mother argues Counsel reasonably determined a traditional attorney-client relationship with K.M. was not feasible because K.M. didn't know Father was her biological father, which “prevent[ed] her from forming informed objectives concerning termination, permanency, or familial identity.” Mother argues Counsel's “[s]ubstituted judgment was necessary to protect the integrity of the representation while minimizing emotional harm to [K.M.]” Mother also argues K.M.’s preference, if learned and expressed, would have been irrelevant. She argues the juvenile court's ruling would have been the same even if K.M. had expressed a position opposing termination because the ruling “was not based on [K.M.’s] stated preference, but on overwhelming evidence of abandonment and [K.M.’s] best interests.”

¶44 We agree with Father. The record demonstrates Counsel did not comply with Juvenile Rule 306 in many particulars, and the juvenile court did not enforce the rule or sustain Father's objection to Counsel's belated assertion of substituted judgment, which is reason enough for us to reverse. But there are other, related reasons we must reverse. Counsel's substituted judgment, and the juvenile court's ratification of it, rested on conflating incapacity, which was not argued for or found on this record, with a notion that never letting K.M. know the truth about her biological father was better for her. This notion was enforced by Mother before the termination proceeding she filed, agreed to by Counsel (who again, didn't invoke lack of capacity to justify it), never vetted by K.M. herself, and approved by the juvenile court (which likewise didn't find K.M. lacked capacity).

1. Counsel Filed a Pretrial Statement That Did Not Indicate to the Court or Parties That K.M. Had Any Issues with Capacity or That Counsel Intended to Exercise Substituted Judgment on K.M.’s Behalf.

¶45 Counsel was obligated to maintain a traditional attorney-client relationship with K.M. Ariz. R.P. Juv. Ct. 306(a)(1)(A). Relatedly, Counsel was obligated to meet with K.M. to discuss the termination proceedings with K.M., to inform the court of the nature of that discussion, and of the reason for K.M.’s absence from the hearing. Ariz. R.P. Juv. Ct. 306(b), (d); Ariz. Local R. Prac. Super. Ct. (Maricopa) 7.4.

¶46 Counsel filed a pretrial statement with the juvenile court that failed to suggest K.M. lacked the capacity to direct her own representation at the upcoming termination trial. The statement asserted that K.M. agreed with Mother that Father abandoned K.M. and that termination was in K.M.’s best interests. Given Counsel's duty to “keep [K.M.] informed, in an age and developmentally appropriate manner, of the nature of” the termination trial, Ariz. R.P. Juv. Ct. 306(b), and to “have meaningful in-person communication with the child before every substantive hearing,” the pretrial statement could only be fairly read as expressing views obtained after conferring with K.M.

¶47 If Counsel had concluded under Ethical Rule 1.14 that K.M. had diminished capacity, so Counsel would substitute her judgment for that of K.M., she had to report that to the court. Ariz. R.P. Juv. Ct. 306(a)(1)(C) (mandating that counsel “must advise the court of the determination of capacity that requires substituted judgment and any subsequent change in that determination.”). Counsel made no such report. Counsel thus represented to the court that she had not yet made any such determination as to K.M.’s capacity. That reinforced the pretrial statement's false impression that K.M.’s actual views were in play at the trial, despite the fact that they were never sought to spare her emotional upset.

¶48 Whether Counsel had (1) met with K.M., not discussed the termination trial, and reported views K.M. never actually stated, or (2) not yet met with K.M. as would be required to report her preferences, Counsel's communications with and about K.M. did not accord with Juvenile Rule 306. They did not provide notice before the hearing to anyone of, nor an opportunity to be heard at, a termination trial in which substituted judgment was at issue. This lack of notice, unless remedied by the juvenile court before decision, made termination in reliance on it error.

2. Counsel Did Not Comply with Juvenile Rule 306 in Her Appearance at the Start of the Trial.

¶49 At the beginning of trial, Counsel noted she was appearing on K.M.’s behalf. Again, Counsel did not “advise the court of [her] determination of capacity that requires substituted judgment.” See Ariz. R.P. Juv. Ct. 306(a)(1)(C). Counsel said nothing to modify the positions she took in the pretrial statement. These omissions must be judged in light of the fact that Counsel never made K.M. aware of the termination proceedings at all. By appearing at the hearing without either (1) telling her client about the termination hearing, or (2) telling the juvenile court or Father that Counsel was going to exercise substituted judgment over K.M., Counsel failed to comply with Juvenile Rule 306. She either failed to maintain a normal attorney-client relationship with K.M., or failed to trigger scrutiny of, or objection to, her dealings with K.M., as could have occurred if she had complied with Juvenile Rule 306, or both. See Ariz. R.P. Juv. Ct. 306; see also Ariz. Local Prac. Super. Ct. (Maricopa) 7.4. These failures deprived K.M. of her right to participate meaningfully in the termination proceedings. Tracy D., 252 Ariz. at 433-34 ¶ 33.

