Jessica C. 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
JESSICA C., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, G.H., H.C., Appellees.
No. 1 CA-JV 16-0279
FILED 1-12-2017
Appeal from the Superior Court in Maricopa County
No. JD30699
The Honorable Kristin C. Hoffman, Judge, Retired
AFFIRMED
COUNSEL
The Stavris Law Firm PLLC, Scottsdale
By Christopher Stavris
Counsel for Appellant
Arizona Attorney General’s Office, Tucson
By Laura J. Huff
Counsel for Appellee Department of Child Safety
JESSICA C. v. DCS, et al
Decision of the Court
MEMORANDUM DECISION
Judge Jon W. Thompson delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Paul J. McMurdie joined.
T H O M P S O N, Judge:
¶1 Jessica C. (mother) appeals from the juvenile court’s finding
that she did not have good cause for failing to appear at the rescheduled
day of her termination trial, and the court’s subsequent order terminating
her parental rights. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 Mother is the biological parent of two children who are
subjects of this appeal, G.H. and H.C.
¶3 In June 2015, mother left home, leaving the children behind
with a significant other, unrelated to the children, without disclosing where
she would be. Six days after mother left, DCS visited the home. DCS took
temporary custody of the children because mother had not returned. DCS
then filed a petition alleging the children were dependent because mother
was not able to properly parent due to her substance abuse and mental
health issues and she had left the children without any way to contact her.
The juvenile court adjudicated the children dependent after mother failed
to appear at the dependency pretrial conference.
¶4 A report and review/permanency planning hearing was held
on May 10, 2016. At that time, the children’s guardian ad litem requested
that the court change the case plan to severance and adoption. Over
mother’s objection, the court changed the case plan as requested. At the
same hearing, the juvenile court read a “Form 3 Notice to Parent in
Termination Action” (Form 3)1 to mother in open court. Form 3 informed
mother:
1 Form 3 advised mother of the possible consequences of failing to
appear without good cause pursuant to Arizona Rules of Procedure for the
Juvenile Court 64(C) and 66(D)(2) as discussed infra ¶ 10 and footnote 4.
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You are required to attend all termination hearings. If you
cannot attend a court hearing, you must prove to the Court
that you had good cause for not attending. If you fail to . . .
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 your parental rights to your child
based on the record and evidence presented.
Ariz. R.P. Juv. Ct. Form 3. Mother acknowledged that she understood Form
3, and the court provided her with a copy. The court then scheduled the
initial severance hearing for June 9, 2016.
¶5 Later in May, DCS filed a motion to terminate mother’s
parental rights on two grounds—1) chronic substance abuse and 2) nine-
months out-of-home placement.
¶6 Mother and her counsel were present at the June 9 hearing.
However, after the court was informed that mother had not been timely
served with the motion for termination filed May 25, 2016, the court ordered
the severance hearing rescheduled for June 15, 2016. Mother did not attend
the June 15 hearing. Her attorney reminded the court that mother was
residing at a rescue mission for women and children, but that he did not
think the mission had restrictions on mother leaving. The court stated that
if mother’s attorney finds mother has appropriate reasons for not attending
the hearing, “you can file a motion and I’ll make that determination.” The
court nonetheless then ruled finding mother had waived appearance
without good cause and elected to proceed in her absence.
¶7 After hearing testimony from a DCS safety specialist or case
manager who was familiar with the case and appearing in place of the
assigned DCS case manager, the court found the existence of DCS’s alleged
grounds for termination was proven by clear and convincing evidence, and
ordered the termination of mother’s parental rights as to both children.
¶8 On July 1, 2016, after reportedly being contacted by mother
on June 30, mother’s attorney filed a request for finding of good cause for
failure to appear. Through the request, mother sought to compel the
juvenile court to reset the initial severance hearing “to a time convenient to
all parties and that the matter proceed toward a contested Severance Trial.”
After considering the request, on July 21 the court denied the request.
Mother timely appealed. We have jurisdiction pursuant to Arizona Revised
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Statutes (A.R.S.) §§ 8-235(A) (2014), 12-120.21(A)(1) (2016), and -2101(A)(1)
(2016).2
DISCUSSION
¶9 The issue before us on appeal is whether the juvenile court
abused its discretion in finding mother lacked good cause for failing to
appear at the rescheduled initial termination hearing and in consequently
severing mother’s parental rights based on the evidence provided. Because
we conclude the court did not abuse its discretion, we affirm its “no good
cause” finding. We likewise affirm the court’s subsequent decision to
terminate mother’s parental rights to the subject children because the court
did not clearly err in doing so.
