Tracy D. , Tarah D. v. Dcs, T.D. ( 2021 )

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
TRACY D., TARAH D., Appellants,
v.
DEPARTMENT OF CHILD SAFETY, T.D., Appellees.
No. 1 CA-JV 20-0204
FILED 12-30-2021
Appeal from the Superior Court in Maricopa County
Nos. JD 20340
JS 20198
The Honorable Jo Lynn Gentry, Judge
AFFIRMED
COUNSEL
The Stavris Law Firm PLLC, Scottsdale
By Alison Stavris
Counsel for Appellant, Tracy D.
Denise L. Carroll Esq., Scottsdale
Counsel for Appellant, Tarah D.
Arizona Attorney General’s Office, Tucson
By Autumn Spritzer
Counsel for Appellee, Department of Child Safety
TRACY D., TARAH D. v. DCS, T.D.
Opinion of the Court
OPINION
Judge Michael J. Brown delivered the opinion of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge David B. Gass joined.
B R O W N, Judge:
¶1 Tracy D. (“Father”) and Tarah D. (“Mother”) appeal the
juvenile court’s dependency and termination orders concerning their
daughter, T.D. Both parents challenge the court’s subject matter
jurisdiction under the Uniform Child Custody Jurisdiction and
Enforcement Act (“UCCJEA”), and Mother argues the court denied her due
process when it conducted the consolidated adjudication hearing by
telephone. Neither parent challenges the merits of the dependency or
termination orders. Because the court had default jurisdiction under the
UCCJEA, and Mother was not denied due process, we affirm.
BACKGROUND
¶2 In 2012, after a contested hearing, the juvenile court
terminated Mother’s parental rights to two older children (involving a
different father) based on chronic substance abuse. In March 2019, after
receiving no contest pleas from each parent, the court terminated Mother
and Father’s parental rights to two other children, again due to chronic
substance abuse. Sometime in May that year, and near the end of her
pregnancy with T.D., Mother traveled to Indiana, where her parents lived.
Father remained in Arizona.
¶3 Mother gave birth to T.D. in early June 2019. She returned to
Arizona with T.D. about seven weeks after the child was born. After
receiving a report about T.D.’s welfare, the Department of Child Safety
(“DCS”) investigated and took the child into temporary custody. DCS then
petitioned for dependency on August 12, 2019, alleging the parents
neglected T.D. because of their substance abuse and were unwilling or
unable to provide effective parental care. DCS also alleged Mother gave
birth to T.D. in Indiana to avoid DCS involvement.
¶4 On September 18, 2019, DCS petitioned to terminate parental
rights, alleging chronic substance abuse and prior termination due to the
same cause as to both parents, and neglect as to Mother. See A.R.S. § 8-
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Opinion of the Court
533(B)(2)–(3), (10). DCS noted both parents’ long history of substance abuse
and specifically alleged that Mother tested positive for methamphetamine
during her pregnancy with T.D. as recently as the end of January 2019.
¶5 After scheduling delays, the court conducted a consolidated
dependency/termination hearing on April 24 and 28, 2020. Because of
health and safety concerns arising from the COVID-19 pandemic, the court
conducted the hearing by telephone. The court later granted both petitions,
finding T.D. dependent as to both parents, DCS proved all three statutory
grounds for termination by clear and convincing evidence, and DCS met its
burden of showing that termination of parental rights was in the child’s best
interests by preponderance of the evidence. Each parent timely appealed,
and we have jurisdiction under A.R.S. § 8-235(A).
DISCUSSION
A. Subject Matter Jurisdiction
1. Procedural History
¶6 In its termination ruling, the juvenile court found that T.D.
had “been physically present within Arizona at all relevant times . . . [and]
Arizona is the ‘home state’ of [T.D.] under the [UCCJEA].” On appeal,
Father argued for the first time that the juvenile court lacked subject matter
jurisdiction, contending T.D.’s home state was Indiana, not Arizona.
Although the juvenile court had summarily concluded Arizona was T.D.’s
home state, because the parties had not addressed the issue, we stayed the
appeal and remanded to allow the juvenile court to conduct further
proceedings to determine its jurisdiction under the UCCJEA.1 See Bruce v.
State, 126 Ariz. 271, 272 (1980) (“Jurisdiction cannot be waived and may be
raised at any stage of the proceedings.”).
