Trisha A. v. Department of Child safety/l.A./l.A.

IN THE
SUPREME COURT OF THE STATE OF ARIZONA
TRISHA A.,
Appellant,
v.
DEPARTMENT OF CHILD SAFETY, L.A., L.A.,
Appellees.
No. CV-18-0178-PR
Filed August 15, 2019
Appeal from the Superior Court in Maricopa County
The Honorable Arthur T. Anderson, Judge
No. JD529230
AFFIRMED
Opinion of the Court of Appeals, Division One
245 Ariz. 24 (App. 2018)
VACATED
COUNSEL:
Sabrina Ayers Fisher, Maricopa County Public Advocate, Suzanne M. Nicholls
(argued), Deputy Public Advocate, Mesa, Attorneys for Trisha A.
Mark Brnovich, Arizona Attorney General, O.H. Skinner, Solicitor General, Brunn W.
Roysden III, Division Chief Counsel, Appeals and Constitutional Litigation Division,
JoAnn Falgout (argued), Assistant Attorney General, Phoenix, Attorneys for
Department of Child Safety
TRISHA A. V. DCS/L.A./L.A.
Opinion of the Court
JUSTICE LOPEZ authored the opinion of the Court, in which CHIEF JUSTICE
BRUTINEL, VICE CHIEF JUSTICE TIMMER, and JUSTICES GOULD, BALES (RETIRED),
and PELANDER (RETIRED) joined. JUSTICE BOLICK dissented.
JUSTICE LOPEZ, opinion of the Court:
¶1 We consider whether a parent must provide evidence of a “meritorious
defense” to succeed on a Rule 46(E) motion to set aside a severance judgment following
a Rule 64(C) acceleration of a final adjudication as a result of a missed initial hearing,
pretrial conference, or status conference. See Ariz. R.P. Juv. Ct. 46(E) , 64(C). We hold
Rule 46(E) requires evidence of a meritorious defense.
I.
¶2 Trisha A. (“Mother”) is the mother of two minor children. On September 9,
2015, Mother was hospitalized for substance abuse treatment for heroin and
methamphetamine use. Four days later, Mother left the hospital against medical advice
without completing the treatment program. That day, the Department of Child Safety
(“DCS”) took custody of her two children, placed them with their maternal grandmother,
and filed a dependency action, alleging the children were dependent due to Mother’s
substance abuse and neglect. On September 22, over Mother’s objection, the juvenile
court found the children dependent.
¶3 Over the next eleven months, DCS offered Mother services to help her achieve
sobriety and to reunify her with her children, including substance abuse testing and
treatment, parent-aide services, and visitation with the children. However, Mother
shunned the substance abuse testing and treatment, failed to achieve sobriety, missed
most of the parent-aide sessions and many visits with her children, and failed to maintain
contact with the DCS case manager.
¶4 On August 3, 2016, nearly a year after the dependency determination, DCS
filed a petition to sever Mother’s parental rights on the grounds of abandonment,
substance abuse, and out-of-home placement. See A.R.S. § 8-533(B)(1), (3), (8)(a). As part
of the proceedings, Mother received and signed a “Notice of Parental Termination
Action,” notifying her that failure to appear at certain proceedings could result in the
court finding she had waived her legal rights and admitted the grounds against her and
proceeding in her absence with a final termination adjudication hearing.
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Opinion of the Court
¶5 Mother appeared at her initial severance hearing and initial mediation but,
despite notice, failed to appear for a combined report and review status hearing and
pretrial conference set for January 18, 2017 (the “January hearing”). Mother’s attorney
told the juvenile court he had informed Mother of the January hearing and he did not
know why she had not appeared. Because Mother’s attorney presented no good cause
for Mother’s absence, and pursuant to DCS’s request, the court proceeded to an
accelerated severance hearing under Rule 64(C).
¶6 At the accelerated severance hearing, the DCS case manager testified that
Mother had only sporadic contact with the children during the sixteen-month
dependency, was unable to maintain a normal parental relationship with them, and failed
to provide them with food and shelter. The case manager also opined that Mother was
unable to discharge her parental duties due to substance abuse and her inability to
maintain sobriety. Based on this testimony and the record in the case, the court found
the three severance grounds proven by clear and convincing evidence and, by a
preponderance of the evidence, that termination was in the children’s best interests.
¶7 Nine days later, Mother moved to set aside the severance judgment pursuant
to Rule 46(E), arguing that she failed to appear at the January hearing because she had
been admitted that same day to an in-patient drug treatment program (“Lifewell”).
Without giving DCS an opportunity to respond, the juvenile court granted Mother’s
motion to set aside the severance judgment due to her physical inability to attend the
January hearing.
¶8 DCS objected to Mother’s motion and filed a motion to have the court
reconsider its order setting aside the severance judgment, arguing that she failed to notify
her counsel or the court of her intended admission to Lifewell; she had refused to
participate in drug treatment for more than a year and waited until the day of the pretrial
conference to do so; and she checked out of Lifewell only four days after admission and
did not complete the program. DCS also urged the court to deny Mother’s motion
because she failed to assert any meritorious defense to the underlying severance action.
The court set a February 23 status hearing to consider whether to “set aside the set-aside”
of the severance (the “February hearing”).
¶9 Mother also failed to appear at the February hearing. DCS argued that Mother
failed to establish good cause for her nonappearance at the January hearing because her
Lifewell admission form indicated that she was admitted at noon on January 18—an hour
and a half after the time the January hearing had been scheduled—and that Mother left
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Opinion of the Court
four days after admittance, against medical advice. The children’s guardian ad litem
argued Mother failed to notify her counsel or the court that she could not attend the
January hearing. In response, Mother’s counsel argued that the Lifewell admission form
did not indicate Mother’s check-in time and that Mother had emailed him on February
19, stating that she had been in jail and the hospital since January 8. The court reinstated
its January severance order finding Mother failed to establish good cause for her absence.
Mother appealed, arguing only that the juvenile court erroneously reinstated its
severance judgment.
¶10 On appeal, the court of appeals ordered supplemental briefing regarding
(1) whether Rule 64(C) violates due process; (2) whether the court should reconsider
Christy A. v. Arizona Department of Economic Security, 217 Ariz. 299 (App. 2007); and
(3) whether, to the extent Christy A. remains controlling law, a meritorious defense is
required to set aside Rule 64(C) accelerated hearing judgments. At DCS’s request, the
court of appeals stayed the appeal pending this Court’s decision in Brenda D. v.
Department of Child Safety, 243 Ariz. 437 (2018). Trisha A. v. Dep’t of Child Safety, 245 Ariz.
24, 29 ¶ 10 (App. 2018).
¶11 After supplemental briefing and Brenda D.’s issuance, the court of appeals
vacated the juvenile court’s severance order, holding that requiring a meritorious defense
to set aside a Rule 64(C) accelerated hearing judgment violated Mother’s right to due
process. Id. at 27 ¶ 1, 35 ¶¶ 33–34. The court reasoned that the meritorious defense
requirement, as recognized in Christy A., should apply only to Rule 66(D)(2) cases
involving missed final termination hearings rather than to Rule 64(C) cases involving
missed pre-final termination proceedings. Id. at 32–34 ¶¶ 22–28.
