Adrian E. v. Arizona Department of Economic Security

FILED BY CLERK
IN THE COURT OF APPEALS MAY 18 2007
STATE OF ARIZONA
COURT OF APPEALS
DIVISION TWO DIVISION TWO
ADRIAN E., )
)
Appellant, ) 2 CA-JV 2006-0053
) DEPARTMENT B
v. )
) OPINION
ARIZONA DEPARTMENT OF )
ECONOMIC SECURITY and )
NAINOA E., )
)
Appellees. )
)
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. 16861800
Honorable Nanette M. Warner, Judge
AFFIRMED
Belinda B. BreMiller Tucson
Attorney for Appellant
Terry Goddard, Arizona Attorney General
By Stacy L. Shuman Mesa
Attorneys for Appellee Arizona
Department of Economic Security
Davida Arambula Tucson
Attorney for Appellee Nainoa E.
E C K E R S T R O M, Presiding Judge.
¶1 Appellant Adrian E. appeals from the juvenile court’s termination of his
parental rights to his son Nainoa E., born August 23, 2003, arguing the court lacked
authority to order termination during a status conference he had failed to attend. Adrian
also appeals from a subsequent order denying his motion to set aside the termination order.
Although we identify inadequacies in the form of notice provided to Adrian—a form
designed to alert parents that their failure to appear at court proceedings could constitute
waiver of their legal right to contest the termination of their parental rights—we affirm the
termination of Adrian’s parental rights to Nainoa based on the specific facts of this case.
Facts and Procedural History
¶2 Nainoa, a child who suffers from numerous medical conditions, was
adjudicated dependent as to Adrian in April 2004. In September 2005, the Arizona
Department of Economic Security moved to terminate Adrian’s parental rights to Nainoa on
the grounds of mental illness or chronic substance abuse pursuant to A.R.S. § 8-533(B)(3),
the child’s out-of-home placement for nine months or longer pursuant to § 8-533(B)(8)(a),
and the child’s out-of-home placement for fifteen months or longer pursuant to § 8-
533(B)(8)(b).1 The Department later amended the motion to include as an additional
ground pursuant to § 8-533(B)(4) that Adrian had been sentenced to a term of imprisonment
of such length that it would deprive Nainoa of a normal home for a period of years. The
motion also alleged termination was in Nainoa’s best interests.
Nainoa’s mother’s parental rights were terminated in December 2005. In April 2006,
1
a permanent guardianship was established for Nainoa’s twin sister, Byanca.
2
¶3 After multiple continuances of an anticipated jury trial, the juvenile court held
two status conferences of relevance to the issues presented in this appeal. The first was held
on May 22, 2006. Adrian was present at the hearing and in the custody of the Pima County
Adult Detention Center. During the hearing, the court scheduled a four-day jury trial to
commence on August 22. The court also scheduled a second status conference for August 7.
¶4 The May 22 minute entry states that the juvenile court “inform[ed Adrian] of
his rights” and that Adrian signed a “[w]ritten notice of rights” and was provided a copy of
the notice. That document, bearing Adrian’s signature, entitled “Notice to Parent in
Termination Action,” is consistent with “Form V,” a template appended to the Arizona
Rules of Procedure for the Juvenile Court.2 Adrian does not dispute that the form bearing
his signature lists both the trial dates and the August 7 status conference or that it states:
You are required to appear for all court hearings. If you
cannot attend a court hearing, you must prove to the court that
you did not appear for good cause. If you fail to appear without
good cause for the Termination Pretrial Conference,
Termination Settlement Conference or Termination
Adjudication, the court may determine that you have waived
your legal rights including the right to trial to a jury, admitted
the grounds alleged in the motion/petition for termination and
may terminate your parental rights to your child based on the
record and evidence presented.
¶5 Without explanation, Adrian did not appear on August 7. After confirming
that he had been released from jail on a work furlough, the court proceeded in his absence
2
Form V is no longer in effect. Its nearly verbatim and currently effective counterpart,
Form III, contains no differences relevant to this decision.
3
with a “default” adjudication hearing on the motion for termination.3 In support of the
motion, the Department moved for the admission of seven reports authored by Child
Protective Services (CPS) personnel. Nainoa’s counsel did not oppose the admission of the
documents and the court admitted them. Adrian’s counsel reminded the court she had
previously “file[d] objections to those reports,” and the court responded it would not rule
on the objections but would follow “general rules.” No further discussion about the reports’
admissibility occurred.
