K.C. v. Dcs, Deandra G. ( 2019 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
K.C., Appellant,
v.
DEPARMENT OF CHILD SAFETY, DEANDRA G., Appellees.
No. 1 CA-JV 18-0270
FILED 1-17-2019
Appeal from the Superior Court in Maricopa County
No. JD 35934
The Honorable Pamela Hearn Svoboda, Judge
AFFIRMED
COUNSEL
Robert D. Rosanelli, Phoenix
Counsel for Appellant K.C.
Denise L. Carroll, Scottsdale
Counsel for Appellee Mother
Arizona Attorney General’s Office, Phoenix
By Sandra L. Nahigian
Counsel for Appellee Arizona Department of Child Safety
K.C. v. DCS, DEANDRA G.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Jennifer B. Campbell delivered the decision of the Court,
in which Judge Paul J. McMurdie and Judge Kent E. Cattani joined.
C A M P B E L L, Judge:
¶1 K.C. appeals from the superior court’s orders finding him
dependent with regard to Deandra G. (“Mother”) and setting a case plan of
family reunification. He argues the superior court erred during the initial
dependency hearing by denying his right to counsel, denying his due-
process rights to notice and an opportunity to be heard, and by not ordering
his attendance at the hearing. Because the superior court conducted the
initial dependency proceeding in accordance with the relevant statutes and
the Rules of Procedure for the Juvenile Court and did not abuse its
discretion in finding K.C. dependent, we affirm.
BACKGROUND
¶2 K.C. was born in April 2002. In June 2018, a guardian ad litem
filed a dependency petition alleging that K.C. had been referred to juvenile
delinquency court multiple times and that Mother was unable to control
him, rendering her unable to provide adequate parenting. The petition
noted the alleged instances of K.C. engaging in assaults on Valley Metro
passengers, truancy from school, marijuana use, aggravated robbery,
criminal trespass and damage, and other violations of his juvenile
probation restrictions.
¶3 The superior court held an initial dependency hearing
regarding Mother, but she did not appear. Finding that Mother had failed
to appear without good cause, thereby waiving her rights to contest the
allegations in the dependency petition, the court found K.C. dependent.
K.C. was also not present at the hearing. The court appointed an attorney
to represent K.C. and ordered that he be transported to the next hearing if
he was in detention.
¶4 In July, the superior court held a dependency disposition
hearing. K.C.’s appointed attorney was present, but K.C. was not and
appeared telephonically from a taxi cab partway through the hearing.
K.C.’s attorney objected to proceeding with disposition and moved to
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Decision of the Court
defer—arguing that K.C. was “a bit bothered by not being present” for the
initial hearing, that DCS had changed its recommendation from remain-
with-the-family to family reunification, and that the court needed more
information regarding Mother’s failure to appear, K.C.’s psychological and
educational needs, and restoration services in order to proceed with an
appropriate disposition—but the court denied the request. Mother agreed
to participate in parenting and family counseling services, and the court set
the case plan as family reunification.
DISCUSSION
¶5 We review an order adjudicating a child dependent for an
abuse of discretion. Shella H. v. DCS, 239 Ariz. 47, 50, ¶ 13 (App. 2016). The
superior court abuses its discretion when it commits an error of law, when
it reaches a conclusion without considering evidence, or when the record
does not provide substantial evidence supporting its findings. Schickner v.
Schickner, 237 Ariz. 194, 197, ¶ 13 (App. 2015). The bests interests of the child
are paramount in dependency proceedings, and we afford broad discretion
to the superior court. Joshua J. v. Ariz. Dep’t of Econ. Sec., 230 Ariz. 417, 424,
¶ 29 (App. 2012).
¶6 K.C. first argues the superior court denied him his right to
counsel at the initial dependency hearing. K.C. did not raise this objection
with the superior court, and we therefore review only for fundamental
error. See Louis C. v. DCS, 237 Ariz. 484, 489, ¶ 20 (App. 2015) (assuming
without deciding that fundamental error review is available to a parent
challenging a dependency adjudication). To establish fundamental error,
the complainant must first show that trial error exists, and then show that
the error went to the foundation of the case, took from the defendant a right
essential to his defense, or was so egregious that he could not possibly have
received a fair trial. State v. Escalante, 245 Ariz. 135, 142, ¶ 21 (2018); Monica
C. v. Ariz. Dept. of Econ. Sec., 211 Ariz. 89, 94, ¶ 24 (App. 2005). K.C. has not
established that the superior court erred.