¶12 We granted review because the standard concerning a Rule 46(E) motion to set
aside a severance order following a Rule 64(C) accelerated severance hearing presents a
recurring issue of statewide importance. We have jurisdiction pursuant to article 6,
section 5(3) of the Arizona Constitution.
II.
¶13 As a preliminary matter, we do not consider the constitutionality of Rule 64(C)
accelerated severance hearings because Mother did not raise the issue on appeal, and we
presume that such hearings are constitutional. See State ex rel. Brnovich v. City of Tucson,
242 Ariz. 588, 599–600 ¶ 45 (2017) (“We generally do not reach out to decide important
constitutional issues or to upset established precedent when no party has raised or
argued such issues.”); Gallardo v. State, 236 Ariz. 84, 87 ¶ 9 (2014) (noting that we
“presume that the legislature acts constitutionally” (internal quotation marks omitted)).
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Opinion of the Court
Although the dissent addresses the constitutionality of Rule 64(C) accelerated severances,
infra ¶¶ 33–48, we are not persuaded to depart from our customary approach to refrain
from addressing constitutional issues that are not raised by the parties.
¶14 We note, however, that even if a juvenile court proceeds with an accelerated
severance hearing following a parent’s waiver of rights under Rule 64(C), DCS must still
prove, by clear and convincing evidence, the underlying statutory severance ground and,
by a preponderance of the evidence, that severance is in the child’s best interest. See, e.g.,
§ 8-533; Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 248–49 ¶ 12 (2000). Moreover,
in certain circumstances, parents are allowed at least six months, or as many as fifteen
months, to resolve issues before DCS files a motion to sever parental rights. See § 8-
533(B)(8)(a)–(c). We also emphasize, as we did in Brenda D., that juvenile courts’
authority to accelerate termination hearings under Rule 64(C) is discretionary. 243 Ariz.
at 448 ¶ 40. When exercising this discretion, courts should consider a parent’s willingness
to participate in the case, including availing themselves of services intended to remedy
the issues leading to dependency, and the stage of the process.
¶15 We consider only whether the meritorious defense requirement infringes a
parent’s due process rights in the context of a Rule 46(E) motion to set aside a severance
judgment entered after a Rule 64(C) accelerated hearing. We note, however, that the
juvenile court did not consider, much less impose, a meritorious defense requirement on
Mother; rather, the court reinstated the severance order because Mother failed to show
good cause for her nonappearance at the January hearing. But because the court of
appeals sua sponte raised the meritorious defense issue, and the issue is a recurring one
of statewide importance and is fully briefed, we exercise our discretion to review it. See
Marianne N. v. Dep't of Child Safety, 243 Ariz. 53, 56 ¶ 13 (2017); Jimenez v. Sears, Roebuck &
Co., 183 Ariz. 399, 406 n.9 (1995).
III.
¶16 We review de novo whether requiring parents to show a meritorious defense
to set aside a judgment entered after a Rule 64(C) accelerated severance procedure
violates parents’ rights to due process. See Brenda D., 243 Ariz. at 442 ¶ 15 (noting
constitutional claims are reviewed de novo).
A.
¶17 Rule 64(C) (which applies to initial hearings, pretrial conferences, status
conferences, or termination adjudication hearings), Rule 65(C) (which applies to the
initial termination hearings), and Rule 66(D)(2) (which applies to final severance
hearings) establish the procedures if a parent fails to appear without “good cause.” The
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Opinion of the Court
court of appeals reasoned that the “good cause“ standard varies between Rules 64(C),
65(C), and 66(D)(2) because the “procedures and rights at stake in these rules are
distinctly different.” Trisha A., 245 Ariz. at 30 ¶ 14. But the standard for good cause under
these rules should be consistent because the language of these rules is identical or
substantially similar, and Rule 64(C) pertains to all types of hearings, including initial
hearings, pretrial and status conferences, and termination adjudication hearings. See
Antonin Scalia & Bryan A. Garner, Reading Law 170 (2012) (explaining under the
presumption of consistent usage canon that “[a] word or phrase is presumed to bear the
same meaning throughout a text”). Notably, in Marianne N. v. Department of Child Safety,
we observed that, upon acceleration, the termination hearing becomes a severance
hearing under A.R.S. § 8-863. 243 Ariz. at 58 ¶ 22 (“When the juvenile court ‘go[es]
forward’ [under Rule 64(C)] with the adjudication termination hearing in the parent’s
absence, it can proceed as contemplated by § 8-863(C) . . . .” (first alteration in original)).
Consequently, we reject the court of appeals’ conclusion that the “good cause” standard
varies between these rules.
¶18 Rule 46(E), which governs motions in juvenile court to set aside judgments in
dependency, guardianship, and terminations of parental rights, expressly requires that a
motion to set aside a juvenile court’s judgment conform to the requirements of Arizona
Rule of Civil Procedure 60(b)–(d). See Ariz. R.P. Juv. Ct. 46(E). Arizona Rule of Civil
Procedure 60(b) (“Civil Rule 60(b)”), in turn, sets forth the requirements for relief from
civil judgments and orders, namely, six grounds a party can rely upon to set aside a
judgment. Although Civil Rule 60(b) does not expressly include a meritorious defense
requirement, we have interpreted the rule (and its antecedents) since territorial times to
require a party seeking to set aside a judgment to also prove a meritorious defense. See,
e.g., Gonzalez v. Nguyen, 243 Ariz. 531, 534 ¶ 12 (2018) (“[W]e have consistently bounded
a trial court’s discretion under [Civil Rule 60(b)(6)] by requiring a defendant to assert a
meritorious defense.”); Daou v. Harris, 139 Ariz. 353, 358–59 (1984) (stating that Civil Rule
60(b) requires a showing of a meritorious defense); Hirsch v. Nat’l Van Lines, Inc., 136 Ariz.
304, 309 (1983) (requiring a meritorious defense when alleging excusable neglect under
Civil Rule 60(b)(1)); DeHoney v. Hernandez, 122 Ariz. 367, 371 (1979) (same); Copper King
of Ariz. v. Johnson, 9 Ariz. 67, 71–72 (1904) (noting that it is a “well-settled requirement[]
of law” that a motion to set aside a judgment be supported by a meritorious defense “in
order that injustice may not be done in granting a new trial where no valid cause of action
or defense exists”). Thus, Rule 46(E), by reference to Civil Rule 60(b) and as interpreted
by this Court, includes a meritorious defense requirement.