¶7 On remand, the juvenile court held a UCCJEA conference
with a circuit court judge from Jay County, Indiana, where Mother had
given birth. Mother briefly testified, though no other parties were given the
opportunity to cross-examine or to present additional evidence. The
juvenile court then stated that it appeared “Indiana would be the home
state” because Mother intended to reside there with T.D. after birth. When
1 Consistent with the child’s best interests, this avoidable step shows
the wisdom in having the parties and the juvenile court address
jurisdictional issues at the outset of dependency and termination
proceedings.
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Opinion of the Court
asked about Indiana’s “inclination in terms of exercising jurisdiction,” the
Indiana judge explained he was unaware of any dissolution matter or
Indiana Department of Child Services (“Indiana DCS”) investigation
involving T.D., but he would defer to the juvenile court’s decision. The
juvenile court then directed that a copy of T.D.’s file be provided to the
Indiana judge and canceled a previously scheduled oral argument on
jurisdiction.
¶8 The Indiana judge and an attorney with Indiana DCS
participated in a follow-up status conference with the juvenile court. The
attorney stated he did not think Indiana had jurisdiction, as Indiana DCS
had not received a report about T.D. at birth, and thus Indiana lacked a
sufficient connection to the child to “open a case.” The Indiana judge said
he would defer to the juvenile court’s ruling, but noted he could not compel
Indiana DCS to initiate proceedings for T.D. At the same hearing, T.D.’s
guardian ad litem (“GAL”) explained he had been unable to attend the
prior UCCJEA conference and did not receive notice that the oral argument
on jurisdiction had been vacated. In response, the juvenile court scheduled
an evidentiary hearing to permit the parties to present evidence and to
allow the court to make factual findings affecting jurisdiction.
¶9 Following the hearing, the juvenile court found that Arizona
was T.D.’s home state at the time of the “commencement of the dependency
and termination proceedings,” and Mother and T.D.’s presence in Indiana
for a period of weeks after the child was born was merely a temporary
absence from Arizona. After considering Mother’s testimony and other
evidence, the court reasoned in part that, other than her own assertions,
there was “no indicia of Mother’s intent to remain in Indiana.” After
receiving the court’s ruling, we permitted the parties to file supplemental
briefing addressing the court’s UCCJEA ruling.
2. Analysis
¶10 We review de novo whether the juvenile court has subject
matter jurisdiction under the UCCJEA. Gutierrez v. Fox, 242 Ariz. 259, 264,
¶ 17 (App. 2017). But to the extent a court’s jurisdictional decision depends
on its resolution of disputed facts, we will accept the court’s findings if they
are supported by reasonable evidence. Holly C. v. Tohono O’odham Nation,
247 Ariz. 495, 505, ¶ 26 (App. 2019). We also review de novo the
interpretation of statutes. Nicaise v. Sundaram, 245 Ariz. 566, 567, ¶ 6 (2019).
“We interpret statutory language in view of the entire text, considering the
context and related statutes on the same subject.” Id. at 568, ¶ 11.
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Opinion of the Court
¶11 “The jurisdiction and authority of the courts of this state in all
proceedings and matters affecting juveniles shall be as provided by the
legislature . . . .” Ariz. Const. art. VI, § 15. As the legislature has mandated,
jurisdiction over interstate child custody proceedings is governed by the
UCCJEA. See A.R.S. §§ 25-1002(4)(A), 25-1031(A)(1); Angel B. v. Vanessa J.,
234 Ariz. 69, 73, ¶ 14 (App. 2014). Almost all states have adopted the
UCCJEA, Sha’quia G. v. Dep’t of Child Safety, 251 Ariz. 212, 214, ¶ 9 (App.
2021), including Arizona, A.R.S. §§ 25-1001 to -1067, and Indiana, Ind. Code.
§§ 31-21-1-1 to -7-3.
¶12 Mother and Father first argue the juvenile court proceedings
should have ended after the initial UCCJEA conference when the court
concluded Indiana was likely the home state. Nothing in the record,
however, shows the court intended that statement as a final ruling; in fact,
the court decided to conduct a full evidentiary hearing after the GAL
pointed out the procedural irregularities of the earlier UCCJEA hearing.
The court acted within its discretion in conducting additional proceedings
and then entering a definitive jurisdictional ruling. Thus, we turn to
UCCJEA’s statutory framework to decide whether the court had subject
matter jurisdiction to hear the dependency and termination petitions.