¶6 The Department then presented the testimony of CPS case manager Francisco
Rendon. Rendon testified generally that termination was in Nainoa’s best interests. At the
conclusion of Rendon’s testimony, the juvenile court found the Department had proved
three of the alleged grounds for termination: mental illness or chronic substance abuse, nine
months’ out-of-home placement, and fifteen months’ out-of-home placement. The court
also found that termination of Adrian’s parental rights was in Nainoa’s best interests and
directed the Department to submit an order for the court’s signature. The juvenile court did
not mention the alleged felony conviction ground, and Adrian’s parental rights were not
terminated on that basis.
3
When a parent fails to appear without good cause for certain hearings in a
termination action, the juvenile court may proceed in the parent’s absence with what is
commonly referred to as a “default.” In this procedure, the juvenile court may deem a
nonappearing parent to have admitted the allegations of the motion for termination of
parental rights, but may terminate those rights only if “the record and evidence presented”
also support the adjudication. Ariz. R. P. Juv. Ct. 64(C), 17B A.R.S.; see also A.R.S. §§
8-537(C), 8-863(C).
4
¶7 On August 24, Adrian moved to set aside the termination order, arguing the
juvenile court had lacked authority to proceed by default at a status conference. He
alternatively argued he had established good cause for his failure to appear on August 7,
citing an affidavit in which he attested, inter alia, that he had been unaware of the August
7 hearing because he had not received a copy of the May 22 minute entry his attorney had
mailed to him, and his copy of the Notice to Parent showing the August 7 date had likely
been lost while he had been en route to the jail after the May 22 hearing. The court denied
Adrian’s motion and signed the termination order the Department had previously submitted.
Discussion
A. Juvenile Court’s Authority
¶8 On appeal, Adrian first contends the juvenile court lacked authority to proceed
by default at a status conference and therefore clearly erred in refusing to set aside the order
terminating his parental rights. For support, he cites various statutes and rules of procedure
and our decision in Don L. v. Arizona Department of Economic Security, 193 Ariz. 556,
975 P.2d 146 (App. 1998). In that case, we reversed a termination order “because neither
a statute nor a rule [had] authorized the juvenile court to enter a default against the father
for failing to appear at a status hearing.” Id. ¶ 8. Adrian claims that despite subsequent
revision of the rules of procedure for the juvenile court, the rules “still do not appear to
permit a termination at a status hearing.”
¶9 The interpretation of a court rule presents a question of law that we review de
novo. Merlina v. Jejna, 208 Ariz. 1, ¶ 7, 90 P.3d 202, 204 (App. 2004). Rule 64(C), Ariz.
5
R. P. Juv. Ct., 17B A.R.S., did not exist when we decided Don L. The version of the rule
applicable to Adrian provided that a notice of hearing accompanying a motion or petition
for termination of parental rights
shall advise the parent . . . that failure to appear at the initial
hearing, pretrial conference, status conference or termination
adjudication hearing, without good cause, may result in a
finding that the parent . . . has waived legal rights, including the
right to trial to a jury,[4] and is deemed to have admitted the
allegations in the motion or petition for termination. The notice
shall advise the parent . . . 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.
(Emphasis added.) The plain language of this rule undeniably suggests parental rights may
be terminated by default at any of the four types of hearings named in the rule, including
status conferences.
¶10 In addition, two other rules specifically prescribe a procedure for addressing
a parent’s failure to appear at two of the other types of hearings listed in Rule 64(C). The
procedure to be followed for initial termination hearings is addressed in Rule 65(C)(6)(c),
Ariz. R. P. Juv. Ct., 17B A.R.S. A virtually identical procedure for termination adjudication
hearings is prescribed by Rule 66(D)(2), Ariz. R. P. Juv. Ct., 17B A.R.S. The procedures
set forth in these rules closely mimic the cautionary language used in Rule 64(C) authorizing
the court to deem a parent’s failure to appear as a waiver of rights and admission of
4
A statute previously granting a right to a jury trial upon demand by a parent facing
termination of his or her parental rights has been repealed. See 2003 Ariz. Sess. Laws 2d
Spec. Sess., ch. 6, § 45 (repealing A.R.S. § 8-223, effective Jan. 1, 2007). Rule 64(C) has
been amended to reflect this legislative change.