¶19 Consistent with Rule 46(E) and the caselaw governing Civil Rule 60(b), Christy
A. held that a parent who fails to appear at a final severance hearing must show “good
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Opinion of the Court
cause” for the nonappearance and a meritorious defense to the severance grounds to set
aside a “default” judgment entered under Rule 66(D)(2). 217 Ariz. at 304 ¶ 16. Here, the
court of appeals expressly declined to extend Christy A.’s holding to judgments entered
after a hearing accelerated under Rule 64(C). Trisha A., 245 Ariz. at 32 ¶ 22. The
meritorious defense requirement does not arise from Christy A., but rather from Rule
46(E)’s express incorporation of Civil Rule 60(b)’s requirements and the longstanding
caselaw interpreting it. In sum, a parent seeking to set aside a severance judgment
entered after failing to appear at the final severance hearing—including one accelerated
by Rule 64(C)—must show “good cause” for the nonappearance and a meritorious
defense.
B.
¶20 The court of appeals also seemingly conflated “good cause” under Rules 64(C),
65(C)(6)(c), and 66(D)(2) with the “good cause” required to set aside a severance
judgment under Rule 46(E). But the “good cause” required under Rules 64(C),
65(C)(6)(c), and 66(D)(2) differs from that required under Rule 46(E) because the rules
operate in different contexts.
¶21 A showing of “good cause” under Rules 64(C), 65(C)(6)(c), and 66(D)(2) does
not include a meritorious defense requirement because the “good cause” inquiry centers
on the justification for nonappearance at a hearing and necessarily precedes a final
severance judgment. See Brenda D., 243 Ariz. at 444 ¶ 23 (“[T]o avoid due process
concerns, a juvenile court’s discretionary finding of waiver based on a parent’s failure to
appear for a termination adjudication hearing should be made at the start of the hearing,
before the proceeding commences.”). Thus, parents who appear before the end of a
hearing, as in Brenda D., are not required to show a meritorious defense because they are
not seeking to set aside a judgment but rather to establish good cause for their late
appearance to avoid waiver of their rights occurring prior to their appearance. See id.
at 448 ¶ 41 (noting that “[i]f . . . the parent does appear late but during the hearing, the
juvenile court should immediately halt the proceedings to determine whether the parent
can show ‘good cause’ for his or her late arrival under Rule 66(D)(2)”).
¶22 Rule 46(E), by contrast, governs the standard for setting aside judgments,
including those resulting from hearings under Rules 64(C), 65(C)(6)(c), and 66(D)(2), in
dependency, guardianship, and terminations of parental rights. As such, Rule 46(E)
informs the court’s decision whether to set aside a severance order as a final judgment.
See Ariz. R.P. Juv. Ct. 46(E) (citing Ariz. R. Civ. P. 60(c)(2) (stating that a motion to set
aside a judgment “does not affect the judgment’s finality or suspend its operation”)). At
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Opinion of the Court
this procedural stage, a parent must provide “good cause” for their nonappearance and
prove a meritorious defense. A parent must show a meritorious defense under Rule 46(E)
because the motion to set aside seeks to overcome the presumptively valid judgment’s
finality. The purpose of this requirement is manifest—a child who has been abused or
neglected requires permanency and stability, and a severance judgment should not be
disturbed without a legitimate basis.
¶23 The dissent contends that the majority errs in “import[ing]” the meritorious
defense requirement into Rule 46(E) because Civil Rule 60(b) does not expressly require
the meritorious defense, it “makes considerably less sense” in the parental-rights context,
and a Rule 64(C) severance judgment, unlike a civil default judgment, lacks finality unless
a parent fails to show good cause for nonappearance at a hearing. Infra ¶¶ 49–60. We
disagree for several reasons. First, Rule 46(E)’s incorporation of Civil Rule 60(b)’s
“requirements” is unqualified and, as noted, supra ¶ 18, this Court has interpreted Civil
Rule 60(b) to require a meritorious defense since territorial times, well before Rule 46(E)
incorporated its standards. Second, the rationale for requiring a party to articulate a valid
justification before setting aside a final judgment—whether a civil litigant or a parent in
a parental-rights action—applies with equal force because it implicates finality interests.
Finally, Rule 46(E)’s incorporation of Civil Rule 60(c)(2), which provides that a motion to
set aside a judgment “does not affect the judgment’s finality or suspend its operation,”
belies the notion that the finality of a Rule 64(C) and a civil default judgment differ.
C.
¶24 Having established Rule 46(E)’s meritorious defense requirement and its
applicable standards, we turn to the court of appeals’ holding that the requirement, as
applied to a motion to set aside a severance order entered after a final hearing accelerated
by Rule 64(C), necessarily infringes a parent’s due process right to a fundamentally fair
proceeding under Mathews v. Eldridge, 424 U.S. 319 (1976), and Lassiter v. Department of
Social Services, 452 U.S. 18 (1981). Trisha A., 245 Ariz. at 33–34 ¶¶ 24–28. We hold that the
meritorious defense requirement does not violate parents’ due process rights.
¶25 “Parents possess a fundamental liberty interest in the care, custody, and
management of their children,” but “parental rights are not absolute,” and “[a] court may
order severance of 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 requirements.” Kent K. v. Bobby M., 210 Ariz. 279, 284 ¶ 24 (2005)
(quoting Santosky v. Kramer, 455 U.S. 745, 753–54 (1982)). To determine whether a parent
received a fundamentally fair proceeding, we consider and balance the parent’s affected
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Opinion of the Court
interest, the risk of erroneous deprivation of the parent’s interest, and the state’s interest.
See Mathews, 424 U.S. at 335.
¶26 As a prerequisite to setting aside a judgment or order, the meritorious defense
requirement presents a minimal burden, “requiring only ‘some legal justification for the
exercise of the power, some substantial evidence to support it.’” Gonzalez, 243 Ariz. at 534
¶ 12 (quoting Richas v. Superior Court, 133 Ariz. 512, 514 (1982)). Stated differently,
proving a meritorious defense requires no more than showing a “substantial defense to
the action,” Richas, 133 Ariz. at 517 (quoting Union Oil Co. of Cal. v. Hudson Oil Co., 131
Ariz. 285, 289 (1982)), that is not “facially unmeritorious,” Emcasco Ins. v. Sambrick, 834
F.2d 71, 74 (3d Cir. 1987) (quoting Gross v. Stereo Component Sys., Inc., 700 F.2d 120, 123
(3d Cir. 1983)).
¶27 The Rule 46(E) meritorious defense requirement does not violate a parent’s
rights under Mathews. First, although the requirement implicates a parent’s interest at
stake under the first Mathews factor—the care, custody, and management of the child—it
applies only after parental rights have been severed. In other words, contrary to the
dissent’s contention that we must take a “holistic view” of the entire termination process,
including Rule 64(C), to determine the constitutionality of the meritorious defense
requirement, infra ¶ 63, Rule 46(E)’s discretionary relief is separate from the due process
rights afforded in the underlying severance proceedings. Cf. Ramos-Portillo v. Barr, 919
F.3d 955, 963 (5th Cir. 2019) (holding that, in the context of denying a motion to reopen
an immigration appeal, the “denial of discretionary relief does not rise to the level of a
constitutional violation even if [the moving party] had been eligible for it” (alteration in
original) (quoting Altamirano-Lopez v. Gonzales, 435 F.3d 547, 550 (5th Cir. 2006))). This
conclusion is bolstered by the fact that, unlike constitutional claims, we review the denial
of a motion to set aside a judgment for abuse of discretion. Gonzalez, 243 Ariz. at 533 ¶ 8;
see also id. at 534 ¶ 11 (noting that Civil Rule 60(b)(1) invests “extensive discretion in trial
courts”). Thus, the meritorious defense requirement’s minimal burden placed upon a
parent’s Rule 46(E) discretionary relief following an otherwise constitutional severance
of parental rights does not infringe her due process rights. Cf. Peralta v. Heights Med. Ctr.,
Inc., 485 U.S. 80, 86–87 (1988) (holding that the meritorious defense requirement was not
required to support a motion to set aside a default judgment because the movant’s due
process rights were violated by lack of notice of the underlying suit).