¶13 Except for temporary emergency jurisdiction, under the
UCCJEA, an Arizona court
has jurisdiction to make an initial child custody
determination only if any of the following is true:
1. This state is the home state of the child on the date of the
commencement of the proceeding, or was the home state of
the child within six months before the commencement of the
proceeding and the child is absent from this state but a parent
or person acting as a parent continues to live in this state.
2. A court of another state does not have jurisdiction under
paragraph 1 or a court of the home state of the child has
declined to exercise jurisdiction on the ground that this state
is the more appropriate forum under § 25-1037 or 25-1038 and
both of the following are true:
(a) The child and the child’s parents, or the child and at least
one parent or a person acting as a parent, have a significant
connection with this state other than mere physical presence.
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Opinion of the Court
(b) Substantial evidence is available in this state concerning
the child’s care, protection, training and personal
relationships.
3. All courts having jurisdiction under paragraph 1 or 2 have
declined to exercise jurisdiction on the ground that a court of
this state is the more appropriate forum to determine the
custody of the child under § 25-1037 or 25-1038.
4. A court of any other state would not have jurisdiction under
the criteria specified in paragraph 1, 2 or 3.
A.R.S. § 25-1031(A). This UCCJEA subsection “is the exclusive
jurisdictional basis for making a child custody determination by a court of
this state.” A.R.S. § 25-1031(B). We must therefore determine which of the
statutory grounds for jurisdiction—home state, significant connection,
more appropriate forum, or jurisdiction by default—apply to the
circumstances presented here.
¶14 We first look to see if either Arizona or Indiana had home
state jurisdiction under § 25-1031(A)(1). For a child less than six months
old, the “[h]ome state” is “the state in which the child lived from birth with a
parent or person acting as a parent, including any period during which that
person is temporarily absent from that state.” A.R.S. § 25-1002(7)(b)
(emphasis added). Because T.D. was less than six months old when these
proceedings began, we look to the circumstances existing when DCS filed
its dependency and termination petitions to determine home state
jurisdiction under § 25-1031(A)(1). See A.R.S. § 25-1002(5)
(“‘Commencement’ means the filing of the first pleading in a proceeding.”).
DCS filed the petition for dependency on August 12, 2019, and the petition
for termination of parental rights on September 18, 2019. See A.R.S. § 25-
1002(4)(a) (“‘Child custody proceeding’ [m]eans a proceeding, including a
proceeding for . . . neglect, abuse, dependency, guardianship, paternity, [or]
termination of parental rights . . . in which legal custody, physical custody
or visitation with respect to a child is an issue or in which that issue may
appear.”); Sha’quia G., 251 Ariz. at 217, ¶ 20 (explaining the child custody
proceeding referenced in § 25-1002(7)(a) “is the motion or petition then
pending before the court”).
¶15 Parents argue the juvenile court lacked subject matter
jurisdiction because Indiana, and not Arizona, is T.D.’s “home state” under
the UCCJEA. DCS defends the court’s ruling on the grounds that Mother’s
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stay in Indiana constituted a temporary absence from Arizona under § 25-
1002(7)(b).
¶16 When T.D. was in Indiana for approximately seven weeks
after her birth, an Indiana court arguably could have exercised jurisdiction
in making an initial custody determination if such a request had been made.
But that issue is not before us. Instead, we initially determine, under the
first clause of § 25-1031(A)(1), whether any state had home state jurisdiction
when DCS commenced the dependency and termination proceedings. See
A.R.S. § 25-1031(A)(1) (referencing the “home state of the child on the date
of the commencement of the proceeding”); A.R.S. § 25-1002(7)(b) (when a
child is less than six months old, the court will look to see whether, when
the proceedings commenced, the child lived “from birth” in the state). On
both of those dates, T.D. was living in Arizona, in the custody of DCS.
Because she was no longer living “from birth” in Indiana, Indiana is not the
home state under the first clause of § 25-1031(A)(1).
