Juvenile Restitution in Arizona
“[T]he court may order one or both of the juvenile’s custodial parent to make restitution to the victim of the offense for which the juvenile was adjudicated delinquent.” Arizona Rev. Stat. Ã?§ 8-344(c). Ordering the juvenile defendant’s parents to pay the restitution is well within the court’s discretion, but is not automatic. Accordingly, I feel it is important that victims know about this section, and also know to ask for it affirmatively. This is an important step in ensuring that victims can collect the restitution due them. Juveniles are often judgment proof, whereas parents often own real or personal property that can be the subject of restitution liens. Furthermore, according to the statute, the court “shall not consider the ability of the juvenile’s parents to pay restitution before making a restitution order.” Id.
How can restitution orders be enforced?
As you know, A.R.S. Ã?§ 13-810 deals with the consequences of nonpayment of restitution. Accordingly, if the defendant defaults on the payment there are a couple of options. “The court . . . on petition of any person entitled to restitution pursuant to a court order . . . shall require the defendant to show cause.” Ariz. Rev. Stat. Ã?§ 13-810(a). If the court finds that the defendant willfully chose not to pay, the court shall find contempt and may 1) order the defendant incarcerated until the restitution is paid, 2) revoke the defendant’s probation or parole or 3) enter an order for garnishment in accordance with A.R.S. Ã?§ 13-812. Additional support for this approach is found in rule 26.12(c)(4) of the Rules of Criminal Procedure. For juvenile defendants, this is usually the end of the road, as few juveniles earn enough money to justify a garnishment order. That is one reason why I feel it important to have the restitution assigned to the parents of the juvenile.
Enforcing orders assigned to parents and on juveniles who are aging out.
A. Pursuing a show cause hearing leading to garnishment.
If the restitution is assigned to the parent of the juvenile in accordance with A.R.S. �§ 8-344(c), then the same rules above come into play. It can be hoped that the parents do earn enough to justify an order of garnishment. For defendants who have aged out, the solution is similar. The juvenile court is to retain jurisdiction for 6 months after the defendant turns eighteen. This is for the purpose of entering judgment in favor of each person who is entitled to restitution for any unpaid amounts. This judgment can be enforced and renewed as any civil judgment. Ariz. Rev. Stat. �§ 8-344(d)(e). Alternatively, a victim can pursue a restitution lien
B. Filing a restitution lien.
“[A]ny person entitled to restitution pursuant to a court order may file in accordance with this section a restitution lien.” Ariz. Rev. Stat. Ã?§ 13-806. A restitution lien is available immediately to any person who is owed restitution pursuant to court order. It is not necessary to have a “show cause” hearing or to pursue a garnishment order. If the defendant (or his parent in cases where the restitution is assigned to the parents) owns real or personal property, the victim is entitled to a lien on it. The requirements for the lien are fairly simple and require that they be signed either by the attorney representing the state in the criminal action or by a magistrate. Additionally, the lien must set forth the following information; 1) the name and date of birth of the defendant, 2) the address or place of business, 3) the criminal proceeding under which the lien is filed, including the court, the title of the action and the file number, 4) the name and address of the person entitled to the restitution, 5) a statement that the lien is being filed according to this section (A.R.S. Ã?§ 13-806), 6) the amount of restitution ordered, and 7) a statement that the amount of restitution owed will change and that the clerk of the court shall maintain a record of the outstanding balance.
To file a lien against real property (real estate), the lien must be filed with the county recorder of the county in which the assets are located. To file a lien against a motor vehicle, the lien must be filed with the department of transportation motor vehicle division. To file a lien against any other personal property, the lien must be filed with the secretary of state. There is no filing fee for filing this type of lien.
Conclusion
There are several options for victims to enforce the restitution judgments against juveniles. The best one, in my opinion, is to have the restitution order entered against the parents, thereby holding someone who is not judgment proof responsible for making the victim whole. If the restitution has already been entered against the juvenile, the “show cause” hearing and garnishment may work. Failing that, an order entered against the defendant when he turns eighteen may be the only recourse.