¶28 The meritorious defense requirement does not evince a heightened risk of an
erroneous deprivation of a parent’s rights under the second Mathews factor. The court of
appeals concluded, however, that the requirement presents a significant risk of an
erroneous severance of parental rights because, at a Rule 64(C) accelerated severance
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Opinion of the Court
hearing, the parent’s attorney may be ill-prepared to present the parent’s defense and the
parent may be deprived of an opportunity to remedy the issue that led to the dependency.
Trisha A., 245 Ariz. at 33–34 ¶¶ 26–27. But this observation, like the dissent, conflates
perceived due process risks associated with an accelerated severance hearing—an
attorney’s time to prepare a defense and the parent’s opportunity to remedy parenting
deficiencies (an issue not before this Court)—with whether the meritorious defense
requirement for setting aside a judgment facially comports with due process.
¶29 As noted, supra ¶ 26, the meritorious defense requirement on a motion to set
aside a judgment does not present an insurmountable hurdle but rather only a “minimal”
burden. Gonzalez, 243 Ariz. at 534 ¶ 12 (quoting United States v. Aguilar, 782 F.3d 1101,
1108 (9th Cir. 2015)). In fact, to satisfy this requirement, the parent would have to
demonstrate no more than a substantial, facially meritorious defense to the proven
severance ground. See Richas, 133 Ariz. at 517. An attorney at all familiar with a parent’s
case could, within three months after severance, articulate a meritorious defense if one
exists. See Ariz. R.P. Juv. Ct. 46(E) (providing that a moving party alleging grounds
pursuant to Civil Rule 60(b)(1)–(3) must file a motion to set aside within three months of
the final judgment). Further, an accelerated severance hearing would not unfairly
deprive a parent of an opportunity to remedy the issues that led to the dependency
because, as noted, supra ¶ 14, in some circumstances the parent would have had between
six to fifteen months to remedy such issues prior to a severance proceeding. In any event,
the meritorious defense requirement has no bearing on the parent’s pre-severance
rehabilitation because it applies only after entry of a severance judgment. We are not
convinced that the meritorious defense requirement presents a constitutionally
impermissible heightened risk of an erroneous deprivation of parental rights.
¶30 The third Mathews factor—the state’s interest in protecting children from harm
and providing them with timely stability and permanency through the orderly
adjudication and finality in Rule 64(C) accelerated hearings—militates in favor of
maintaining the meritorious defense requirement. The requirement balances the parties’
rights and children’s interests, including a child’s need for timely permanency.
Moreover, once a court finds grounds for termination of parental rights, the interests of
the child and the parent diverge, which is why the children in this case were assigned a
guardian ad litem. See Demetrius L. v. Joshlynn F., 239 Ariz. 1, 4 ¶ 15 (2016); see generally
supra ¶ 9. Requiring a parent whose rights have been severed by constitutionally
permissible procedures to demonstrate good cause for a nonappearance and a non-
frivolous substantial defense as a condition for setting aside a severance order does not
impose an undue burden on the parent. This is especially so when the meritorious
defense requirement’s “minimal burden” is juxtaposed with the state’s and children’s
important interest in a timely and final resolution of termination proceedings.
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Opinion of the Court
IV.
¶31 Requiring a meritorious defense in a Rule 46(E) motion to set aside a severance
judgment following a Rule 64(C) accelerated hearing does not violate due process, and it
also did not result in the severance of parental rights here. Mother failed for sixteen
months after the dependency to meaningfully communicate with her children, to provide
for their needs, or to make meaningful efforts to achieve sobriety. Further, despite notice,
she failed to appear, without good cause, at her final January pretrial conference and at a
February hearing scheduled to determine whether to set aside severance of her parental
rights as a result of her nonappearance at the January hearing. Mother’s choices and
actions and inaction over a year and a half, not the requirement that she show a
meritorious defense to set aside the severance judgment, led to severance of her parental
rights.
¶32 On this record, the juvenile court did not abuse its discretion by finding that
Mother failed to show good cause for her nonappearance at the January hearing and,
even if the juvenile court had applied the meritorious defense requirement to her Rule
46(E) motion, Mother did not identify a non-frivolous defense to the severance grounds
resulting in the loss of her parental rights. Accordingly, we affirm the juvenile court’s
severance order and vacate the court of appeals’ opinion.
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JUSTICE BOLICK, Dissenting
BOLICK, J., dissenting.
¶33 Twenty-five minutes. That is how quickly the State of Arizona can
permanently dissolve a parent’s legal relationship with her children. Not only after a full
and fair evidentiary hearing intended and designed for that purpose, but, as here, during
a routine status conference hastily converted into a final termination proceeding. Such a
truncated proceeding and its consequences are intolerable in a free society that values the
family relationship and guarantees due process of law. Because our law, properly
construed, provides that a parent need only show good cause for her absence from a
hearing in order to set aside the judgment in such circumstances, I respectfully dissent.
I.
¶34 A hallmark of the rule of law is that our courts provide a level playing field
for every individual. See, e.g., Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 28 (1981) (“[O]ur
adversary system presupposes . . . [that] accurate and just results are most likely to be
obtained through the equal contest of opposed interests . . . .”). But in Arizona, a parent
against whom the state has initiated termination proceedings faces nearly
insurmountable obstacles that are largely the result of a draconian statute rendered more
oppressive by this Court’s rules and decisions. Viewed in isolation, today’s decision
appears to impose only a modest additional burden on a parent seeking to preserve her
rights. But in the aggregate, our termination of parental rights process strays far from
essential constitutional requirements.
¶35 The right of parents to direct and control the upbringing of their children is
one of America’s foundational constitutional principles. See, e.g., Troxel v. Granville, 530
U.S. 57, 65 (2000) (plurality opinion) (“[T]he interest of parents in the care, custody, and
control of their children . . . is perhaps the oldest of the fundamental liberty interests
recognized by this Court.”); Wisconsin v. Yoder, 406 U.S. 205, 213–14 (1972); Pierce v. Soc’y
of Sisters, 268 U.S. 510, 534–35 (1925); Meyer v. Nebraska, 262 U.S. 390, 399–402 (1923).