¶17 Likewise, Indiana is not the home state under the second
clause. See A.R.S. § 25-1031(A)(1) (A “state has jurisdiction to make an
initial custody determination” if it was “the home state of the child within
six months before the commencement of the proceeding and the child is
absent from this state but a parent or person acting as a parent continues to live in
this state.”) (Emphasis added.) The second clause necessarily includes
children who are less than six months old. See Gutierrez, 242 Ariz. at 265,
¶ 21. In Gutierrez, the child was born in Arizona and lived here for two
months. Id. at 266, ¶ 22. The mother then moved to Wisconsin with the
child, and about two months later Father petitioned to establish custody-
related matters in Arizona. Id. As Gutierrez explained, because the child
was born in Arizona, and the father remained in Arizona after the mother’s
relocation with the child to Wisconsin, Arizona was the home state under
the UCCJEA. Id. at ¶ 23.
¶18 In contrast, when DCS commenced the proceedings in this
case, Mother was not “living” in Indiana, as confirmed by the juvenile
court’s finding that she had significant ties to Arizona and offered nothing
except self-serving testimony to suggest she planned on returning to
Indiana to live. See Holly C., 247 Ariz. at 505, ¶ 26 (we defer to the court’s
findings of fact underlying a jurisdictional determination so long as they
are supported by reasonable evidence). Thus, Indiana could not exercise
home state jurisdiction under the second clause of § 25-1031(A)(1) because
Mother did not live there, and Father still lived in Arizona. See Gutierrez,
242 Ariz. at 262, ¶ 2; see also Ind. Code § 31-21-5-1(a)(1) (“Indiana . . . was
the home state of the child within six (6) months before the commencement
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of the proceeding, and the child is absent from Indiana but a parent or
person acting as a parent continues to live in Indiana.”) (Emphasis added).
¶19 Contrary to DCS’s contention, however, Arizona is not T.D.’s
home state under § 25-1031(A)(1). T.D. did not live in Arizona “from birth”
because she was born in Indiana. See A.R.S. § 25-1002(7)(b); Meyeres v.
Meyeres, 196 P.3d 604, 607, ¶ 5 (Utah Ct. App. 2008) ([“B]ecause the child
was less than six months old when the proceedings were commenced, the
only state that could be the child’s home state was the state in which [the
child] had lived with a parent since birth.”); In re D.T., 743 A.2d 1077, 1081
(Vt. 1999) (holding that Vermont was not 10-week-old child’s home state
because the child did not live in Vermont from birth).
¶20 Additionally, Arizona does not have home state jurisdiction
under the theory that Mother’s stay in Indiana was merely a temporary
absence from Arizona. The temporary absence provision of § 25-1002(7)(b)
comes into play only when a parent temporarily leaves the state where the
child was born and then returns to that state, so the provision has no
application here. See A.R.S. § 25-1002(7)(b) (defining “[h]ome state,” for
child less than six months old, as the state where “the child lived from birth
with a parent,” including any period when the parent is “temporarily
absent from that state”); In re Tieri, 283 S.W.3d 889, 894 (Tex. App. 2008)
(explaining that, under Texas’s version of the UCCJEA, “[a]lthough a
temporary absence of a parent is part of the period, there is no provision for
the children’s temporary absence from the state”).
¶21 When there is no home state under § 25-1031(A)(1), the
second ground for jurisdiction, a “significant connection,” may allow a state
to exercise jurisdiction. See A.R.S. § 25-1031(A)(2)(a). But neither Arizona
nor Indiana had a “significant connection” with T.D. at the relevant time.
As of the filing of the dependency petition, T.D. had lived in Arizona for
less than two weeks, and when the termination petition was filed she had
lived in Arizona for about seven weeks. Given those circumstances, T.D.
had no “significant connection” to Arizona, or Indiana, other than her
physical presence. See id. Moreover, we cannot conclude that “substantial
evidence” exists in this record, as of the commencement of the proceedings,
concerning T.D.’s “care, protection, training and personal relationships” in
either state. See A.R.S. § 25-1031(A)(2)(b).
¶22 The third ground for exercising subject matter jurisdiction
applies when a state with jurisdiction declines to exercise that jurisdiction
because another state is a more appropriate forum. See § 25-1031(A)(3) (“All
courts having jurisdiction under paragraph 1 or 2 have declined to exercise
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Opinion of the Court
jurisdiction on the ground that a court of this state is the more appropriate
forum . . . .”). That provision does not apply here because neither Arizona
nor Indiana has jurisdiction under § 25-1031(A)(1) or (2).
