Tzsiah E. 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
TZSIAH E., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, I.E., I.E., Appellees.
No. 1 CA-JV 17-0457
FILED 4-26-2018
Appeal from the Superior Court in Maricopa County
No. JD530003
The Honorable Colleen L. French, Judge Pro Tempore
AFFIRMED
COUNSEL
Maricopa County Office of the Public Advocate, Mesa
By Suzanne W. Sanchez
Counsel for Appellant
Arizona Attorney General’s Office, Phoenix
By Nicholas Chapman-Hushek
Counsel for Appellee Department of Child Safety
TZSIAH E. v. DCS, et al.
Decision of the Court
MEMORANDUM DECISION
Judge James P. Beene delivered the decision of the Court, in which
Presiding Judge Jon W. Thompson and Judge Peter B. Swann joined.
B E E N E, Judge:
¶1 Tzsiah E. (“Mother”) appeals the termination of her parental
rights to her two children, I.Z.M.E. (born in 2013) and I.Z.E. (born in 2015)
(collectively “the children”). For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Mother is the biological parent of the children. In May 2016,
the Department of Child Safety (“DCS”) filed a dependency petition
alleging Mother was unable to parent due to neglect, substance abuse, and
mental health issues.
¶3 During the pendency of the case, DCS provided Mother with
several services, including substance abuse testing and treatment, parent-
aide services after 30 days of demonstrated sobriety, a psychological
consultation, visitation, and transportation. During this time, Mother
tested positive for methamphetamine, cocaine, and benzodiazepines.
Mother missed multiple tests with TASC and several times was closed out
of another drug testing service due to lack of participation. Mother failed
to demonstrate 30 days of sobriety in order to begin her parent-aide
services.
¶4 In March 2017, DCS moved the superior court to terminate
Mother’s parental rights on grounds of substance abuse and six and nine
months’ out-of-home placement under Arizona Revised Statutes (“A.R.S.”)
sections 8-533(B)(3), (8)(a)-(b). In September 2017, the court held a
termination hearing in which Mother failed to appear. Mother’s counsel
informed the court that Mother was at home “waiting for transportation”
that had not arrived. DCS indicated that they had arranged for a taxi to
transport mother to her hearing, but Mother “was not there to be picked
up” at the designated time. Mother’s counsel inquired if the court would
allow Mother to appear telephonically, to which DCS objected. After
considering DCS’s objection, the court proceeded in Mother’s absence.
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TZSIAH E. v. DCS, et al.
Decision of the Court
¶5 After conducting the hearing in absentia, the court terminated
Mother’s parental rights on the grounds alleged in the petition and found
that severance would be in the children’s best interests. Mother filed a
motion for reconsideration, indicating that she would have presented a
meritorious defense had she been able to participate in her termination
hearing. The court denied the motion. Mother timely appealed. We have
jurisdiction pursuant to A.R.S. §§ 8-235, 12-120.21(A)(1) and -2101(A)(1).
DISCUSSION
I. Standard of Review
¶6 The right to parent one’s child is fundamental but not
absolute. Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 24 (2005). The superior
court may terminate parental rights if it finds, “by clear and convincing
evidence, at least one of the statutory grounds set out in section 8-533,” and
by a preponderance of the evidence that termination is in the best interests
of the child. Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 248-49, ¶ 12
(2000); Kent K., 210 Ariz. at 284, ¶ 22.
¶7 We review an order terminating parental rights for an abuse
of discretion and will not reverse unless there is no reasonable evidence to
support the order. Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 47,
¶ 8 (App. 2004). Because the superior court “is in the best position to weigh
the evidence, observe the parties, judge the credibility of witnesses, and
make appropriate findings,” we will accept its findings of fact unless no
reasonable evidence supports them. Jesus M. v. Ariz. Dep’t of Econ. Sec., 203
Ariz. 278, 280, ¶ 4 (App. 2002).