¶10 Arizona Rules of Procedure for the Juvenile Court 66(D)(2)
(Rule 66(D)(2))3 provides the relevant provision guiding our analysis. In
pertinent part, Rule 66(D)(2) provides:
If the court finds the parent . . . failed to appear at the
termination adjudication hearing without good cause, had notice
of the hearing, was properly served pursuant to Rule 644 and
2 Absent material changes from the relevant date, we cite a statute’s
current version.
3 The procedures of this rule give effect to A.R.S. § 8-863(C) (2014).
Manuel M. v. Ariz. Dep’t of Econ. Sec., 218 Ariz. 205, 210, ¶ 14, 181 P.3d 1126,
1130 (App. 2008). A.R.S. § 8-863(C) states: “If a parent does not appear at
the [termination adjudication] hearing, the court, after determining that the
parent has been served as provided in subsection A of this section, may find
that the parent has waived the parent’s legal rights and is deemed to have
admitted the allegations of the petition by the failure to appear. The court
may terminate the parent-child relationship as to a parent who does not
appear based on the record and evidence presented as provided in rules
prescribed by the supreme court.”
4 Rule 64(C) provides that a notice of hearing accompanying a motion
for the termination of parental rights “shall advise the parent . . . that failure
to appear at the initial hearing, pretrial conference, status conference or
termination adjudication hearing, without good cause, may result in a finding
that the parent … has waived legal rights, including the right to trial to a
jury, and is deemed to have admitted the allegations in the motion or
petition.” Ariz. R. P. Juv. Ct. 64(C) (emphasis added).
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Decision of the Court
had been previously admonished regarding the consequences
of failure to appear, including a warning that the hearing
could go forward in the absence of the parent . . . and that
failure to appear may constitute a waiver of rights, and an
admission to the allegation[s] contained in the motion of
petition for termination, the court may terminate parental
rights based upon the record and evidence presented if the
moving party or petitioner has proved grounds upon which
to terminate parental rights.
Ariz. R. P. Juv. Ct. 66(D)(2) (emphasis added).
¶11 “[A] finding of good cause for failure to appear is largely
discretionary.” Adrian E. v. Ariz. Dep’t of Econ. Sec., 215 Ariz. 96, 101, ¶ 15,
158 P.3d 225, 230 (App. 2007) (internal citation omitted). “We therefore
review the finding for an abuse of discretion and generally will reverse only
if the juvenile court’s exercise of that discretion was ‘manifestly
unreasonable, or exercised on untenable grounds, or for untenable
reasons.’” Id. (quoting LaShonda M. v. Ariz. Dep’t of Econ. Sec., 210 Ariz. 77,
83, ¶ 19, 107 P.3d 923, 929 (App. 2005) (internal quotation and citation
omitted)).
¶12 Here, the evidence does not support a conclusion that the
juvenile court abused its discretion in finding mother failed to appear
without good cause at the rescheduled termination adjudication hearing.
Mother asked the juvenile court to “find that the unfortunate combination
of the unforeseeable theft of her purse and the resulting lack of both
information and economic resources be considered ‘good cause’ for her
failure to appear on June 15.” In support of this request, mother’s attorney
asserted that because her purse was stolen sometime between June 9 and
the rescheduled severance hearing, which included her phone and the
paperwork given to her the initial severance hearing, mother had “no
ability to contact participants in the case.” Mother claimed she was able to
contact her case worker only after moving to another residential facility.
However, the court could have concluded that mother could have done
more to ensure her attendance at the severance hearing. Since mother was
at the initial severance hearing on June 9 she was properly put on notice
that the rescheduled hearing would be held June 15. Given that mother lost
her purse before June 15, she likely had sufficient time to ask her residential
facility for help in ascertaining the hearing date or to contact the court or
her lawyer in her behalf. Considering that she had been told the court
might terminate her parental rights if she missed the severance hearing, the
court did not err by finding she failed to show good cause for her absence.