¶23 It is the fourth ground for jurisdiction, § 25-1031(A)(4), that
allows Arizona to exercise jurisdiction over these proceedings. Under that
provision, a state may exercise jurisdiction when no other state has
jurisdiction under any of the first three grounds. Because Indiana lacks
such jurisdiction, Arizona has jurisdiction under § 25-1031(A)(4) consistent
with its state constitutional and statutory authority. See Ariz. Const. art. VI,
§ 15 (“The jurisdiction and authority of the courts of this state in all
proceedings and matters affecting juveniles shall be as provided by the
legislature . . . .”). “The juvenile court [has] exclusive original jurisdiction
over petitions to terminate the parent-child relationship when the child
involved is present in the state.” A.R.S. § 8-532(A) (emphasis added); see also
A.R.S. § 8-201(21) (“’Juvenile court’ means the juvenile division of the
superior court when exercising its jurisdiction over children in any
proceeding relating to delinquency, dependency or incorrigibility.”). T.D.
was present in Arizona when DCS filed its petitions for dependency and
termination; accordingly, under § 25-1031(A)(4) Arizona’s juvenile court
had subject matter jurisdiction to consider both petitions and all related
proceedings involving T.D.’s care and custody.
¶24 A key purpose of the UCCJEA is to avoid jurisdictional
conflicts by creating “consistency in interstate child custody jurisdiction
and enforcement proceedings.” Angel B., 234 Ariz. at 72, ¶ 7 (citation and
quotation omitted); see also Welch-Doden v. Roberts, 202 Ariz. 201, 206, ¶ 24
(App. 2002). Our analysis reflects this purpose because there has never
been any kind of case relating to T.D., much less a custody determination,
filed in or order issued by an Indiana court. And other than participating
in the brief hearings conducted by the juvenile court to resolve subject
matter jurisdiction, neither Indiana’s courts nor Indiana DCS have any
connection to this child. The parents cite no authority suggesting a court
that makes an initial custody determination under its state constitutional
and statutory authority may lose jurisdiction under the UCCJEA without
any actual jurisdictional conflict with another state. Cf. Holly C., 247 Ariz.
at 507, ¶ 34 (noting “§ 8-202 is of little help in determining jurisdiction when
there is a competing jurisdictional claim of another state” (emphasis added)).
¶25 Because the juvenile court was authorized under Arizona law
to make an initial custody determination under § 25-1031(A)(4) and § 8-532
when DCS filed its petitions, and made subsequent custody determinations
throughout the proceedings, the juvenile court has continuously retained
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subject matter jurisdiction over these matters. See Angel B., 234 Ariz. at 72,
¶ 11 (citing A.R.S. § 25-1032(A)) (“Once a court with original jurisdiction
issues an initial child custody order, the UCCJEA gives that court exclusive,
continuing jurisdiction over all future custody determinations, subject to
statutory exceptions.”); Melgar v. Campo, 215 Ariz. 605, 607, ¶ 11 (App. 2007)
(recognizing that “[t]he rule of exclusive, continuing jurisdiction remains
the jurisdictional lodestar until either the court that originated the order
determines that the child’s connection with the state is too attenuated or
that the child and parents no longer reside in the state”).
B. Telephonic Hearing
¶26 Mother argues the juvenile court violated her constitutional
rights and abused its discretion when it conducted the dependency and
termination hearing by phone. Acknowledging the importance of the
interests at stake, we conclude the court’s decision to hold a telephonic
hearing did not violate Mother’s due process rights and was within the
court’s discretion.
1. Due Process
¶27 In the weeks before the consolidated hearing, the COVID-19
pandemic prompted our supreme court to issue various administrative
orders requiring courts to limit in-person proceedings and to use other
means to take testimony. On April 14, 2020, Mother moved to continue the
dependency/termination hearing until it could be safely conducted in
person. She contended a telephonic hearing would violate her due process
rights to assist her counsel and would create a risk of erroneous credibility
determinations.
¶28 DCS opposed the motion and urged the court to determine
whether, after balancing Mother’s liberty interests against the state’s
interests, “the inherent value of in-person testimony is outweighed in these
circumstances by the risk to trial participants’ health, given the present
threat of an easily transmitted and potentially fatal virus in the
community.” DCS argued the hearing could be “conducted remotely
without unduly sacrificing due process protections,” explaining that
exhibits could be distributed electronically to all parties, and that if
communication issues arose the court would retain the option of continuing
a portion of the hearing to address specific issues.