¶7 A juvenile has the right to be represented by counsel “[i]n
all proceedings involving offenses, dependency or termination of parental
rights that are conducted pursuant to this title and that may result in
detention.” A.R.S. § 8-221(A) (emphasis added). K.C. was not at risk of
detention as a direct consequence of being found a dependent child, and
therefore had no absolute right to his own attorney during the course of the
dependency proceedings. See A.R.S. § 8-201(16) (“‘Detention’ means the
temporary confinement of a juvenile who requires secure care in a
physically restricting facility that is completely surrounded by a locked and
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Decision of the Court
physically secure barrier with restricted ingress and egress for the
protection of the juvenile or the community pending court disposition or as
a condition of probation.”); see also Yavapai Cty. Juv. Action No. J-8545, 140
Ariz. 10, 16 (1984) (“[D]ue process does not require independent counsel for
children in each and every case in which they are involved. . . . [T]he trial
court shall appoint independent counsel, upon request of an interested
party or sua sponte, where such counsel would contribute to promoting the
child’s best interest by serving an identifiable purpose such as advocating
the child’s position in the dispute or ensuring that the record be as complete
and accurate as possible . . . .”).
¶8 Furthermore, pursuant to Rule 52(A) of the Rules of
Procedure for the Juvenile Court, the purpose of an initial dependency
hearing is for the court to determine “whether service has been completed
and whether the parent . . . admits, denies or does not contest the allegations
contained in the dependency petition.” During an initial dependency
hearing, the court is required to appoint counsel to persons entitled to
counsel pursuant to Rule 38(B). Ariz. R.P. Juv. Ct. 52(C)(2). Here, the court
not only appointed counsel for Mother during the initial dependency
hearing, but also appointed K.C. counsel—the same attorney already
representing him in his delinquency matters. In appointing K.C. counsel at
the initial dependency hearing, the court committed no error.
¶9 K.C. next argues the superior court deprived him of due
process by failing to afford him notice of the initial dependency hearing and
an opportunity to be heard. Again, K.C. did not raise this issue with the
superior court, and we therefore review only for fundamental error. Even
if the superior court erred by not affording K.C. notice and an opportunity
to be heard at that hearing, any possible error was not fundamental.
¶10 When a parent fails to appear at the initial hearing without
good cause shown, the court may adjudicate the child dependent if the
petitioner has established grounds upon which to adjudicate the child
dependent, based on the record and evidence presented. Ariz. R.P. Juv. Ct.
52(C)(6)(c). Mother did not appear at the initial dependency hearing, and
the superior court found she had failed to appear without good cause and
thereby had waived her legal rights to contest the allegations in the
dependency petition.
¶11 When, as here, a parent has effectively admitted to the
allegations by waiving her rights to contest them, no adjudication is
required. No discernible purpose would be served by requiring the child to
attend the initial hearing and to have an opportunity to speak with the
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K.C. v. DCS, DEANDRA G.
Decision of the Court
court. K.C offers no reason why any such error went to the foundation of
his case, took from him a right essential to his defense, or was so egregious
that he could not possibly have received a fair trial, Escalante, 245 Ariz. at
142, ¶ 21, and we discern none.
¶12 Lastly, K.C. argues the court did not consider his best interests
by failing to order his attendance at the initial dependency hearing.
Assuming K.C. adequately raised this issue to the superior court during the
disposition hearing, supra ¶ 4, we find no abuse of discretion.
¶13 “[T]he Rules of Procedure for the Juvenile Court . . . recognize
[that] a child’s right to attend and testify at a hearing is not absolute.
Although Rule 41(B) authorizes a child in foster care to attend ‘the child’s
court hearing and speak to the judge,’ Rule 36 directs that all juvenile rules
of procedure ‘should be interpreted in a manner designed to protect the
best interests of the child, giving paramount consideration to the health and
safety of the child.’” K.D. v. Hoffman, 238 Ariz. 278, 280, ¶ 7 (App. 2015).
¶14 K.C. fails to indicate how his attendance at the hearing could
have altered the outcome or why his best interests would have been better
served. K.C.’s guardian ad litem—a court appointee tasked with protecting
his interests pursuant to Rule 40(A)—was present at the initial dependency
hearing, and K.C. does not articulate how the guardian ad litem failed to
act. Accordingly, he has demonstrated no abuse of discretion.
CONCLUSION
¶15 For the foregoing reasons, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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