3. The Juvenile Court's Ratification of Counsel's Belated Exercise of Substituted Judgment – Revealing its Use for the First Time in Closing Argument – Was Error.

¶50 Counsel invoked substituted judgment for the first and only time during her closing argument. We have already explained that she did so belatedly and without the notice to the court that Juvenile Rule 306 requires, which defeated K.M.’s right to due process. See above, Paragraphs 42-49. But permitting her to do so was also error because: (a) Counsel in her closing argument did not advise the juvenile court of any determination as to capacity, as would justify exercising substituted judgment; and (b) the juvenile court did not find K.M. had limited capacity as would support the exercise of substituted judgment, and relied instead on other bases for its best interests decision.

a. Counsel Did Not Advise the Juvenile Court That She Had Made Any Determination as to K.M.’s Capacity.

¶51 Counsel doesn't have an unfettered right to substitute her judgment for that of her child-client. Juvenile Rule 306 creates strictures to govern this attorney-client relationship, the point of which is that the child be “represented by counsel that will advocate for [her] subjective goals in the litigation.” J.W. v. Dep't of Child Safety, 252 Ariz. 184, 189 ¶ 16 (App. 2021) (quoting Castro, 236 Ariz. at 591 ¶ 8). Counsel may only substitute her judgment for that of her client where she advises the court of a specific determination as to her client's capacity.

¶52 That didn't happen here. During closing arguments, Counsel for the first time informed the court: “I actually have to use substituted judgment, believe it or not, because [K.M. is] ten and she has no idea that her stepdad is not her dad. She identifies him as dad. She thinks he's dad. She calls him dad.” This was Counsel's only explanation as to why K.M. could not direct a normal attorney-client relationship to express her subjective goals to the court. We are not aware of authority indicating that the mere fact a client is not aware of a fact establishes incapacity under Ethical Rule 1.14 to make decisions about that fact, were it known to the client. Mother furnishes none, and we see no reasoned support for such a view.

¶53 The juvenile court asked Counsel why K.M. believes she has a different last name from the rest of her family. Counsel's answer in no way suggested diminished capacity under Ethical Rule 1.14. Counsel stated: “She just knows it's different. She thinks it's unique and fun. She doesn't really have like a – like an idea or like she doesn't – it doesn't like – she just thinks it's unique. I know. Yeah, she's super cute. So, yeah, I – I – I think it's in her best interest.” None of this represents an attempt to report a diminished capacity. And while we sometimes infer that a court made findings necessary to its ruling, we don't extend that solicitude to lawyers under a duty to report findings to the court. Counsel failed to do what was needed to invoke Juvenile Rule 306’s machinery that might permit her to employ substituted judgment. It was an error of law for the juvenile court to permit its invocation on this record. See Ariz. R.P. Juv. Ct. 306(a)(1)(C).

¶54 Allowing Counsel to opine about K.M.’s best interests without fulfilling Juvenile Rule 306’s requirements for substituted judgment was also error because it conflated the roles of counsel and guardian ad litem. See J.W., 252 Ariz. at 189-90 ¶¶ 15-19. There, counsel opined about a child-client's best interests as if counsel were a guardian ad litem when they were not, and in a manner potentially inconsistent with the actual wishes of the child-client. See id. As Counsel's colloquy with the juvenile court in this case illustrates, the same happened here. The counsel and guardian ad litem roles are highly distinct, and it is important for those performing them – and the courts supervising those professionals – to observe those distinctions with care. Compare Ariz. R.P. Juv. Ct. 305, with Ariz. R.P. Juv. Ct. 306.

b. The Juvenile Court Did Not Find Any Diminished Capacity That Would Support the Exercise of Substituted Judgment.

¶55 The juvenile court's termination order did not make findings of diminished capacity. As such, there is no record basis for Counsel's exercise of substituted judgment. Given the lack of any findings of fact in favor of its exercise to which we would ordinarily defer, we note that the record is uncontroverted that K.M. is well-adjusted and a good student in school, earning A's and B's. On that record, we see no basis to depart from the guidance in Comment 1 to Ethical Rule 1.14 that provides that a ten-year-old ordinarily has views bearing on custody that courts would wish to credit.