¶29 The juvenile court denied Mother’s motion, citing an
administrative order issued by our supreme court, which directed the
juvenile court to use remote technologies in lieu of in-person hearings due
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to the public health crisis. See Ariz. Sup. Ct. Admin. Order No. 2020-47
(Mar. 16, 2020); see also Ariz. Sup. Ct. Admin. Order No. 2020-60 (Apr. 6,
2020); Ariz. Sup. Ct. Admin. Order No. 2020-70 (Apr. 16, 2020). Noting the
hearing had already been delayed for several months, the court further
reasoned that
[w]hile procedural due process may typically require in-
person termination or dependency adjudications, the right to
in-person proceedings may be limited where it is justified by
necessity. At this current time, Arizona is in the midst of the
COVID-19 pandemic. In person proceedings place the health
and safety of all participants at risk. Moreover, there is no
immediate indication of when it will be safe to return to fully
in-person proceedings, with all participants present in court.
Given the ongoing pandemic, and the reality of there not
being an obvious end in sight, this Court concludes that
Mother’s procedural due process rights will not be violated
by proceeding with a telephonic termination/dependency
trial.
¶30 At the outset of the April 24 hearing, Mother’s counsel
renewed her objection to participating telephonically, and Father’s counsel
joined the objection. The GAL also objected, asserting that holding the
hearing in this manner would create appealable issues, causing further
delay. The court proceeded with the hearing over their objections.
¶31 Mother argues she was deprived of due process because her
right to actively participate and aid her attorney was restricted, and her
attorney was limited in her ability to effectively cross-examine witnesses
and to verify and introduce exhibits. We review constitutional issues de
novo. Brenda D. v. Dep’t of Child Safety, 243 Ariz. 437, 442, ¶ 15 (2018). In a
termination hearing, an indigent parent has a right to counsel by statute,
A.R.S. § 8-221; by rule, Rule 38(B); and as a matter of due process, Daniel Y.
v. Ariz. Dep’t. of Econ. Sec., 206 Ariz. 257, 260, ¶ 14 (App. 2003) (holding a
parent’s right in juvenile matters is “not co-extensive with a criminal
defendant’s right . . . under the Sixth Amendment” but still has a
“constitutional dimension”). “[D]enial of the right to effective participation
of counsel” in a dependency proceeding “constitutes a denial of due process
of law so gross as to lack a necessary attribute of a judicial determination.”
Ariz. State Dep’t of Pub. Welfare v. Barlow, 80 Ariz. 249, 253 (1956). If a parent
is denied the right to counsel at a hearing, the order that results is “void.”
Id.
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¶32 Unlike previous termination cases in which courts have found
a denial of the right to counsel, Mother does not claim an absence of
counsel. See Bob H. v. Ariz. Dep’t of Econ. Sec., 225 Ariz. 279, 283, ¶ 18 (App.
2010) (juvenile court reversibly erred in commencing termination hearing
without mother’s counsel present); Christy A. v. Ariz. Dep’t of Econ. Sec., 217
Ariz. 299, 307, ¶ 29 (App. 2007) (juvenile court “should have briefly
continued the evidentiary hearing to allow mother’s counsel the
opportunity to appear and participate”). Instead, Mother asserts that
although she had representation, her ability to communicate with her
attorney and thereby assist in her defense was diminished. Because
Mother’s claims do not rise to the level of complete denial of her right to
effective participation of counsel, the order from the hearing is not void. See
Brenda D., 243 Ariz. at 446, ¶ 30 (distinguishing complete absence of counsel
from situation where counsel could still cross-examine and make objections
on behalf of parent who failed to appear). However, we still must analyze
whether any diminution in Mother’s ability to communicate with her
attorney violated Mother’s due process rights.
¶33 Courts may not terminate parental rights without affording
parents fundamentally fair procedures that satisfy due process. Kent K. v.
Bobby M., 210 Ariz. 279, 284, ¶ 24 (2005). Generally, due process requires
an “opportunity to be heard ‘at a meaningful time and in a meaningful
manner.’” Dep’t of Child Safety v. Beene, 235 Ariz. 300, 305, ¶ 11 (App. 2014)
(quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976)). Determining what
process is due requires analysis of four factors: (1) the “nature of the
proceedings,” (2) the “private interests at stake,” (3) the “interests of the
state,” and (4) the “risk that the procedures used will lead to erroneous
decisions.” Id.