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Decision of the Court
¶13 Upon the juvenile court’s finding of “no good cause” and in
light of the fact that mother was properly informed as required by Rule 64,
and admonished of the consequences of her failure to appear without good
cause, pursuant to Rule 66(D)(2), the juvenile court acted within its
discretion in proceeding to the merits of DCS’s motion to terminate her
parental rights. See also Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246,
248-49, ¶ 12, 995 P.2d 682, 684-85 (2000) (reaffirming that a parent’s right to
custody and control of his or her own child while fundamental, is not
absolute, and that severance of a parental relationship may be warranted
where the state proves one of A.R.S. § 8-533’s statutory grounds for
termination by clear and convincing evidence). To terminate parental
rights, the juvenile court must additionally find, by a preponderance of the
evidence, that severance of the relationship is in the child’s best interest.
Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22, 110 P.3d 1013, 1018 (2005).
¶14 Because the juvenile court is in the best position to judge
credibility and to weigh evidence, “we will accept the juvenile court’s
finding of fact unless no reasonable evidence supports those findings, and
we will affirm a severance order unless it is clearly erroneous.” Jesus M. v.
Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 280, ¶ 4, 53 P.3d 203, 205 (App. 2002).
We do not reweigh the evidence, but “look only to determine if there is
evidence to sustain the court’s ruling.” Mary Lou C. v. Ariz. Dep’t of Econ.
Sec., 207 Ariz. 43, 47, ¶ 8, 83 P.3d 43, 47 (App. 2004).
¶15 There is sufficient evidence in the record to support the
termination of mother’s parental rights based on the grounds DCS asserted
for termination and the juvenile court’s best interest findings.
¶16 First, as noted, DCS’s motion to terminate mother’s parental
rights stated two grounds for termination—1) chronic substance abuse and
2) nine-months out-of-home placement. On appeal, mother does not
dispute the existence of either of these grounds, nor could she, because they
are fully established by the court’s findings, as supported by the evidence.
¶17 At trial, the coverage DCS case manager testified to the
following: 1) mother has a history of chronic abuse of dangerous drugs that
would likely continue for an indeterminate period of time; 2) although DCS
tried to engage mother in services5 to further her recovery from her chronic
5 The DCS case manager testified that mother was offered case
management services, hair follicle testing, parent aide services, referrals to
community resources, substance abuse assessment, substance abuse
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JESSICA C. v. DCS, et al
Decision of the Court
dependence, mother had not participated in the services; 3) at no point had
mother tested and submitted a clean urinalysis, but instead missed three
consecutive scheduled tests; 4) to DCS’s knowledge, mother had not
stopped using drugs; 5) the children had been in DCS’s care for a period of
nine months; and 6) mother has “substantially neglected or willfully
refused to remedy the circumstances that caused her children to be in an
out-of-home placement.” This testimony supports the conclusion that
mother is unable to discharge her parental duties on both grounds; as
noted, DCS needed to show only one statutory ground for termination.
¶18 The evidence also reasonably supports the juvenile court’s
additional finding, by preponderance of the evidence, that severance of
parental rights would be in the children’s best interest. As the case manager
stated, “[mother had] not shown that . . . [she has] the willingness or the
ability to parent [the children] . . . and the children really do need to start
having some permanency . . . [i]f they went back to [mother] . . . there would
be a risk of harm or their safety would be at risk.” DCS’s case manager
indicated that the children would not achieve permanency if they returned
to mother and that DCS believed the children were adoptable. The case
manager also stated that DCS was assessing a maternal aunt as a potential
placement, and if that turns out to not be a good placement, DCS would
submit “a motion for a request for foster care for both children.” Based on
this evidence, it would not be in the children’s best interests to remain in
mother’s custody.
¶19 We therefore uphold the juvenile court’s order of severance
because it was not clearly erroneous.
treatment, transportation, urinalysis, and visitation. In fact, mother was
referred to substance abuse training four times, but each time she was
closed out of services for lack of contact and compliance.
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JESSICA C. v. DCS, et al
Decision of the Court
CONCLUSION
¶20 Having found there is sufficient evidence to support the
juvenile court’s finding that mother failed to appear at the rescheduled
termination adjudication without good cause and that the court did not err
in severing mother’s parental rights, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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