II. Abuse of Discretion
¶8 Mother does not challenge the superior court’s finding of
termination under A.R.S. §§ 8-533(B)(3), (8)(a)-(b). Mother instead argues
that the court abused its discretion and violated her due process rights
when it refused to permit her to participate telephonically in her
termination hearing. We review the court’s ruling on a discretionary
matter, such as refusing a parent’s request to appear telephonically, for a
clear abuse of discretion. Willie G. v. Ariz. Dep’t of Econ. Sec., 211 Ariz. 231,
234, ¶ 13 (App. 2005). We “will reverse only if the juvenile court’s exercise
of that discretion was manifestly unreasonable, or exercised on untenable
grounds, or for untenable reasons.” Adrian E. v. Ariz. Dep’t of Econ. Sec., 215
Ariz. 96, 101, ¶ 15 (App. 2007) (internal quotations and citation omitted).
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TZSIAH E. v. DCS, et al.
Decision of the Court
¶9 The superior court “may permit telephonic testimony . . . in
any dependency, guardianship or termination of parental rights hearings.”
Ariz. R.P. Juv. Ct. (“Rule”) 42. However, the court is not required to permit
telephonic appearances. See Willie G., 211 Ariz. at 234-35, ¶ 17 (finding that
the court did not abuse its discretion by refusing to allow parents to appear
telephonically). Under Rule 66(D)(2),
If the court finds the parent . . . failed to appear at the
termination adjudication hearing without good cause shown,
had notice of the hearing, was properly served . . . and 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 contained in the motion or petition for
termination, the court may terminate parental rights based
upon the record and evidence presented if the moving party
or petitioner has proven grounds upon which to terminate
parental rights.
¶10 Although the court is entitled to terminate the parent’s rights
if the parent is absent from his termination hearing, the court may set aside
a termination order if the parent shows good cause for his absence. Christy
A. v. Ariz. Dep’t of Econ. Sec., 217 Ariz. 299, 304, ¶ 16 (App. 2007); see Willie
G., 211 Ariz. at 234, ¶ 13 (“Determining what constitutes good cause for a
party’s failure to appear at a hearing is largely discretionary.”) (internal
quotations and citation omitted). “In order to show good cause, the moving
party must show that (1) mistake, inadvertence, surprise or excusable
neglect exists and (2) a meritorious defense to the claims exists.” Christy A.,
217 Ariz. at 304, ¶ 16. “In the context of a severance proceeding, we
consider a meritorious defense to constitute nothing more than a good faith
basis upon which to contend that . . . termination is not in the best interests
of the child.” Id. at 304, ¶ 15 n.11 (internal quotations omitted).
¶11 Here, Mother failed to show good cause for her failure to
appear. DCS ordered a cab for Mother to pick her up one hour and fifteen
minutes before her termination hearing, but Mother “was not there to be
picked up.” At the hearing, the superior court denied Mother’s request to
appear telephonically. The court determined that “[g]iven the fact that
mother is not here, and it appears that transportation was sent for her, and
she wasn’t present at the place where the transportation was sent, I’m going
to go ahead and proceed in her absence as to the severance.” Mother’s
failure to appear did not constitute either a “mistake, inadvertence,
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TZSIAH E. v. DCS, et al.
Decision of the Court
surprise, or excusable neglect” required to show good cause. Christy A., 217
Ariz. at 304, ¶ 16.
¶12 Mother claims she had a meritorious defense as to best
interests. In Mother’s motion for reconsideration, she argued that her
defense to the superior court’s best interests determination was that “she
has a good relationship with the children” and “feels that it would not be
in the best interest of the children to sever her parental rights.” However,
Mother’s proffered defense is belied by the facts in the record that indicate
Mother (1) continued either to abuse substances or failed to participate in
substance abuse testing, (2) failed to participate in reunification services,
and (3) infrequently attended visitations with the children. See Richas v.
Superior Court, 133 Ariz. 512, 517 (1982) (“A meritorious defense must be
established by facts and cannot be established through conclusions,
assumptions or affidavits based on other than personal knowledge.”).
Therefore, we find that Mother failed to show good cause for her failure to
appear and that the court did not abuse its discretion in denying Mother’s
request for telephonic appearance.
III. Due Process
¶13 Mother also argues that the superior court’s denial of her
request for a telephonic appearance violates her due process rights.
Whether a party is afforded proper due process presents a question of law
we review de novo. Jeff D. v. Dep’t of Child Safety, 239 Ariz. 205, 207, ¶ 6 (App.
2016) (citation omitted). “[A] parent has due process rights to be present,
to participate, and to testify in the termination adjudication hearing.”
