Lindsay A., Andrew W. v. Dcs ( 2017 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
LINDSAY A., ANDREW W., Appellants,
v.
DEPARTMENT OF CHILD SAFETY, X.F., L.A., A.A., L.W., A.W., S.W.,
Appellees.
No. 1 CA-JV 17-0122
FILED 11-28-2017
Appeal from the Superior Court in Maricopa County
No. JD529176
The Honorable Arthur T. Anderson, Judge
REVERSED AND REMANDED
COUNSEL
The Stavris Law Firm, PLLC, Scottsdale
By Christopher Stavris
Counsel for Appellant Lindsay A.
John L. Popilek, PC, Scottsdale
By John L. Popilek
Counsel for Appellant Andrew W.
Arizona Attorney General’s Office, Tucson
By Cathleen E. Fuller
Counsel for Appellee Department of Child Safety
LINDSAY A., ANDREW W. v. DCS, et al.
Decision of the Court
MEMORANDUM DECISION
Judge Peter B. Swann delivered the decision of the court, in which Presiding
Judge James P. Beene and Judge Kent E. Cattani joined.
S W A N N, Judge:
¶1 This is an appeal from an order terminating parental rights
after the juvenile court found waiver based on failure to appear. The
juvenile court deemed the parents to have waived legal rights and admitted
the termination motions’ allegations when they, without authorization,
appeared at a pretrial conference by telephone instead of in person.
Accordingly, the parents’ ability to participate in the termination
adjudication hearing was limited. We reverse the termination order and
remand for a new termination adjudication hearing. On this record,
application of waiver constituted abuse of discretion. Even if the parents’
failure to appear in person was entirely unjustified, their telephonic rather
than physical presence at the purely organizational hearing posed no threat
to the prompt resolution of the case.
FACTS AND PROCEDURAL HISTORY
¶2 Lindsay A. (“Mother”) and Andrew W. (“Father”) are the
biological parents of minor children L.W., A.W., and S.W. In addition,
Mother is the biological parent of minor children X.F., L.A., and A.A. 1 In
2015 and 2016, on petitions by the Department of Child Safety (“DCS”), the
juvenile court found the children dependent as to their parents. Then, in
2016 and 2017, DCS moved to terminate Mother and Father’s parental
rights.
¶3 The court repeatedly informed Mother and Father that they
were required to attend all termination hearings, and that their failure to do
so could result in the court finding waiver and terminating their rights
based on the record and evidence presented. The court found good cause
for the parents’ telephonic participation at an initial hearing and pretrial
conference in January 2017. But when Mother and Father again attempted
to participate telephonically at the next hearing—a pretrial conference—the
1 X.F., L.A., and A.A.’s fathers, whose parental rights also were
severed, are not parties to this appeal.
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LINDSAY A., ANDREW W. v. DCS, et al.
Decision of the Court
court found no good cause for their physical absence, found that they had
waived their appearance, and granted DCS’s request to convert the pretrial
conference into a termination adjudication hearing.
¶4 Mother and Father listened as DCS presented evidence,
including the testimony of the children’s case worker. Mother and Father’s
attorneys were permitted to cross-examine the case worker, but counsel
proffered no evidence on behalf of their clients. The court terminated
Mother and Father’s parental rights at the conclusion of the hearing.
Mother and Father timely appeal.
DISCUSSION
¶5 The government may not interfere with a parent’s
fundamental right to raise his or her child unless a court, affording the
parent due process, finds that he or she is unable to parent the child for a
reason defined by statute. Brenda D. v. Dep’t of Child Safety, 242 Ariz. 150,
154, ¶ 8 (App. 2017) (review granted Oct. 17, 2017). Parental rights may not
be severed absent “fundamentally fair procedures.” Kent K. v. Bobby M.,
210 Ariz. 279, 284, ¶ 24 (2005) (citation omitted).
¶6 When a parent fails without good cause to appear at a pretrial
conference in motion-initiated termination proceedings, the juvenile court
has discretion to find that the parent has waived legal rights and admitted
the motion’s allegations. Marianne N. v. Dep’t of Child Safety,
CV-16-0259-PR, 2017 WL 4228661, at *1, ¶¶ 1–2 (Ariz. Sept. 25, 2017)
(holding that Ariz. R.P. Juv. Ct. (“Rule”) 64(C) and A.R.S. § 8-863(C) are
harmonious and that rule’s application to pretrial proceedings does not
violate separation of powers); see also id. at *3, ¶ 16 (confirming that Rule
64(C) is not merely a notice provision). Such a finding does not relieve the
movant of its burden of proof, but it does permit the court to proceed
immediately to the evidentiary phase of the proceedings—the termination
adjudication hearing—and it limits the parent’s ability to participate in that
hearing. See id. at *4, 6, ¶¶ 22, 25; Brenda D., 242 Ariz. at 157, ¶ 25; Manuel
M. v. Ariz. Dep’t of Econ. Sec., 218 Ariz. 205, 213–15, ¶¶ 28–32 (App. 2008);
Christy A. v. Ariz. Dep’t of Econ. Sec., 217 Ariz. 299, 306, ¶ 24 (App. 2007).