¶36 Our state’s elected representatives enshrined those rights in statute as well.
Section 1-601(A) establishes that “[t]he liberty of parents to direct the upbringing . . . of
their children is a fundamental right.” Section 1-601(B) provides that the state “shall not
infringe on these rights without demonstrating that the compelling governmental
interest . . . is of the highest order, is narrowly tailored and is not otherwise served by a
less restrictive means.”
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JUSTICE BOLICK, Dissenting
¶37 Those rights are at their apex when the government moves to sever the
parental relationship. The United States Supreme Court has recognized that “[w]hen the
State initiates a parental rights termination proceeding, it seeks not merely to infringe
that fundamental liberty interest, but to end it.” Santosky v. Kramer, 455 U.S. 745, 759
(1982). Because “[f]ew forms of state action are both so severe and so irreversible,” id.,the Constitution demands that when the government seeks to dissolve parental rights,
“it must provide the parents with fundamentally fair procedures,” id. at 753–54.
¶38 Such procedures are especially essential given that, even in the best of
circumstances, “[t]he [s]tate’s ability to assemble its case almost inevitably dwarfs the
parents’ ability to mount a defense,” in light of the state’s resources, expertise, and
investigative powers; given the fact that the state’s own experts and caseworkers
typically comprise the main witnesses; and because the child is in agency custody. Id. at
763–64. Arizona’s current termination procedures do not provide adequate due process
protections.
¶39 Sections 8-531 through 8-544 establish procedures for a petition to terminate
parental rights. Section 8-537(C) sets forth the consequences for a parent’s failure to
appear at any of the judicial proceedings involved in the process:
If a parent does not appear at the pretrial conference, status
conference or termination adjudication hearing, the court,
after determining that the parent has been instructed as
provided in § 8-535, may find that the parent has waived the
parent’s legal rights and is deemed to have admitted the
allegations of the petition by the failure to appear. The court
may terminate the parent-child relationship as to a parent
who does not appear based on the record and evidence
presented as provided in rules prescribed by the supreme
court.
¶40 This statute, the constitutionality of which we have never considered, is
remarkable in two major respects. First, it implicitly requires the parent to appear not
just at the final adjudication hearing where her rights will be determined, and not just at
hearings where her presence may be beneficial or necessary, but at every court
proceeding, no matter how routine, including status conferences. I know of no other area
of law, including criminal law, in which parties are required to attend all such
proceedings. Second, the consequences of failing to appear at even a minor hearing can
be catastrophic: the parent may be deemed to have waived all her rights and admitted
the allegations in the severance petition, and it allows the court to sever parental rights
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TRISHA A. V. DCS/L.A./L.A.
JUSTICE BOLICK, Dissenting
well before the scheduled final termination hearing. Again, I cannot think of a single
instance elsewhere in the law in which failure to appear at a court hearing can lead to
such dire consequences. The fact that the parent has notice that these consequences may
occur if she fails to appear at a hearing cannot and does not license such a sweeping
deprivation of fundamental rights. Transporting such a regime to the criminal law
context would be unthinkable, and it should be equally so here, where the outcome is so
drastic a deprivation of liberty.
¶41 The statutory command that the parent attend every hearing or risk
termination of her parental rights is especially untenable given that the individuals
involved may lack essential resources such as transportation, may be trying to hold a job,
and may be involved in rehabilitation services. See Melissa T. v. Dep’t of Child Safety, No.
1 CA-JV 18-0352, 2019 WL 439305, at *1 ¶¶ 1–4 (Ariz. App. Feb. 5, 2019) (mem. decision);
see also Lassiter, 452 U.S. at 30. Those circumstances do not lend themselves to ready
availability for frequent and routine court hearings. Yet as a majority of this Court has
held, a parent can have her rights terminated if she misses even one such hearing out of
more than a dozen. See Marianne N. v. Dep’t of Child Safety, 243 Ariz. 53, 59 ¶ 33 (2017)
(Eckerstrom, J., dissenting) (noting a parent may have her rights “defaulted” under a
related statute even after attending fourteen hearings and attempting to call into a pretrial
conference). And termination can occur very quickly once the process has commenced.
See Melissa T., 2019 WL 439305, at *1 ¶¶ 1–4 (affirming termination of mother’s parental
rights in an accelerated hearing two months after removal of child from mother’s home
despite attorney’s assertion that mother could not attend the hearing because she had
relocated and was working).
¶42 The Court’s implementing rule, in turn, provides for notice that a parent’s
failure to appear at a hearing or conference “without good cause” may result in a finding
that the parent “has waived legal rights, and is deemed to have admitted the allegations
in the motion or petition for termination.” Ariz. R.P. Juv. Ct. 64(C). The notice also
provides that “the hearings may go forward in the absence of the parent . . . and may
result in the termination of parental rights based upon the record and evidence
presented.” Id.¶43 Rule 64(C) thus supplements the statutory process in two ways. It provides
that the parent’s rights may be waived and the allegations admitted only if the absence
is “without good cause.” But it also provides that the final determination of parental
rights may occur at the same hearing at which the parent failed to appear, rather than at
the previously scheduled final termination adjudication hearing. This scenario is referred
to as an “accelerated hearing,” which is what occurred here. As with the automatic
waiver of rights and admission of allegations triggered by a parent’s failure to appear at
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JUSTICE BOLICK, Dissenting
any judicial proceeding, we have not yet considered the constitutionality of such
accelerated hearings.
¶44 Ordinarily, as DCS’s counsel stated during oral argument, a final
termination hearing can take hours, days, or even weeks. By contrast, a pretrial hearing
accelerated into a final termination adjudication can be (as illustrated by the twenty-five-
minute proceeding here) a perfunctory affair, the outcome of which is preordained. After
all, the parent is unavailable to testify and her attorney is not expecting or prepared to
put on a case and is unlikely to have brought witnesses or exhibits. And importantly, if
the court finds that the parent has failed to appear without good cause, the absent parent
is deemed to have admitted the allegations contained within DCS’s petition to sever. See
§ 8-537(C); Ariz. R.P. Juv. Ct. 64(C).
¶45 Indeed, depending on how early in the process an accelerated hearing takes
place, DCS may not have yet made initial disclosures, and the parent’s counsel may not
have had an opportunity to interview the state’s witnesses. Nor may parental
rehabilitation efforts, which must be considered in certain termination proceedings, see
Alma S. v. Dep’t of Child Safety, 245 Ariz. 146, 151 ¶ 15 (2018), have fully run their course.
For all those reasons, such hearings offend the most basic and essential due process
guarantee, the right to be heard “at a meaningful time and in a meaningful manner.”
Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (internal quotation marks omitted).