Brenda D. v. Dep’t of Child Safety, 243 Ariz. 437, __, ¶ 23 (internal quotations
and citation omitted). However, when the parent is absent, “to comply with
due process principles, . . . the absent parent’s counsel has a 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. at __, ¶ 30.
¶14 The record reflects Mother’s counsel was present at and
participated in the termination hearing. Counsel cross-examined DCS’s
witness and was given the opportunity to comment on the admissibility of
evidence and present information and argument to the court. Therefore,
Mother participated in the hearing through her counsel and has not shown
any due process violation.
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TZSIAH E. v. DCS, et al.
Decision of the Court
IV. Best Interests
¶15 “Best interests” is a technical term that does not always carry
its broad colloquial meaning. It is unconstitutional “to force the breakup of
a natural family . . . without some showing of unfitness and for the sole
reason that to do so was thought to be in the children’s best interest.”
Quilloin v. Walcott, 434 U.S. 246, 255 (1978). Indeed, “[t]he State’s interest in
finding the child an alternative permanent home arises only when it is clear
that the natural parent cannot or will not provide a normal family home for
the child.” Santosky v. Kramer, 455 U.S. 745, 767 (1982) (internal quotation
and citation omitted).
¶16 While the severance-ground inquiry focuses on the parent,
the best-interests inquiry primarily focuses on the child. See Demetrius L. v.
Joshlynn F., 239 Ariz. 1, 4, ¶ 15 (2016); Kent K., 210 Ariz. at 287, ¶ 38. Best
interests is a fact-specific, case-by-case determination in which the court
balances a parent’s interest in maintaining a relationship with his or her
child (diluted by the existence of a severance ground) against the child’s
interest in a safe and stable home life. Demetrius L., 239 Ariz. at 4, ¶ 15; Kent
K., 210 Ariz. at 286, ¶ 35. Though severance grounds usually have a
negative impact on the child, the existence of a ground is not itself a basis
for an adverse best-interests finding—something more is required. See
Maricopa Cty. Juvenile Action No. JS-500274, 167 Ariz. 1, 5 (1990). Severance
must affirmatively benefit the child or eliminate a detriment of the parental
relationship. Dominique M. v. Dep’t of Child Safety, 240 Ariz. 96, 98, ¶ 8 (App.
2016).
¶17 Mother argues that the superior court abused its discretion
and failed to make a valid best-interests determination because it was not
supported by sufficient findings of fact. She argues that the court’s only
best-interests findings were that (1) the children are adoptable; (2) their
placements are meeting their needs; and (3) they would gain permanency
and stability through severance, which she contends is “insufficient to
support a best-interests determination” under Alma S. v. Dep’t of Child
Safety, 778 Ariz. Adv. Rep. 24 (App. Nov. 14, 2017).
¶18 Here, the superior court’s finding that severance was in the
children’s best interests is supported by a preponderance of the evidence.
The court found that DCS proved by clear and convincing evidence the
basis for termination as to Mother. This evidence included testimony from
the DCS case manager that Mother “left [the children] in the care of an
individual who was unable to properly care for them, including providing
for their basic needs[;]” “had tested positive . . . for methamphetamine,
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TZSIAH E. v. DCS, et al.
Decision of the Court
cocaine, and benzos” and missed multiple substance abuse tests; had not
“demonstrated any semblance of sobriety” by the time of the hearing; and
“was inconsistent in her visits” with the children.
¶19 The DCS case manager further testified that severance and
adoption would be in the children’s best interests because it would provide
them “with a stable home that is free from substance abuse and neglect, that
will allow . . . them to grow and have their basic needs met.” She also
testified that the children are currently placed together in an adoptive
placement that is meeting their needs and in which they and the placement
have bonded. Specifically, the placement is meeting I.Z.M.E.’s special
needs, namely his food allergies, as well as “several ear infections that have
resulted in tubes being placed in his ears.” Because reasonable evidence
supports the court’s findings that termination was in the children’s best
interests, we affirm. See Mary Lou C., 207 Ariz. at 47, ¶ 8.
CONCLUSION
¶20 Accordingly, we affirm the superior court’s termination of
Mother’s parental rights to the children.
AMY M. WOOD • Clerk of the Court
FILED: AA
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