The waiver rule allows the court to incentivize parents’ attendance and
avoid delayed resolution of a child’s status. Marianne N., 2017 WL 4228661,
at *6, ¶ 25.
¶7 The juvenile court “retains full discretion to assess ‘what
constitutes good cause for failure to appear,’ and to apply that discretion at
the severance hearing as it deems proper.” Brenda D., 242 Ariz. at 156, ¶ 18
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LINDSAY A., ANDREW W. v. DCS, et al.
Decision of the Court
(citation omitted). But waiver must be applied in view of the purpose it
serves and the due process right it curtails. As illustrated by our recent
decision in Brenda D. (on which our supreme court recently granted
review), overly rigid application of waiver constitutes abuse of discretion.
In Brenda D., the mother failed to appear at the time set for the termination
adjudication hearing. Id. at 153–54, ¶ 4. Finding no good cause for the
mother’s absence, the court found waiver and conducted the hearing
without her. Id. Approximately thirty minutes later, before the close of
DCS’s case for termination, the mother arrived and asked to testify. Id. at
154, ¶ 6. The court denied the mother’s request and terminated her parental
rights. Id. at ¶¶ 6–7. We reversed, holding that “a parent has not ‘failed to
appear’ [for purposes of Rule 66(D)(2), which authorizes waiver for failure
to appear at a termination adjudication hearing] simply because he or she
is tardy without good cause.” Id. at 153, ¶ 1. We further held: “[S]hould a
parent appear before the close of the hearing, such parent’s due process
rights cannot be violated by restricting the parent’s participation. . . . [O]nly
if a parent has failed to appear by the time both parties have fully presented
their case, may the court treat the parent’s absence as a waiver of the
parent’s legal rights and deem the parent to have admitted the well-pled
factual allegations of the petition.” Id. at 156, ¶ 18.
¶8 Here, as in Brenda D., Mother and Father’s participation in the
termination proceedings was imperfect—they attempted to appear
telephonically without permission. See Rule 42 (providing that “court may
permit telephonic testimony or argument or video conferencing in any . . .
termination of parental rights hearing[ ]” on the court’s motion or on
written motion by a party); see also Willie G. v. Ariz. Dep’t of Econ. Sec.,
211 Ariz. 231, 234, ¶ 14 (App. 2005) (recognizing court’s discretion under
Rule 42). But on this record the defect in their manner of participation, even
if completely unjustified, posed no threat to the matter’s timely progression
toward resolution on the merits. The hearing was set as a pretrial
conference. The record reveals no suggestion that the parents’ telephonic
participation would have interfered with the purposes of that conference in
any significant way. The hearing, as scheduled, did not require the court
to hear testimony or assess the credibility of any party or witness—the
hearing was to be a case-management proceeding, not an evidentiary one.
See Rule 66(A) (providing that burden of proof is to be satisfied at a
termination adjudication hearing); cf. Willie G., 211 Ariz. at 234–35,
¶¶ 13, 17 (holding that juvenile court did not abuse its discretion by
refusing to permit parents to appear telephonically at contested
dependency hearing). To the extent that Mother and Father’s personal
participation in the hearing might have been necessary, the fact that such
participation would have been telephonic would not have prevented the
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LINDSAY A., ANDREW W. v. DCS, et al.
Decision of the Court
parties and the court from satisfying the hearing’s purely organizational
goals. Cf. State v. Moore, 203 Ariz. 515, 518, ¶ 11 (App. 2002) (“Telephonic
testimony thwarts the purposes of the Confrontation Clause in that the jury
cannot ‘observe the demeanor, nervousness, expressions, and other body
language of the witness.’”) (emphasis added and citation omitted); State v.
Dann, 205 Ariz. 557, 572, ¶ 54 (2003) (holding that criminal defendant may
waive right to be present at all phases of trial). On this record, the juvenile
court abused its discretion by finding that Mother and Father’s failure to
appear in person justified a forfeiture of rights. Cf. Estate of Lewis v. Lewis,
229 Ariz. 316, 324–26, ¶¶ 19–26 (App. 2012) (emphasizing extreme limits on
discretion to impose case-dispositive sanctions under civil rules for party’s
nonappearance at pretrial conference).
CONCLUSION
¶9 For the foregoing reasons, we reverse the termination order
and remand for a new termination adjudication hearing on all issues.
AMY M. WOOD • Clerk of the Court
FILED: AA
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