In Re Term of Parental Rights as to Y.G. and Y.G. ( 2023 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
IN RE TERMINATION OF PARENTAL RIGHTS AS TO Y.G. and Y.G.
No. 1 CA-JV 22-0213
FILED 3-9-2023
Appeal from the Superior Court in Maricopa County
No. JD40557
The Honorable Pamela S. Gates, Judge
AFFIRMED
COUNSEL
Maricopa County Public Advocate’s Office, Mesa
By Suzanne W. Sanchez
Counsel for Appellant
Arizona Attorney General’s Office, Mesa
By Emily M. Stokes
Counsel for Appellee Arizona Department of Child Safety
IN RE TERM OF PARENTAL RIGHTS AS TO Y.G. and Y.G.
Decision of the Court
MEMORANDUM DECISION
Judge D. Steven Williams delivered the decision of the court, in which
Presiding Judge Jennifer M. Perkins and Judge Angela K. Paton joined.
W I L L I A M S, Judge:
¶1 Yessica V. (“Mother”) appeals the superior court’s order
terminating her parental rights to her children. For reasons that follow, we
affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 Mother has two children, born in 2019 and 2021. In 2021, the
Arizona Department of Child Safety (“DCS”) received a report that Mother
was failing to properly care for the children. DCS investigated and removed
the children from Mother’s home. A dependency petition followed.
¶3 DCS served Mother with the dependency petition, along with
the following notice:
[Y]our failure to personally appear in court at the initial
hearing, pretrial conference, status conference or dependency
adjudication, without good cause shown, may result in a
finding that you have waived your legal rights and have
admitted the allegations in the Petition. In addition, if you fail
to appear, without good cause, the hearing may go forward
in your absence and may result in an adjudication of
dependency [or] termination of your parental rights . . . based
upon the record and the evidence presented to the court . . . .
DCS also served Mother a copy of the superior court’s order setting an
initial dependency hearing that warned:
[Y]our failure to appear without good cause may result in a
finding that you have waived your legal rights and have
admitted the allegations in the Petition. In addition, if you fail
to appear without good cause, the hearings may go forward
in your absence and may result in an adjudication of
dependency [or] termination of your parental rights . . . based
upon the record and evidence presented to the Court . . . .
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IN RE TERM OF PARENTAL RIGHTS AS TO Y.G. and Y.G.
Decision of the Court
¶4 Mother appeared at the initial dependency hearing, where the
court instructed Mother to meet with her attorney to review and complete
“Form 1”—a standard form notifying parents of their rights and
responsibilities in a dependency action. Mother’s counsel later emailed
Form 1 to Mother. Form 1 warned:
If you fail to attend the [dependency hearings] without good
cause, the Court may determine that you have waived your
legal rights and admitted the allegations in the dependency
petition. The Court may go forward with the Dependency
Adjudication Hearing in your absence and may rule that your
child is dependent based on the record and evidence
presented. . . . If you do not participate in reunification
services or fail to attend further proceedings without good
cause, the Court may terminate your parental rights . . . .
Mother never signed Form 1.
¶5 When Mother failed to appear at the dependency pre-trial
conference, the superior court found that Mother had “waiv[ed] her right
to contest the proceedings,” and adjudicated the children dependent.
¶6 Two months later, DCS moved to terminate Mother’s parental
rights. DCS served Mother’s counsel with a termination motion and a notice
of the initial termination hearing. The notice warned:
[Y]our failure to personally appear in court at the initial
hearing, pretrial conference, status conference, or termination
adjudication, without good cause shown, may result in a
finding that you have waived your legal rights and have
admitted the allegations in the Motion. In addition, if you fail
to appear without good cause, the hearing may go forward in
your absence and may result in termination of your parental
rights based upon the record and the evidence presented to
the Court.
¶7 Mother did not appear at the initial termination hearing and
the court held a termination trial in her absence. Mother’s counsel had the
opportunity to present evidence, make objections, and cross-examine
DCS’s witnesses on Mother’s behalf. At the conclusion of the hearing, the
court stated it would terminate Mother’s parental rights and “provide
detailed findings” in a later order.
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IN RE TERM OF PARENTAL RIGHTS AS TO Y.G. and Y.G.
Decision of the Court
¶8 Before the court issued its written termination order, Mother
moved the court to reconsider the termination of her parental rights. The
court denied Mother’s motion and issued its written order terminating
Mother’s parental rights.
¶9 Mother timely appealed. We have jurisdiction under Article
6, Section 9, of the Arizona Constitution, A.R.S. §§ 8-235(A), 12-120.21(A)(1),
-2101(A)(1), and Arizona Rule of Juvenile Procedure (“Rule”) 601(a).
DISCUSSION
¶10 Mother does not challenge the sufficiency of the evidence
supporting grounds for terminating her parental rights, nor that
termination was in the children’s best interests. Similarly, Mother makes no
claim that good cause existed for her failure to appear at the initial
termination hearing, or that she lacked notice or was improperly served.
Crystal E. v. Dep’t of Child Safety, 241 Ariz. 576, 578, ¶ 6 (App. 2017) (“[W]e
adhere to the policy that it is generally not our role to sua sponte address
issues not raised by the appellant.”); Christina G. v. Ariz. Dep’t of Econ. Sec.,
227 Ariz. 231, 234, ¶ 14 n.6 (App. 2011) (recognizing that the failure to
develop an argument on appeal usually results in abandonment and waiver
of the issue).
