Dominique M. v. Dcs ( 2018 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
DOMINIQUE M., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, A.K., S.K., Appellees.
No. 1 CA-JV 18-0145
FILED 8-30-2018
Appeal from the Superior Court in Maricopa County
No. JD18130
The Honorable Jo Lynn Gentry, Judge
VACATED AND REMANDED
COUNSEL
Czop Law Firm, Higley
By Steven Czop
Counsel for Appellant
Arizona Attorney General’s Office, Phoenix
By Sandra L. Nahigian
Counsel for Appellee Department of Child Safety
DOMINIQUE M. v. DCS, et al.
Decision of the Court
MEMORANDUM DECISION
Chief Judge Samuel A. Thumma delivered the decision of the Court, in
which Judge Jon W. Thompson and Judge David D. Weinzweig joined.
T H U M M A, Chief Judge:
¶1 Dominique M. (Mother) appeals from an order terminating
her parental rights to her daughters, A.K. and S.K. Mother argues she was
denied her due process rights when the superior court found that she failed
to appear, waived her legal rights and proceeded in her absence, when she
had just been appointed a new attorney who “could not fully represent her
at a default hearing.” The Department of Child Safety (DCS) concedes error
and asks that this court vacate the termination order and remand for further
proceedings. For the reasons set forth below, the court accepts the
confession of error. Accordingly, this court vacates the order terminating
Mother’s parental rights to A.K. and S.K. and remands for further
proceedings consistent with this decision.
¶2 After DCS filed dependency petitions in May 2017 (for A.K.)
and June 2017 (for S.K.), the children were found dependent as to Mother
in September 2017. The case plan was changed to severance and adoption
and, in January 2018, DCS filed a motion to terminate Mother’s parental
rights. Mother denied the allegations at an initial termination hearing,
where the court set a March 20, 2018 pretrial conference.
¶3 On March 1, 2018, Mother’s attorney moved to withdraw; the
court granted that motion on March 2, 2018 and ordered that a new attorney
be appointed to represent Mother. At the March 20, 2018 pretrial
conference, the court appointed a new attorney to represent Mother.
Although Mother was not present at that hearing, the minute entry from
that hearing states “[i]t is believed the [M]other is currently at a visitation
with the children.” Mother’s new attorney called the parent aide
supervising the visit and Mother then appeared by telephone at the hearing.
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DOMINIQUE M. v. DCS, et al.
Decision of the Court
¶4 Among other things, the minute entry from that hearing
states “[t]he parent aide reports the visit today is a standing appointment
and was not set by the case manager;” Mother continued to deny the
allegations in the motion to terminate; Mother was not present because the
visit conflicted with the pretrial conference; and “Mother acknowledges
that her failure to appear for the Pretrial Conference is because it slipped
her mind that she had Court. This is not good cause to fail to appear.
Nonetheless, [M]other is present telephonically so the Court proceeds.”
¶5 Mother’s telephonic presence was intermittent. The minute
entry shows Mother was present from 11:45 to 11:47 a.m.; then “no longer
present” until 11:48 a.m.; then present until 11:52; then “no longer present.”
The minute entry also states that while “trial date and time are discussed,
[M]other disconnects from the call” and continues:
THE COURT FINDS the [M]other voluntarily
chose to disconnect the telephone call after
expressing displeasure with the date for the
Contested Severance Trial and therefore the
Court will proceed by default as to the [M]other
given her failure to appear or remain on the
phone until the setting of a trial date and time.
LET THE RECORD REFLECT that counsel for
the [M]other objects to the Court proceeding by
default as to the [M]other.
¶6 Although confirming the substance of this minute entry, the
transcript from the hearing reflects frustration by Mother that the possible
trial setting would conflict with her work schedule, that her newly-
appointed attorney was attempting to explain to Mother what the court was
doing when she disconnected the call and that Mother’s newly-appointed
attorney was concerned because he knew “very little about the case other
than the petition.” Mother’s attorney added, “[s]o I need to object on the
record. I think that she should not have been defaulted at this time, and she
should have had her due process rights protected with a trial.”
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DOMINIQUE M. v. DCS, et al.
Decision of the Court
¶7 The court overruled these objections, received evidence,
granted the motion to terminate Mother’s parental rights and relieved
Mother’s newly-appointed attorney “of further responsibility as counsel for
the [M]other in this matter, after the running of appellate time.” This timely
appeal by Mother followed.
¶8 In a termination proceeding, indigent parents have a right to
appointed counsel. See Ariz. Rev. Stat. § 8-221(B) (2018); Christy A. v. Ariz.
Dep’t of Econ. Sec., 217 Ariz. 299, 307 ¶ 28 (App. 2007). This right applies
even when a parent fails to appear and the court proceeds in the parent’s
absence. Brenda D. v. Dep’t of Child Safety, 243 Ariz. 437, 446 ¶ 30 (2018). An
absent parent’s counsel has the right to “fully participate in the hearing on
the parent’s behalf, including a right to cross-examine the state’s witnesses,
object to proffered evidence, and present witnesses or other evidence.” Id.
A court’s failure to allow a parent’s counsel to “effectively participate” in a
severance proceeding is reversible error. Daniel Y. v. Ariz. Dep’t of Econ. Sec.,
206 Ariz. 257, 260 ¶ 12 (App. 2003).
¶9 DCS concedes that Mother did not receive the benefit of her
right to counsel in this case.
Her counsel had just been appointed, had not
yet familiarized himself with the case, and other
than a telephone conversation with her that
morning, had not yet discussed the case with
her or even met her. Although he was present
throughout the proceeding, his lack of
familiarity with the case rendered him unable to
effectively participate and represent Mother’s
interests at trial. She was, in essence,
unrepresented. Because DCS concedes that
Mother was denied her due process and
statutory rights to effective representation, this
Court need not consider Mother’s other
arguments on appeal.
In light of this concession of error, DCS requests
that the Court vacate the juvenile court’s order
terminating Mother’s parental rights to [the
children] and remand this matter for further
proceedings.
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DOMINIQUE M. v. DCS, et al.
Decision of the Court
¶10 The court accepts this confession of error for these reasons.
Accordingly, the order terminating Mother’s parental rights is vacated and
this matter is remanded for further proceedings. Given this ruling, this
court need not, and expressly does not, address Mother’s argument that
DCS did not meet its burden of proof at the March 20, 2018 pretrial
conference regarding best interests.
AMY M. WOOD • Clerk of the Court
FILED: AA
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