¶46 Our recent decisions skew an already unbalanced playing field even more
decisively toward the state. In Brenda D. v. Department of Child Safety, the Court
interpreted “failed to appear” in A.R.S. § 8-863(C) and Arizona Rule of Procedure for
Juvenile Court 66(D)(2) to apply to a parent who merely arrives after a hearing has
started, rather than one who fails to appear at all. 243 Ariz. 437, 443 ¶ 19 (2018). The
Court went on to create procedures and penalties (that do not appear in the text of the
statute or rule) for a parent who arrives late to a hearing. Id. at 444–45 ¶¶ 24–25. Under
Brenda D., a parent’s mere late appearance without good cause serves as a failure to
appear that triggers the default procedure under Rule 66(D)(2), a situation that Justice
Timmer correctly noted “unacceptably dilutes the state’s burden of proof because the
parent is robbed of the ability to test the state’s evidence.” Id. at 450 ¶ 48 (Timmer, J.,
dissenting in part and concurring in part).
¶47 Most recently, the Court in Alma S. concluded that the state need not prove
by clear and convincing evidence that it has made diligent efforts to reunify the family or
that a parent’s rehabilitation efforts have failed before terminating parental rights. 245
Ariz. at 149 ¶ 8, 151 ¶ 15 (relegating such considerations to a determination of the child’s
best interests, which are subject to a lesser evidentiary standard). By contrast, due process
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TRISHA A. V. DCS/L.A./L.A.
JUSTICE BOLICK, Dissenting
requires that where the statutory ground for termination of parental rights is not a proxy
for permanent unfitness, such factors must be considered in determining unfitness under
the clear and convincing evidentiary standard. Id. at 154–55 ¶¶ 30–36 (Bolick, J.,
concurring in the result); see also Santosky, 455 U.S. at 759–60 (“The factfinding does not
purport—and is not intended—to balance the child’s interest in a normal family home
against the parents’ interest in raising the child. . . . [I]t entails a judicial determination
that the parents are unfit to raise their own children.”).
¶48 This parental termination process, in which the state need not establish by
clear and convincing evidence that parental unfitness is irremediable, and in which a
status conference may be accelerated on literally a moment’s notice into an abbreviated
final termination proceeding if the parent misses or arrives late to the hearing, even if she
has diligently appeared at more than a dozen prior proceedings, does not adequately
reflect the fundamental nature of the rights involved nor the gravity of the state’s actions.
See, e.g., Troxel, 530 U.S. at 65–66 (listing cases); Santosky, 455 U.S. at 753 (“Even when
blood relationships are strained, parents retain a vital interest in preventing the
irretrievable destruction of their family life.”).
II.
¶49 Today we consider whether to import into the parental termination context
a judicially created standard from a very different legal context; specifically, whether a
parent must not only show good cause for why she missed a judicial proceeding within
a termination action but must also present a meritorious defense to the entire termination
action. The majority concludes she must do so. That requirement, when viewed through
the appropriate constitutional prism and based on the text of the relevant rules, is
untenable and inappropriate.
¶50 As noted earlier, § 8-537(C) authorizes a court to terminate the parental
rights of a parent who does not appear at a prescribed proceeding but leaves the process
to the rule-making authority of this Court. In turn, Rule 64(C) requires notice that a
parent who fails to appear “without good cause” may be deemed to have waived legal
rights and admitted the allegations in the severance petition and that the hearing may go
forward and parental rights may be terminated in the parent’s absence. Ariz. R.P. Juv.
Ct. 64(C). Such a process is triggered by a “failure to appear . . . without good cause.” Id.
The rule nowhere references “meritorious defense,” either as a separate requirement or
as a component of the good cause showing.
¶51 The majority holds that the meritorious defense requirement is imported
through Rule 46(E), which provides that a motion to set aside a judgment “shall conform
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TRISHA A. V. DCS/L.A./L.A.
JUSTICE BOLICK, Dissenting
to the requirements of Rule 60(b)–(d), Ariz. R. Civ. P.” Ariz. R.P. Juv. Ct. 46(E). But Rule
60 does not mention meritorious defense either. Rather, as pertinent here, Rule 60 allows
a court to set aside a final judgment for “mistake, inadvertence, surprise, or excusable
neglect” or “any other reason justifying relief.” Ariz. R. Civ. P. 60(b)(1), (6). On the face
of the rules, then, the mother here could have had the final judgment voided if she
showed excusable neglect for her failure to attend or “any other reason justifying relief.”
Id.
¶52 The majority nonetheless holds that a parent seeking to vacate a judgment
must show not only good cause as required by the rules, but that she also has a
meritorious defense to the underlying severance petition. We have applied that
requirement (though, inexcusably, we have not amended our rules to reflect it) in the
ordinary civil context where after a party has failed to defend the action, a default is
entered under Arizona Rule of Civil Procedure 55 (allowing default judgment where the
party “has failed to plead or otherwise defend”), and the party seeks relief from that
default. See Gonzalez v. Nguyen, 243 Ariz. 531, 534 ¶ 12 (2018); Richas v. Superior Court, 133
Ariz. 512, 514 (1982).
¶53 Arguing that the meritorious defense showing should be required here, the
State relies primarily on Richas, where the Court applied the meritorious defense
requirement in a slip-and-fall case in which a defendant sought to set aside a default. 133
Ariz. at 517. With respect, this is not a slip-and-fall case, and we should not mechanically
transport a doctrine from the personal injury context to one in which considerably
different and greater interests are at stake. The majority makes the same error when it
relies on various cases discussing the meritorious defense requirement where the only
interest at stake was monetary loss. See Stanley v. Illinois, 405 U.S. 645, 651 (1972) (“It is
plain that the interest of a parent in the companionship, care, custody, and management
of his or her children come[s] to this Court with a momentum for respect lacking when
appeal is made to liberties which derive merely from shifting economic arrangements.”
(alteration in original) (internal quotation marks omitted)).
¶54 It makes sense in the context of ordinary civil litigation to require a party
against whom default was entered for failure to defend the action to demonstrate a
meritorious defense in order to set it aside. It makes considerably less sense to require it
of a party in jeopardy of losing her parental rights against whom default was entered
only for failure to attend a status conference. See In re A.N.D., 883 So. 2d 910, 914 n.3 (Fla.
Dist. Ct. App. 2004) (contrasting default process for severance from a default under civil
procedure rules); In re E.D.J., 348 P.3d 1098, 1103 (Okla. Civ. App. 2014) (“Termination of
a parent’s parental rights is too serious to permit procedural shortcuts.” (internal
quotation marks omitted)); cf. Mitchell v. Brown & Williamson Tobacco Corp., 294 F.3d 1309,
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TRISHA A. V. DCS/L.A./L.A.
JUSTICE BOLICK, Dissenting
1316–17 (11th Cir. 2002) (noting that a default “is a drastic remedy which should be used
only in extreme situations, as the court has available to it a wide range of lesser sanctions”
(citation omitted)).
¶55 Put another way, the meritorious defense requirement in the civil litigation
context flows from a failure to defend under Rule 55. See Ariz. R. Civ. P. 55(a)(1)
(providing that entry of default may be obtained when a party “has failed to plead or
otherwise defend”); Gonzalez, 243 Ariz. at 534 ¶¶ 11–12; Richas, 133 Ariz. at 514. Here, we
do not have a Rule 55 predicate to justify requiring a meritorious defense. Rather, the
predicate for what is essentially a default judgment is failure to attend a hearing “without
good cause” under Rule 64(C). And Rule 46(E) refers to Rule 60, not to Rule 55, but it is
Rule 55 that gives rise to the meritorious defense requirement.