¶34 As to the nature of the proceedings, termination hearings are
to be conducted informally. Id. at 306, ¶ 12; Ariz. R. P. Juv. Ct. 6. In
addition, these hearings generally must occur on a relatively strict timeline
to ensure permanency for the child involved. See Trisha A. v. Dep’t of Child
Safety, 247 Ariz. 84, 91, ¶ 30 (2019) (emphasizing importance of “timely
stability and permanency” for the child). Here, the joint hearing had been
delayed several months and a continuance until after COVID-19 restrictions
were lifted could have led to a longer delay. Concerning the private
interests at stake, parents have “a fundamental liberty interest in the care,
custody, and management of their children.” Kent K., 210 Ariz. at 284, ¶ 24.
Children also have interests that are entitled to protection, including the
right to “effective parental care.” Maricopa Cnty. Juv. Action No. JD-561, 131
Ariz. 25, 28 (1981). Regarding the interests of the state, not only does the
state have a compelling interest in protecting the welfare of children, Beene,
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235 Ariz. at 306, ¶ 13, it also bears a significant responsibility for public
health during the COVID-19 pandemic.
¶35 Finally, as to the risk that the procedures used will lead to
erroneous decisions, we look to the specific circumstances of the case,
including any procedural safeguards provided. See id. at 307, ¶¶ 17–18. As
noted in the criminal context, courts generally prefer in-person testimony
because it “ensures the reliability of the evidence by allowing the trier of
fact to observe the demeanor, nervousness, expressions, and other body
language of the witness,” conveys to the witness the seriousness of the
proceedings, and ensures the witness is not being coached or relying on
extraneous materials. State v. Moore, 203 Ariz. 515, 517, ¶ 7 (App. 2002)
(citation and quotation omitted). However, the circumstances of the
current global pandemic are not normal, and in-person hearings during the
height of the pandemic have created unique challenges. For example, such
hearings may require the use of social distancing and masks, which could
interfere with a fact-finder’s ability to judge a witness’s demeanor and facial
expressions. On the other hand, even when a court hears telephonic
testimony it may rely on other means to judge a witness’s credibility, such
as assessing the witness’s tone or inflection, and identifying inconsistencies
between the testimony and objective documentary evidence. See Anderson
v. City of Bessemer, 470 U.S. 564, 574–75 (1985).
¶36 In addition, in this case the juvenile court employed some
safeguards to protect Mother’s rights. For example, throughout the
hearing, the court periodically confirmed that the participants had not been
disconnected, inquired whether a witness was impermissibly reading from
a document, and accommodated technical difficulties. Indeed, as the
second day of the hearing began on April 28, no one expressed any concerns
to the court about continuing to conduct the hearing telephonically.
¶37 When an issue arose about the accuracy of certain exhibits,
the court took steps to ensure all parties were reviewing the same evidence.
Mother’s counsel expressed concern that she had not received an exhibit
log from DCS until shortly before the hearing and was unable to verify
whether the exhibits she had received in discovery matched those being
presented in court. DCS explained that Mother had received all required
discovery, with the exception of two documents DCS had received only
recently. The court arranged for a post-hearing period for counsel to review
the exhibits admitted into evidence and confirm they were in fact the same
exhibits that were previously disclosed, marked, and shown to parent’s
counsel. And the court advised the parties it would not take the matters
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Opinion of the Court
under advisement until after counsel had an opportunity to review and
make new objections to the exhibits.
¶38 Moreover, although Mother contends her counsel’s ability to
cross-examine witnesses and handle exhibits was adversely affected, she
does not explain what she or her counsel would have done differently if the
hearing had been in person or how it would have made a difference in the
outcome. See In re A.H., 950 N.W.2d 27, 37 (Iowa Ct. App. 2020) (denying a
parent’s due process challenge to a telephonic hearing, in part, because the
parent had not identified “any error or risk of error that occurred during
the hearing as a result of the telephonic procedures other than generally
‘questioning’ the ability of counsel to represent” her). Mother was
represented by counsel, testified, was able to hear the presentation of
evidence, and her counsel cross-examined the State’s witnesses. Mother
has not identified any defects or failures in the technology the court
employed, nor has she specified any instance when she wished to speak
with counsel privately and was denied the opportunity to do so, or how the
manner in which the hearing proceeded impaired her counsel’s ability to
cross-examine a witness or to offer other evidence. Based on the court’s
findings, DCS proved the grounds for termination by clear and convincing
evidence; Mother has not challenged any of those findings.