¶56 Counsel's stated reasons for exercising substituted judgment on K.M.’s behalf – that K.M. was only ten years old and did not know Father was her biological parent – fail. Counsel was required to explore K.M.’s capacity and to share the details of that capacity with the juvenile court. Absent a determination of diminished capacity, Ethical Rule 1.4(b) required Counsel to make K.M. aware of Father, so K.M. could express her views about Mother's efforts to terminate his parental rights. Ariz. R. Sup. Ct. 42, ER 1.4(b) (“A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”). Here, where Counsel only gave her reasons for exercising substituted judgment at the close of trial and never earlier communicated with the court regarding K.M.’s representation, Counsel failed to maintain a normal attorney-client relationship with K.M. or otherwise comply with her obligations to K.M. by advising the court regarding K.M.’s capacity to maintain such a relationship. K.M. therefore was deprived of a meaningful opportunity to participate in the termination proceeding. Tracy D., 252 Ariz. at 433-34 ¶ 33.

4. Mother's Argument That K.M.’s Preferences Are Irrelevant Because the Juvenile Court's Ruling Did Not Take Account of Them Incorrectly Ignores the Juvenile Court's Framing of its Decision.

¶57 We also reject Mother's argument that even if K.M. learned of Father and testified against terminating his parental rights, none of that could have changed the juvenile court's decision. One need look no further than the juvenile court's termination order to see why. The juvenile court explained that due to K.M.’s “age and maturity” it gave “her opinion some weight.” She was ten then, and she is eleven now. Her opinion matters, and the juvenile court was right to recognize that. The juvenile court, however, made an error that illustrates why Mother's argument on appeal is also incorrect. The juvenile court adopted Mother's testimony as K.M.’s actual wishes – and then gave that testimony weight. The court wrote: “It was expressed through Mother's testimony that [K.M.] fears what would happen if Mother were to die for some reason and she could be forced to be uprooted from her known family and home and placed with her Father whom she does not know.” The juvenile court's statement was error because no one told K.M. Father even exists, so it can't be true that she subjectively fears being sent to live with him if Mother dies. But the court's incorrect statement also shows why Mother's appellate argument is wrong: the juvenile court is properly interested in what K.M. actually thinks. Remand may afford the juvenile court a chance to take account of her actual wishes, instead of the substituted views or hypothecated wishes of another. The bottom line is the termination order shows K.M.’s views could possibly tip the scales the other way.

5. The Termination Proceeding Was Fundamentally Unfair.

¶58 “The extension of constitutional rights in the juvenile court setting is based on the concept of fundamental fairness or due process.” Matter of Maricopa Cnty., Juvenile No. J-82545, 126 Ariz. 153, 156 (App. 1980) (citing In re Gault, 387 U.S. 1 (1967) and In re Winship, 397 U.S. 358 (1970)). Mother argues that, “even assuming arguendo some technical deficiency,” Father cannot demonstrate prejudice. Father says he and K.M. were prejudiced because the trial was fundamentally unfair. We agree with Father. The right to meaningfully participate in a termination proceeding is fundamental and, as explained in Paragraphs 50-57, above, K.M. was denied that right. See Matter of Maricopa Cnty., Juvenile No. J-82545, 126 Ariz. at 156. And though Mother is correct that Father was represented throughout the proceeding and was allowed to present evidence and argue against termination, he was only allowed to do so in the context of a hearing in which K.M.’s wishes were never learned or shared. Father, like the juvenile court, only discovered at the very end of trial that K.M. was not meaningfully participating in the proceedings. The hearing was fundamentally unfair.

IV. Fundamental Error Requires Reversal.

¶59 We are supposed to resolve juvenile appeals quickly. We know this because the Legislature has instructed us that “[t]he court of appeals shall give [juvenile appeals] precedence over all other actions except extraordinary writs or special actions.” A.R.S. § 8-235(C). Were we not to reach the issue of whether fundamental error occurred in this case, there would be a chance this case would take longer to resolve through further review. We thus decide whether fundamental error occurred here, because: (1) it provides an independent basis upon which to resolve this matter; and (2) no appeal arguing that Father failed to preserve the due process issue would require remand to us for further consideration of this case, thus further delaying justice for K.M. and all parties.

