Nicole M. 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
NICOLE M., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, A.N., A.C., N.F., Appellees.
No. 1 CA-JV 16-0389
FILED 5-11-2017
Appeal from the Superior Court in Maricopa County
No. JD528801
The Honorable Timothy J. Ryan, Judge
AFFIRMED
COUNSEL
Law Office of H. Clark Jones, LLC, Mesa
By Clark Jones
Counsel for Appellant
Arizona Attorney General’s Office, Mesa
By Nicholas Chapman-Hushek
Counsel for Appellee Department of Child Safety
NICOLE M. v. DCS, et al.
Decision of the Court
MEMORANDUM DECISION
Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Margaret H. Downie and Judge Donn Kessler joined.
J O N E S, Judge:
¶1 Nicole M. (Mother) appeals the juvenile court’s order denying
her motion to set aside its finding she lacked good cause for her failure to
appear at a pretrial conference in a severance proceeding. For the following
reasons, we affirm.
FACTS1 AND PROCEDURAL HISTORY
¶2 A.N., A.C., and N.F. (the Children) were removed from
Mother’s care in May 2015 after N.F. was born substance-exposed to
methamphetamine. The Department of Child Safety (DCS) immediately
filed a petition alleging the Children were dependent as to Mother on the
grounds of substance abuse and neglect. Mother contested the allegations
of the petition but failed to appear for the dependency hearing. After taking
testimony and evidence, the juvenile court found the Children dependent
as to Mother and approved a case plan of family reunification.2
¶3 Mother began supervised visitation with the Children in
December 2015 and behaved appropriately during those visits. However,
she continued to test positive for methamphetamine and was closed out of
substance abuse testing and treatment services multiple times for non-
participation.
1 We view the facts in the light most favorable to upholding the
juvenile court’s orders. See Marianne N. v. Dep’t of Child Safety, 240 Ariz. 470,
471 n.1, ¶ 1 (App. 2016) (citing Ariz. Dep’t of Econ. Sec. v. Matthew L., 223
Ariz. 547, 549, ¶ 7 (App. 2010)).
2 Although the Children were also found dependent as to their fathers,
and the fathers’ parental rights were later terminated, they are not parties
to this appeal.
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NICOLE M. v. DCS, et al.
Decision of the Court
¶4 After learning Mother had failed to fully engage in the
recommended services, the juvenile court approved DCS’s request to
change the case plan to severance and adoption — first as to N.F., and then
as to the older children. DCS filed motions to terminate Mother’s parental
rights to the Children, alleging severance was warranted based upon
Mother’s history of chronic abuse of dangerous drugs and the length of time
the Children had been in out-of-home care. See Ariz. Rev. Stat. (A.R.S.) § 8-
533(B)(3),3 (8)(a)-(b).
¶5 At a May 2016 hearing, which Mother attended in person, the
juvenile court continued the pretrial conference to June 14, 2016. Mother
did not attend the continued hearing. The court proceeded in her absence,
and, after receiving exhibits and testimony from the DCS case manager,
found DCS had proved all statutory grounds for severance by clear and
convincing evidence and that severance was in the Children’s best interests
by a preponderance of the evidence. The court entered an order
terminating Mother’s parental rights to the Children.
¶6 Mother moved to set aside the termination order, asserting
she had good cause for her failure to appear because she was incarcerated
at the time of the hearing. Documents attached to the motion indicated
Mother was jailed for a probation violation on May 31, 2016, and was not
released until June 27. At oral argument on the motion, Mother’s counsel
avowed Mother did not have contact information for her attorney, the
juvenile court, or DCS while incarcerated, and, although she advised the
jail staff of the court date, “nothing happened.” Thus, counsel posited,
Mother acted reasonably in “d[oing] the only thing that she could do, which
was come directly to the Court and address this issue [after she was
released].”
¶7 After taking the matter under advisement, the juvenile court
issued a ruling finding:
[First], Mother was aware that she could appear
telephonically if necessary, as she heard and observed Father
appearing telephonically for . . . court proceedings in this
matter. Second, Mother was able to appear telephonically
while incarcerated, but chose not to do so, as evidenced by
her failure to do so. Third, Mother has provided no plausible
explanation as to why she failed to contact her attorney while
3 Absent material changes from the relevant date, we cite a statute’s
current version.
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NICOLE M. v. DCS, et al.
Decision of the Court
incarcerated, and no explanation as to why she made no effort
to call in to this [court] while incarcerated.
The court also stated it was “tak[ing] judicial notice . . . that inmates of the
Maricopa County Jail are granted regular telephonic access to counsel in
dependency proceedings.”
¶8 Based upon these considerations, the juvenile court affirmed
its conclusion that Mother did not have good cause for her failure to appear.
Mother timely appealed, and we have jurisdiction pursuant to A.R.S. §§ 8-
235(A), 12-120.21(A)(1), -2101(A)(2), and Arizona Rule of Procedure for the
Juvenile Court 103(A). See M & M Auto Storage Pool, Inc. v. Chem. Waste
Mgmt., Inc., 164 Ariz. 139, 141 (App. 1990) (“An order denying or granting
a motion to set aside a judgment . . . is appealable as a ‘special order made
after final judgment.’”) (citations omitted).