¶56 In fact, Rule 64(C)’s default procedure is not even triggered until there has
been a failure to appear without good cause—unlike Rule 55 which requires a meritorious
defense as part of the good cause showing necessary to set aside a validly-entered default.
Ariz. R. Civ. P. 55(c) (providing that “[t]he court may set aside an entry of default for
good cause”). Rule 55 requires a showing of meritorious defense because there is “a
principle of finality” that attaches to such a validly-entered default. See Gonzalez, 243
Ariz. at 534 ¶¶ 11–12 (internal quotation marks omitted). But here, Rule 64(C) explicitly
provides that the accelerated process and concomitant default is only triggered by a
failure to appear without good cause. Thus, the principle of finality that attaches to a
default in the civil procedure context is not implicated under Rule 64(C) as it is not until
the parent fails to show good cause that a judgment secured under Rule 64(C)’s process
becomes effective under Rule 64(C)’s plain terms.
¶57 This Court has explicitly endorsed this exact notion in interpreting Rule
66(D)(2), which includes the same trigger—failure to appear without good cause—for the
default procedure in a final termination hearing. In Brenda D., the Court instructed that
if “the parent does appear late but during the hearing, the juvenile court should
immediately halt the proceedings to determine whether the parent can show ‘good cause’
for his or her late arrival.” 243 Ariz. at 448 ¶ 41 (emphasis added). Only upon finding that
no good cause exists for the late arrival may the juvenile court conclude that the parent
has waived her legal rights. Id. ¶ 42. Brenda D. is extraordinarily clear: the necessary
predicate for defaulting the parent is centered on a failure to appear without good cause.
¶58 Without that trigger, the default procedure under Rule 66(D)(2) is not
implicated. And Rule 64(C) should be given the same reading as it has the same operative
language. Cf. F.A.A. v. Cooper, 566 U.S. 284, 301 (2012) (noting “the rule of construction
that Congress intends the same language in similar statutes to have the same meaning”);
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TRISHA A. V. DCS/L.A./L.A.
JUSTICE BOLICK, Dissenting
Wyatt v. Wehmueller, 167 Ariz. 281, 284 (1991) (“A court also should interpret two sections
of the same statute consistently, especially when they use identical language.”).
Additionally, as the majority notes, supra ¶ 17, an acceleration converts a pretrial hearing
into a final termination hearing, the exact type of hearing to which Rule 66(D)(2) applies.
Thus, we should apply the same meaning to Rule 64(C) here as the Court applied to Rule
66(D)(2) in Brenda D.
¶59 In sum, the default and accelerated hearing process that Rule 64(C)
provides for is predicated upon a failure to appear without good cause. Consequently,
the Court errs by importing the meritorious defense showing required by Rule 55 here as
that rule’s set-aside procedure is predicated upon a validly-entered default. In contrast,
a default under Rule 64(C) is not effective until the court finds that there was not good
cause for the parent’s failure to appear, the event that triggers the waiver of legal rights
and default under the plain terms of Rule 64(C). The Court errs by failing to recognize
the markedly different events that trigger application of Rule 64(C) versus Rule 55.
¶60 In short, nothing in the applicable juvenile court rules gives rise—expressly,
conceptually, logically, or even impliedly—to a meritorious defense requirement. We are
mixing apples and oranges in a way that makes for a constitutionally toxic concoction.
III.
¶61 In deciding whether to apply in this context not merely Rule 60 but the
meritorious defense requirement, its judicially created appendage, “we must strive to
give [statutes and rules] meanings that avoid serious constitutional issues.” Brenda D.,
243 Ariz. at 444 ¶ 23 (internal quotation marks omitted). Whenever a rule or procedure
deprives a person of a liberty or property interest, its constitutionality must be measured
against the procedural due process factors set forth in Mathews, 424 U.S. at 335: (1) the
importance of the private interests affected by the proceeding, (2) the risk of error created
by the state’s chosen procedure, and (3) the countervailing government interest
supporting the challenged procedure. See Santosky, 455 U.S. at 754 (applying Mathews
factors to determine the appropriate burden of proof in child termination cases). Those
factors here weigh strongly against importing the meritorious defense requirement into
the termination of parental rights context.
¶62 The majority views the meritorious defense requirement in isolation,
emphasizing that it is required only to dissolve a default judgment in which the parent’s
rights have been terminated. Supra ¶¶ 26–30. But the lack of due process safeguards in
the accelerated termination process cannot be detached from the burden imposed on the
parent seeking to recover her rights. The majority contends that due process is not
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TRISHA A. V. DCS/L.A./L.A.
JUSTICE BOLICK, Dissenting
offended because the meritorious defense requirement creates only a “minimal burden,”
as “[a]n attorney at all familiar with a parent’s case could, within three months after
severance, articulate a meritorious defense if one exists.” See supra ¶ 29. This notion is
contrary to due process jurisprudence. The Supreme Court has recognized, “[w]here a
person has been deprived of property in a manner contrary to the most basic tenets of
due process, ‘it is no answer to say that in his particular case due process of law would
have led to the same result because he had no adequate defense upon the merits.’” Peralta
v. Heights Med. Ctr., Inc., 485 U.S. 80, 86–87 (1988) (quoting Coe v. Armour Fertilizer Works,
237 U.S. 413, 424 (1915)). Rather, “the right to procedural due process is ‘absolute’ in the
sense that it does not depend upon the merits of a claimant’s substantive assertions.”
Hamdi v. Rumsfeld, 542 U.S. 507, 530 (2004) (quoting Carey v. Piphus, 435 U.S. 247, 266
(1978)). As such, “only wip[ing] the slate clean” can restore a party “to the position he
would have occupied had due process of law been accorded to him in the first place.”
Peralta, 485 U.S. at 87 (alteration in original) (internal quotation marks omitted).
¶63 Moreover, we must take a holistic view of the overall process and not
merely examine it snippet by snippet. See Fusari v. Steinberg, 419 U.S. 379, 389 (1975)
(stating courts review “the sufficiency of the entire process” that effectuates the
deprivation to ensure conformity with due process). Therefore, the contours of the
accelerated hearing process must be factored in when we are analyzing whether the
process as a whole comports with due process as it is the entirety of the process that causes
the deprivation. See Santosky, 455 U.S. at 763–64 (reviewing whether burden of proof to
establish severance grounds sufficiently protected against erroneous deprivations in light
of the potential for error embodied in the entire severance process); Fusari, 419 U.S. at 389(“[T]he formality and procedural requisites for [a due process] hearing can vary,
depending upon the importance of the interests involved and the nature of the
subsequent proceedings.” (alterations in original) (internal quotation marks omitted)).