¶60 Even if Mother is correct that fundamental error review applies, there was fundamental error here. “Under fundamental error review, [Father] ‘bears the burden to establish that (1) error exists, (2) the error is fundamental, and (3) the error caused [him] prejudice.’ ” Brenda D. v. Dep't of Child Safety, 243 Ariz. 437, 447-48 ¶ 38 (2018) (quoting State v. Bearup, 221 Ariz. 163, 168 ¶ 21 (2009)).

¶61 First, we have already explained the legal errors in the termination order. See Paragraphs 34-58, above. Because K.M. was not told of the nature of her parentage or the fact of the termination proceeding, her desires were never represented to the juvenile court. Counsel attempted to employ substituted judgment without complying with Juvenile Rule 306’s requisites before using it. The only record evidence is that K.M. is a well-adjusted, scholastically successful ten-year-old. Her age doesn't demonstrate any incapacity; Comment 1 to Ethical Rule 1.14 suggests that her input was necessary as a matter of law; and the arguments not to give her input amount to imposing choices on her by fiat.

¶62 Second, the error was fundamental, because it “goes to the very foundation of the case.” Id. at 448 ¶ 38 (internal quotation marks omitted) (quoting Monica C. v. Ariz. Dep't of Econ. Sec., 211 Ariz. 89, 94 ¶ 24 (App. 2005)). Here, the error went to the very foundation of the case because, after the court determined Father abandoned K.M., the inquiry shifted to the sole question of K.M.’s best interests. See Jessie D. v. Dep't of Child Safety, 251 Ariz. 574, 583 ¶ 27 (2021) (explaining that after statutory ground for termination is found the focus shifts to the interests of the child, and the child's interests become the court's foremost concern). The court claimed it gave K.M.’s “opinion some weight,” but it didn't. Because she was kept in the dark about Father by Counsel (and the court's acceptance of Counsel's misuse of substituted judgment), K.M. gave no opinion at all. The court repeated its claim that it took her wishes into account when it adopted as K.M.’s stated wish a factual impossibility suggested by Mother's testimony: “It was expressed through Mother's testimony that [K.M.] fears what would happen if Mother were to die for some reason and she could be forced to be uprooted from her known family and home and placed with her Father whom she does not know.” The fact that the juvenile court claimed to express K.M.’s wishes, and even presented Mother's testimony as K.M.’s, underscores that the court needed ten-year-old K.M.’s input here, and recognized that it did. Put otherwise, her (absent) input was foundational to the decision. The superior court's error was thus foundational. Brenda D., 243 Ariz. at 447-48 ¶ 38.

¶63 Third, the error was prejudicial. Father need only “show that a reasonable [fact-finder] could have reached a different result.” Id. (quoting State v. Dickinson, 233 Ariz. 527, 531 ¶ 13 (App. 2013)). The superior court's invocation of K.M.’s supposed wishes in its brief discussion of best interests suggests that if K.M. full-throatedly opposed termination, a reasonable fact-finder could determine the matter otherwise. Mother's brief suggests the juvenile court reached the right conclusion, and that its conclusion is well-supported. That argument misunderstands or ignores the legal standard, which is not whether the juvenile court was right, but whether no reasonable fact-finder could decide not to terminate Father's parental rights. Given the juvenile court's express reliance on what it described as K.M.’s own views on the subject, Mother's argument that her own daughter's actual views (if learned) would be irrelevant to the court's redetermination of her own best interests is not well-taken.

¶64 Additionally, the denial of the right to counsel is fundamental, structural error. State v. Garza, 216 Ariz. 56, 63 ¶ 20 n.6 (2007). K.M. has a right to counsel in this proceeding. A.R.S. § 8-221(A). Given that Counsel didn't make K.M. aware of the proceeding at all, and erroneously so, this proceeding denied K.M. her right to counsel, thus creating fundamental, structural error.

¶65 For these reasons, Father has demonstrated fundamental error. Thus, even if one assumes Father hasn't preserved his due process argument, we must reverse.

CONCLUSION

¶66 The procedure in this case silenced K.M. Juvenile Rule 306, our state and federal constitutions, and the record of this case do not permit that result. Accordingly, we vacate the best interests ruling in the juvenile court's termination order and remand this case to the juvenile court to determine whether K.M. can direct her own legal representation, and whether under Ethical Rule 1.14 counsel may exercise substituted judgment on K.M.’s behalf. Because Counsel would have conflicts of interest on remand, we direct the juvenile court to appoint a different attorney in her place.

FOOTNOTES

1.   The Arizona Legislature amended A.R.S. § 8-221 in 2026, but that amendment was not made retroactive, so we refer to the version of the statute in effect at the time of the subject termination proceeding.

JACOBS, Judge: