Jessica E. v. Dcs ( 2015 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
JESSICA E., Appellant,
v.
DEPARTMENT OF CHILD SAFETY,
X.B., L.B., N.B., Appellees.
No. 1 CA-JV 14-0261
FILED 7-7-2015
Appeal from the Superior Court in Maricopa County
No. JD509874
The Honorable Brian K. Ishikawa, Judge, (Retired)
AFFIRMED
COUNSEL
David W. Bell Attorney at Law, Higley
By David W. Bell
Counsel for Appellant
Arizona Attorney General’s Office, Mesa
By Eric Knobloch
Counsel for Appellee Department of Child Safety
JESSICA E. v. DCS, et al.
Decision of the Court
MEMORANDUM DECISION
Judge Patricia A. Orozco delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Michael J. Brown joined.
O R O Z C O, Judge:
¶1 Jessica E. (Mother) appeals from the termination of her
parental rights to X.B., L.B., and N.B (collectively the Children). Mother
contends the juvenile court denied her due process by finding no good
cause existed for her failure to appear at a pretrial conference and
challenges the juvenile court’s termination of her parental rights. For the
following reasons, we affirm the denial of the motion to set aside the
termination order and the termination of Mother’s parental rights.
FACTS AND PROCEDURAL BACKGROUND
¶2 X.B. and L.B. were taken into the Department of Child Safety’s
(DCS) care in January 2012 after response to an emergency call revealed
then-eight-week-old L.B. was severely malnourished and suffering from
several acute and untreated health issues. X.B. and L.B. were found
dependent as to Mother approximately two months later, and a family
reunification plan was implemented. N.B. was born approximately
seventeen months after the other children were taken into care by DCS, and
was taken into DCS’s custody immediately. N.B. was then found
dependent as to Mother.
¶3 Approximately six months after N.B.’s dependency
determination, at a report and review hearing, the juvenile court changed
the case plan to severance and adoption. At that hearing, the court gave
Mother a Form 3, which provided in relevant part the date and time of the
next hearing and included the admonishment that,
[i]f you fail to attend the Initial Termination Hearing,
Termination Pre-trial Conference, Status Conference, or
Termination Adjudication Hearing without good cause, the
Court may determine that you have waived your legal rights
and admitted the grounds alleged in the motion/petition for
termination. The Court may go forward with the Termination
Adjudication Hearing in your absence and may terminate
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JESSICA E. v. DCS, et al.
Decision of the Court
your parental rights to your child based on the record and
evidence presented.
Ariz. R.P. Juv. Ct., Form 3.
¶4 DCS then filed a termination motion for all three children. For
X.B. and L.B., DCS alleged both nine- and fifteen-months’ time in out-of-
home placement pursuant to Arizona Revised Statutes (A.R.S.) section 8-
533.B.8(a) and (c). For L.B. and N.B., both of whom were under three years
old, DCS also alleged six-months’ time in out-of-home placement pursuant
to A.R.S. § 8-533.B.8(b).
¶5 After the termination motion was filed, Mother appeared at
several pretrial proceedings. After a pretrial conference and publication
hearing in May 2014, the juvenile court scheduled a second pretrial
conference for July 2014. Mother did not appear at the July 2014 pretrial
conference and Mother’s counsel confirmed that Mother knew about the
hearing. The juvenile court found that Mother had received proper notice
and had failed to appear without good cause shown. The juvenile court
allowed DCS to proceed with its termination motion, and DCS presented
testimony and evidence supporting termination. The juvenile court found
that DCS had proved each alleged termination ground by clear and
convincing evidence and that termination of Mother’s parental rights was
in the Children’s best interests.
¶6 Thereafter, Mother filed a motion to set aside the termination
order, asserting that she was given a Form 3 by the juvenile court at the May
2014 pretrial conference that stated the next hearing would occur on July
25, 2014, not July 21, 2014, the date the hearing was held. The juvenile court
heard argument on the motion and ruled that “[a]s established at the
hearing . . . mother’s counsel and mother, not the Court, filled out the Form
3” that Mother received at the May 2014 pretrial conference. Accordingly,
the juvenile court affirmed that no good cause existed for Mother’s failure
to appear, and denied her motion to set aside the termination order. Mother
timely appealed and we have jurisdiction pursuant to Article 6, Section 9,
of the Arizona Constitution, A.R.S §§ 8-235.A, 12-120.21.A.1, and -2101.A
(West 2015),1 and Arizona Rule of Procedure for the Juvenile Court 103(A).
1 We cite the current version of applicable statutes when no revisions
material to this decision have since occurred.
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JESSICA E. v. DCS, et al.
Decision of the Court
DISCUSSION
¶7 Mother contends she was not afforded due process when the
juvenile court found that she failed to appear without good cause at the July
2014 pretrial conference and that the juvenile court erred by not setting
aside the termination order. We review the juvenile court’s denial of the
motion to set aside the termination order for an abuse of discretion. See
Christy A. v. Ariz. Dep’t of Econ. Sec., 217 Ariz. 299, 305, ¶ 19 (App. 2007).
Whether the juvenile court acted within its authority under Arizona law to
proceed in Mother’s absence is a legal question we review de novo. See
Adrian E. v. Ariz. Dep’t of Econ. Sec., 215 Ariz. 96, 99, ¶¶ 8-9 (App. 2007).
¶8 Arizona Rule of Procedure for Juvenile Court 64.C provides
that a parent contesting a termination motion must receive a “notice of
hearing” informing the parent that a failure to appear may result in
proceedings going forward, which “may result in the termination of
parental rights based upon the record and evidence presented.” Rule
65.C.6.c additionally states that, upon finding a lack of good cause shown
and that notice and service of the warning was proper, a juvenile court
“may proceed with the adjudication of termination based upon the record
and evidence presented[.]” This court has recognized that failing to appear
is not by itself sufficient to waive due process rights if a party can show a
lack of proper notice. Manuel M. v. Ariz. Dep’t of Econ. Sec., 218 Ariz. 205,
211, ¶ 20 (App. 2008). But when notice is proper, this court has also held
that the relevant Rules provide sufficient authority for a juvenile court to
proceed with termination of parental rights if a parent fails to appear
without good cause shown. Adrian E., 215 Ariz. at 100, ¶ 13.
¶9 Here, the record shows that Mother was present at the May
2014 hearing when the July 21, 2014 pretrial conference was scheduled.
Mother does not argue that the juvenile court or DCS failed to provide
proper service or notice to her for the July 21, 2014 pretrial conference, nor
does she contest that the July hearing was held as scheduled at the May
2014 hearing where she was present. Mother received a Form 3 that
complied with the Rules in warning her about the possible consequences of
failing to appear. See Ariz. R.P. Juv. Ct., Form 3 (Notice to Parent in
Termination Action). There is no dispute with the juvenile court’s finding
that Mother recorded the wrong date on the provided form. Thus,
consistent with the Rules and Arizona case law, Mother’s failure to appear
provided sufficient cause for the juvenile court to proceed with the
termination hearing.
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JESSICA E. v. DCS, et al.
Decision of the Court
¶10 Mother contends that her mistaken transcription amounts to
good cause shown, and the juvenile court erred by not recognizing it as
such. However, the appellate record does not contain transcripts of either
the May 2014 hearing or the hearing where the motion to set aside the
termination order was argued. Accordingly, we presume the record
supports the juvenile court’s rulings. See Kohler v. Kohler, 211 Ariz. 106, 108
n.1, ¶ 8 (App. 2005).
¶11 Although Mother waived her rights by failing to appear
without good cause shown and was deemed to have admitted the grounds
alleged in the motion for termination, the juvenile court was still required
to assess the record and evidence presented to determine whether the legal
grounds for termination were established. See Manuel M., 218 Ariz. at 214,
¶ 28. The record supports the juvenile court’s findings, and Mother does
not argue to the contrary.
¶12 The grounds for termination were established by the reports
prepared by DCS and several health professionals who treated the Children
and from DCS case worker testimony. In particular, for X.B. and L.B., the
record reflects that the Children were in out-of-home placement for more
than fifteen months and the reports and testimony sufficiently established
a substantial likelihood that Mother would not be capable of exercising
proper and effective parental care and control in the near future. See A.R.S.
§ 8-533.B.8(c). The record additionally reflects that N.B., who is under three
years of age, was in an out-of-home placement for more than six months
and the reports and testimony sufficiently established that Mother had
neglected or willfully refused to remedy the circumstances causing the out-
of-home placement. See A.R.S. § 8-533.B.8(b).
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JESSICA E. v. DCS, et al.
Decision of the Court
¶13 Finally, the juvenile court did not err in finding that
termination would be in the Children’s best interests. The record reflects
that the Children would benefit by receiving permanency and stability from
termination. See James S. v. Ariz. Dep’t of Econ. Sec., 193 Ariz. 351, 356, ¶ 18
(App. 1998) (noting that finding termination is in a child’s best interests
requires “either that the child will benefit from the termination of the
relationship or that the child would be harmed by continuation of the
relationship.”).
CONCLUSION
¶14 For the above stated reasons, we affirm the denial to set aside
the termination order and the termination of Mother’s parental rights.
:ama
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