DISCUSSION
¶9 Although the right to the custody and control of one’s
children is fundamental, it is not absolute. See Michael J. v. Ariz. Dep’t of
Econ. Sec., 196 Ariz. 246, 248, ¶¶ 11-12 (2000). If a parent is properly served
with a motion for termination, has notice of a hearing, and is advised of the
consequences for failing to appear, but does not appear and no good cause
is shown for that failure, the juvenile court may find the parent waived her
rights and is deemed to have admitted the statutory bases for termination
as alleged in the motion. See A.R.S. § 8-537(C); see also Ariz. R.P. Juv. Ct.
65(C)(6)(c); Christy A. v. Ariz. Dep’t of Econ. Sec., 217 Ariz. 299, 304, ¶¶ 13-14
(App. 2007).
¶10 Mother does not dispute she was properly served with the
motion for termination and had previously received notice that her parental
rights could be terminated if she failed to attend proceedings without good
cause; she only argues the juvenile court erred in concluding she lacked
good cause for her failure to appear and violated her due process rights by
proceeding with the severance trial in her absence. Because a parent may
waive her right to procedural due process if she fails to appear for certain
hearings without good cause, see Manuel M. v. Ariz. Dep’t of Econ. Sec., 218
Ariz. 205, 211, ¶ 19 (App. 2008) (citing Ariz. Dep’t of Econ. Sec. v. Redlon, 215
Ariz. 13, 17, ¶ 9 (App. 2007)), the resolution of both issues turns on the
court’s determination that Mother did not show good cause for her failure
to appear.
¶11 To show good cause to set aside a termination order, a parent
must show both: “(1) mistake, inadvertence, surprise or excusable neglect
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NICOLE M. v. DCS, et al.
Decision of the Court
exists[,] and (2) a meritorious defense to the claims exists.” Christy A., 217
Ariz. at 304, ¶ 16 (citations omitted). Conduct is excusable if it “is such as
might be the act of a reasonably prudent person under the same
circumstances.” Id. (quoting Ulibarri v. Gerstenberger, 178 Ariz. 151, 163
(App. 1993)). “We review the court’s finding that a parent lacked good
cause for her failure to appear for an abuse of discretion and will reverse
only if ‘the juvenile court’s exercise of that discretion was manifestly
unreasonable, or exercised on untenable grounds, or for untenable
reasons.’” Marianne N., 240 Ariz. at 474, ¶ 15 (quoting Adrian E. v. Ariz.
Dep’t of Econ. Sec., 215 Ariz. 96, 101, ¶ 15 (App. 2007)); see also Bob H. v. Ariz.
Dep’t of Econ. Sec., 225 Ariz. 279, 282, ¶ 12 (App. 2010) (“The juvenile court
is in the best position to make discretionary findings such as what
constitutes good cause for failure to appear.”) (citation omitted).
¶12 Mother argues the juvenile court abused its discretion in
concluding her absence from the proceeding was voluntary. We disagree.
Although Mother argues it is error to conclude a person is voluntarily
absent from proceedings simply by virtue of committing voluntary acts the
person knows may result in violation of her release conditions, see State v.
Chavez-Inzunza, 145 Ariz. 362, 365 (App. 1985), there is no indication from
the court’s order that it employed such reasoning. Rather, the court
concluded Mother had not adequately explained why she could not or did
not contact her attorney, the court, or DCS to advise of her incarceration.
See supra ¶ 7. This finding is supported by the record, which reflects Mother
did not have any contact information “on her” at the time she was arrested
and did not believe a call to DCS “was . . . an option for her.” Mother did
not explain what efforts she took, if any, to obtain publicly available contact
information for her attorney, DCS, or the court in the two weeks between
the date of her arrest and the date of the hearing. Nor did Mother present
any evidence she attempted to advise the court of her circumstances
through a friend, family member, or criminal counsel. Unexplained neglect
is not excusable. See Richas v. Superior Court, 133 Ariz. 512, 515 (1982).
¶13 Mother also argues the juvenile court’s finding is invalid
because it is based, in part, upon facts of which the court improperly took
judicial notice. Under Arizona Rule of Evidence 201(b), a court “may
judicially notice a fact that is not subject to reasonable dispute because it:
(1) is generally known within the trial court’s territorial jurisdiction; or (2)
can be accurately and readily determined from sources whose accuracy
cannot reasonably be questioned.” Even assuming the local jail’s general
practices regarding telephone access do not fit within the purview of Rule
201(b), the court’s error does not render its conclusion reversible absent a
showing of resulting prejudice. See Lashonda M. v. Ariz. Dep’t of Econ. Sec.,
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NICOLE M. v. DCS, et al.
Decision of the Court
210 Ariz. 77, 82-83, ¶ 19 (App. 2005) (citation omitted); see also Alice M. v.
Dep’t of Child Safety, 237 Ariz. 70, 73, ¶ 12 (App. 2015) (applying harmless
error analysis to the juvenile court’s error) (citation omitted). Mother’s
access to the telephone while incarcerated is immaterial where she did not
establish she had acted reasonably in obtaining the telephone numbers she
might have used had a phone been available.4 We find no abuse of
discretion.
CONCLUSION
¶14 The order terminating Mother’s parental rights to the
Children is affirmed.
AMY M. WOOD • Clerk of the Court
FILED: AA
4 Because Mother has failed to show excusable neglect, we need not
and do not address her contention that she had a meritorious defense to the
allegations of the termination motion. See Christy A., 217 Ariz. at 304, ¶ 16
(requiring the moving party show good cause by proving both excusable
neglect and a meritorious defense).
6