When parental rights are terminated at a hearing that was not contemplated for that
purpose and at which the parent is deemed by law to have forfeited her rights, the
burdens subsequently placed on the parent to vacate that judgment bear careful scrutiny
under the Mathews test.
¶64 The first Mathews factor weighs heavily in favor of the parent. “A parent’s
interest in the accuracy and justice of the decision to terminate his or her parental status
is . . . a commanding one.” Lassiter, 452 U.S. at 27; see also Santosky, 455 U.S. at 758. Not
only is a parent’s liberty interest fundamental, but a “decision terminating parental rights
is final and irrevocable. . . . Few forms of state action are both so severe and so
irreversible.” Santosky, 455 U.S. at 759; see also Alyssa W. v. Justin G., 245 Ariz. 599, 601
¶ 11 (App. 2018).
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TRISHA A. V. DCS/L.A./L.A.
JUSTICE BOLICK, Dissenting
¶65 The second factor—the risk of error resulting from the state’s chosen
procedure—also weighs against importing the meritorious defense requirement. The
accelerated final parental rights determination occurs, by definition, before the scheduled
final adjudication. At that point in the process, the parent may not have had an
opportunity to interview the state’s witnesses, the state may not have yet provided initial
disclosures, and the parent may not have completed rehabilitation services. See Trisha A.
v. Dep’t of Child Safety, 245 Ariz. 24, 33 ¶ 26 (App. 2018) (“At the time of such a preliminary
proceeding, often months before the scheduled severance hearing, it is difficult to
imagine what meaningful evidence a parent could offer in order to prove a meritorious
defense.”).
¶66 Even though the parent’s burden is nominally light, the risk of erroneous
deprivation is great. What qualifies as a meritorious defense lies in the eye of the
beholder (the trial court) and that judgment will be disturbed only on an abuse of
discretion. Adrian E. v. Ariz. Dep’t of Econ. Sec., 215 Ariz. 96, 101 ¶ 15 (App. 2007); see also
Santosky, 455 U.S. at 762–63 (noting the risk of error is great where there are “imprecise
substantive standards” and the court possesses great discretion in applying them). The
majority, recognizing this reality, instructs courts to exercise their discretion carefully.
See supra ¶ 14. But the rules contain no standards to guide such discretion (perhaps
because the rules do not even mention the meritorious defense requirement), and we may
overturn a trial court ruling not when the discretion is unwisely exercised but only when
it is abused.
¶67 The third Mathews factor requires us to examine the state’s interests. Here,
the State sets forth two interests: the child’s interest in a permanent home and
administrative efficiency. But under the circumstances, the state’s interests do not
outweigh the parent’s. The accelerated proceeding short-circuits a process that is
calculated to protect both the parent’s and child’s interests. See Santosky, 455 U.S. at 767(noting that state’s interest “is served by procedures that promote an accurate
determination of whether the natural parents can and will provide a normal home”). The
child is already removed from any dangerous conditions and circumstances. Trisha A.,
245 Ariz. at 34 ¶ 27. A schedule culminating in a final termination hearing, in which a
full presentation and review of relevant evidence take place, is already set. Id. Moreover,
although the state’s interest in efficiency is “legitimate, it is hardly significant enough to
overcome private interests as important as those here.” See Lassiter, 452 U.S. at 28.
Forcing the parent to prematurely present a defense, even when she has provided good
cause for missing a pretrial hearing, does not materially advance the state’s interests,
although it adds yet another procedural obstacle to the parent seeking to protect her
rights that increases the odds of erroneous deprivation of her parental rights. Cf. In re
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TRISHA A. V. DCS/L.A./L.A.
JUSTICE BOLICK, Dissenting
E.D.J., 348 P.3d at 1103 (concluding that default for failure to appear in a termination
action was erroneously entered under similar facts).
¶68 Likewise, imposing the meritorious defense requirement plainly infringes
on the fundamental right of parents to direct the upbringing of their children protected
by § 1-601(A). The State has failed to show that requiring a meritorious defense to set
aside a default under Rule 64(C) advances a compelling government interest of the
highest order, that it is narrowly tailored to achieve a compelling government interest,
and that the governmental interest cannot be adequately served by less restrictive means
(such as requiring a set-aside upon a parent’s showing of good cause for failing to
appear). See § 1-601(B).
¶69 Finally, today’s decision offends another essential of due process, the right
to know how to comply with the law. F.C.C. v. Fox Television Stations, Inc., 567 U.S. 239,
253 (2012). I have previously criticized this Court for creating new rules in our decisions
without amending the actual rules that people should be able to rely upon to learn the
procedural requirements that may profoundly affect their rights and their lives. See, e.g.,
Phillips v. O’Neil, 243 Ariz. 299, 306 ¶ 34 (2017) (Bolick, J., dissenting); Allen v. Sanders, 240
Ariz. 569, 574–75 ¶¶ 28–30 (2016) (Bolick, J., concurring in the result). The majority’s
decision creates not a roadmap but a labyrinth, and not just for the unwary but even for
those trained in the law.
¶70 How would an unrepresented parent learn that she must present a
meritorious defense to the underlying action in order to set aside termination of her
parental rights following an accelerated hearing? She could not learn of that requirement
from the relevant statute, or even the relevant juvenile court rule, which indicates that
she need show only good cause for her absence. Instead, she would need to find a
provision elsewhere in the juvenile rules that incorporates a provision in a different set
of rules. Even when she examined the pertinent civil procedure rules, she would not
learn about the meritorious defense requirement because it does not appear there either.
Rather, she would have to determine that the applicable requirement is contained not in
the rules but in court decisions, not in the juvenile law context but unrelated civil
litigation, and then assume the requirement applies here.
¶71 For the foregoing reasons, I would not stray beyond the text of our rules to
require more than good cause for failing to appear at a hearing in order to vacate a
termination order resulting from an accelerated hearing. The Court’s decision not only
transgresses the plain text but interprets the rules in a way that violates due process. I
would affirm the court of appeals’ holding that “[t]hese proceedings deprived Mother of
a fundamentally fair severance hearing.” Trisha A., 245 Ariz. at 35 ¶ 33.
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TRISHA A. V. DCS/L.A./L.A.
JUSTICE BOLICK, Dissenting
IV.
¶72 Little is likely to change as a result of today’s decision because the process
is already overwhelmingly weighted against a parent seeking to preserve her legal status
in a termination proceeding. As I recently observed, according to DCS statistics,
termination petitions in recent years resulted in severance of parental rights
approximately 99.94% of the time. Alma S., 245 Ariz. at 153 ¶ 28 (Bolick, J., concurring in
the result). But with each decision by this Court, the playing field grows more uneven,
and the precious constitutional protections to which all parents are entitled further erode.
¶73 Nothing in this dissenting opinion should be taken to impugn DCS or its
vital mission to protect vulnerable children. But the process our state has constructed
creates the very real prospect that parents will lose their children not because they
deserve to, but because they are unable to effectively defend their rights in a system that
is stacked hopelessly against them. For those reasons, and with great respect to my
colleagues, I dissent.
23