¶39 The juvenile court could have adopted additional safeguards
that might have been helpful in conducting a telephonic hearing. Giving
the parents “frequent breaks to consult privately by telephone with
counsel” might have alleviated some of the concerns Mother raises. See id.Ensuring the timely exchange/disclosure of exhibits, along with
anticipating how exhibits may be viewed during the hearing, would have
assisted the court and parties in avoiding the exhibit issue discussed above.
Additionally, a better alternative could be videoconferencing, assuming
reliable technology is available without unduly burdening the participants.
In any event, the juvenile court is in the best position to assess what
safeguards it should implement to ensure the rights of all parties are
protected when the court conducts any proceeding in which the
participants cannot be present in the courtroom.
¶40 After weighing the Eldridge factors, we conclude Mother was
afforded adequate due process in this case, as the relatively minimal risk of
error inherent in receiving testimony by telephone was remedied by
safeguards and outweighed by the significant risks presented by the
COVID-19 pandemic. The decision how to conduct a proceeding, especially
during a pandemic, is best left to the juvenile court. A court may evaluate
various factors when making that decision, including the fundamental right
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Opinion of the Court
to parent, the child’s best interests, the length of time a case has been
pending, the parents’ involvement (or lack thereof) in reunification
services, the expected length of the hearing, the number of witnesses who
will be testifying, whether the parties intend to object to exhibits, and the
extent to which the court will be relying on testimony or instead on
documentary evidence. See JD-561, 131 Ariz. at 27 (recognizing that
resolving questions of due process in juvenile cases requires courts to
“weigh and balance the competing interests” of the state, the parents, and
the children). Indeed, establishing a bright-line rule requiring in-person
testimony in all instances is unworkable, and in some instances might even
deprive a parent of due process if special circumstances would not allow a
parent to fully participate remotely, such as when a parent is incarcerated,
has a serious illness, or lives in another state or country. We conclude that
Mother’s right to due process was not violated.
2. Discretionary Decision
¶41 Mother also argues that even if her due process rights were
not infringed by the manner in which the hearing proceeded, the court
nonetheless abused its discretion by holding a telephonic hearing. We
review a court’s ruling on a discretionary matter for an abuse of discretion.
Adrian E. v. Ariz. Dep’t of Econ. Sec., 215 Ariz. 96, 101, ¶ 15 (App. 2007). Such
a ruling will be reversed only if it is “manifestly unreasonable, or exercised
on untenable grounds, or for untenable reasons.” Id.
¶42 The juvenile court has discretion to “permit telephonic
testimony . . . in any dependency . . . or termination of parental rights
hearings” on the court’s own motion or by motion of a party. Ariz. R. P.
Juv. Ct. 42. In the wake of the COVID-19 pandemic, the Arizona Supreme
Court extended even greater discretion to superior court judges to hold
telephonic hearings. See Ariz. Sup. Ct. Admin. Order No. 2020-47. The
court ordered that all in-person hearings must “be avoided to the greatest
extent possible consistent with core constitutional rights.” Id. To effect that
ruling, judges were encouraged to “us[e] available technologies, including
. . . teleconferencing.” Id. In a related order issued by the Maricopa County
Superior Court, the mandate was more specific: except for limited
exceptions, “no in-person proceeding[s]” would take place during April
2020, though the court would “continue to hold telephonic hearings.”
Maricopa Cnty. Sup. Ct. Amended Admin. Order No. 2020-055 (Apr. 1,
2020). Thus, these orders granted even more discretion to judges to hold
telephonic hearings to address public health concerns, and Mother does not
argue the orders are unconstitutional or otherwise invalid.
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Opinion of the Court
¶43 In denying Mother’s motion to continue the hearing, the
juvenile court recognized that the ongoing pandemic (with no foreseeable
end date) required the court to consider alternatives. We cannot say the
court abused its discretion in holding a telephonic hearing.
CONCLUSION
¶44 We affirm the juvenile court’s order granting DCS’s petitions
for dependency and termination.
AMY M. WOOD • Clerk of the Court
FILED: JT
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