¶11 Mother’s sole contention is that the superior court violated
her due process rights by conducting the initial termination hearing in her
absence when she had not been properly admonished regarding the
consequences of her failure to appear under Rule 352(f)(1)(C). We review
the interpretation and application of procedural rules and constitutional
issues de novo. Brenda D. v. Dep’t of Child Safety, 243 Ariz. 437, 442, ¶ 15
(2018); Alice M. v. Dep’t of Child Safety, 237 Ariz. 70, 72, ¶ 7 (App. 2015).
¶12 Parental rights are fundamental, but not absolute. Dominique
M. v. Dep’t of Child Safety, 240 Ariz. 96, 97, ¶ 7 (App. 2016). A court may
terminate parental rights “under certain circumstances, so long as the
parents whose rights are to be severed are provided with ‘fundamentally
fair procedures’ that satisfy due process.” Kent K. v. Bobby M., 210 Ariz. 279,
284, ¶ 24 (2005) (quoting Santosky v. Kramer, 455 U.S. 745, 754 (1982)). “In
termination proceedings, [d]ue process requires notice reasonably
calculated, under all the circumstances, to apprise interested parties of the
pendency of the action and to afford them an opportunity to present their
objections.” Monica C. v. Ariz. Dep’t of Econ. Sec., 211 Ariz. 89, 92, ¶ 16 (App.
2005) (alteration in original) (quotation omitted). But due process rights
may be waived, so long as the waiver is “voluntary, knowing, and
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IN RE TERM OF PARENTAL RIGHTS AS TO Y.G. and Y.G.
Decision of the Court
intelligent.” Manuel M. v. Ariz. Dep’t of Econ. Sec., 218 Ariz. 205, 211,
¶¶ 19–20 (App. 2008).
¶13 Under Rule 352(f)(1), the superior court “may proceed with
the termination adjudication hearing if the parent fails to appear at the
initial termination hearing without good cause.” The court must find that
the parent had notice of the initial termination hearing, was properly
served, and, under subsection (C):
[H]ad been admonished regarding the consequences of
failing to appear at the initial termination hearing, including
a warning that the adjudication hearing could go forward in
the parent’s absence, and that failing to appear may constitute
a waiver of rights and an admission of the allegations in the
termination petition or motion.
Ariz. R.P. Juv. Ct. 352(f)(1)(C). Adherence to this rule ensures that a parent
voluntarily, knowingly, and intelligently waives her right to fully contest a
termination motion by failing to appear. See Manuel M., 218 Ariz. at 211,
¶ 20.
¶14 Mother contends Form 1 was an inadequate admonition
under Rule 352(f)(1)(C). She argues that it “did not contain any warning
that failure to attend a hearing in a termination action may result in
severance of the parent-child relationship,” and that it is Form 4 that
provides this warning. Mother maintains she ever received Form 4.
¶15 Rule 352(f)(1)(C) does not require that a parent be
admonished through Form 4 of the consequences of her failure to appear
before adjudicating a termination motion in a parent’s absence. See also
Ariz. R.P. Juv. Ct. 352(e) (providing that court may provide parent with
Form 4 at the initial termination hearing). Indeed, Rule 351(c)(2)
complements Rule 352(f)(1)(C) by requiring the notice of the initial
termination hearing to advise the parent of the consequences of her failure
to appear. Accordingly, this court has determined that DCS can provide the
required admonishment in its notice of hearing. See Jeanne A. v. Dep’t of Child
Safety, No. 2 CA-JV 2019-0074, 2019 WL 4187361, at *3, ¶ 10 (Ariz. App. Sept.
4, 2019) (mem. decision); see also Angelica G. v. Dep’t of Child Safety, No.
2 CA-JV 2017-0148, 2017 WL 6336880, at *2, ¶¶ 9–10 (Ariz. App. Dec. 12,
2017) (mem. decision) (determining parent was put on notice about hearing
and the risks of failing to attend by DCS motion and notice, despite no Form
3 being signed).
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IN RE TERM OF PARENTAL RIGHTS AS TO Y.G. and Y.G.
Decision of the Court
¶16 Likewise, the juvenile rules do not suggest that
admonishments regarding the consequences of a parent’s failure to appear
expire, nor do the rules require new admonishments be given when the
course of litigation changes. In Kimberly M. v. Dep’t of Child Safety, No.
2 CA-JV 2021-0032, 2021 WL 3878636, at *2, ¶ 9 (Ariz. App. Aug. 31, 2021)
(mem. decision), this court determined a parent was sufficiently
admonished by a warning given in a previous (and ultimately dismissed)
termination action more than a year before the termination motion at issue
was filed.
¶17 Mother’s warnings of the consequences of her failure to
appear for scheduled hearings were not limited to the warnings in Form 1.
Both DCS and the superior court warned Mother at the beginning of the
dependency action of the potential consequences of her failure to appear
for any hearing—including the possibility of her parental rights being
terminated.
¶18 On this record, Mother’s due process rights were not violated.
CONCLUSION
¶19 For the foregoing reasons, we affirm the superior court’s
termination order.
AMY M. WOOD • Clerk of the Court
FILED: AA
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