6
allegations and to enter a termination adjudication order based upon the record and evidence
presented. See Ariz. R. P. Juv. Ct. 65(C)(6)(c), 66(D)(2).
¶11 Adrian acknowledges these rules, but claims that despite Rule 64(C)’s
directive to advise parents the court may proceed to a termination hearing at a status
conference in their absence, only Rules 65 and 66 confer authority on the juvenile court to
actually enter such “default” termination orders. Adrian then reasons that the juvenile
court’s authority to enter default judgments is confined only to the two types of hearings
addressed by Rules 65 and 66. Because a status conference is not among them, he
concludes the juvenile court lacked authority to proceed in his absence during the August
7 status conference.
¶12 We disagree. Rule 64(C) plainly requires a parent to be notified at the time
he or she is served with a termination motion that the failure to appear for a status
conference could result in termination of parental rights, and Adrian was properly served,
through counsel, with such notice in September 2005. See A.R.S. § 8-863(A). Our
reluctance to interpret a rule or statute in a manner that renders any part of it superfluous,
see In re Maricopa County No. MH 2001-001139, 203 Ariz. 351, ¶ 17, 54 P.3d 380, 383
(App. 2002), leads us to the only logically available conclusion: Rule 64(C) implicitly
authorizes the juvenile court, in accordance with the procedure described in Rules
65(C)(6)(c) and 66(D)(2), to terminate the parental rights of a parent who, like Adrian, fails
to appear without good cause for a status conference on a pending motion for termination.
7
See also Merlina, 208 Ariz. 1, ¶ 7, 90 P.3d at 204 (same rules of construction apply for
court rules as for statutes).
¶13 The Department also cites A.R.S. § 8-537(C) as statutory authority for the
juvenile court to proceed by default. That statute does state, in relevant part, “[i]f a parent
does not appear at the . . . status conference,” the court may proceed in the parent’s absence
if other criteria are also met. Id. However, § 8-537(C) falls within article 2, chapter 5 of
title 8 (A.R.S. §§ 8-531 through 8-544). The Department did not initiate the termination
proceedings involving Nainoa by filing a termination petition under article 2 of chapter 5.
Instead, the termination proceedings were initiated by the Department’s filing a termination
motion in an ongoing dependency proceeding pursuant to article 4 of chapter 10 (A.R.S.
§§ 8-861 through 8-864). And § 8-532(C) specifically states, with an exception not relevant
here, that “article [2 of chapter 5] does not apply to termination proceedings conducted
pursuant to chapter 10, article 4 of this title.” Thus, § 8-537(C) is not applicable to the
parental termination proceeding initiated by motion here.
¶14 Accordingly, we disagree with the Department that § 8-537(C) provided
statutory authority for the juvenile court to proceed as it did here.5 But Adrian does not
5
We are aware other appellate decisions have applied various statutory provisions of
article 2 of chapter 5 without discussion in cases in which the termination proceedings were
or may have been conducted under chapter 10, article 4. See, e.g., Kelly R. v. Ariz. Dep’t
of Econ. Sec., 213 Ariz. 17, ¶ 28, 137 P.3d 973, 978 (App. 2006) (addressing criteria for
appointment of guardian ad litem under A.R.S. § 8-535(F)); Kenneth T. v. Ariz. Dep’t of
Econ. Sec., 212 Ariz. 150, ¶ 24, 128 P.3d 773, 777 (App. 2006) (§ 8-537 does not prohibit
entry of summary judgment in termination proceedings); Jesus M. v. Ariz. Dep’t of Econ.
Sec., 203 Ariz. 278, ¶ 4, 53 P.3d 203, 205 (App. 2002) (clear and convincing standard of
proof required by § 8-537(B)).
8
contend that the supreme court improperly exercised its rule-making authority when it
adopted Rule 64(C), a provision that unambiguously extends the authority of the juvenile
court to proceed by default in termination proceedings initiated by motion.6 Because Rule
64(C) independently authorized the juvenile court to proceed by default at the August 7
status hearing, the court correctly rejected Adrian’s claim that it had exceeded its authority
in doing so.
B. Good Cause
¶15 Adrian next contends, as he did below, that the juvenile court was required
to set aside the termination order because he had established good cause for his failure to
appear on August 7. “[A] finding of good cause for a failure to appear is largely
discretionary.” John C. v. Sargeant, 208 Ariz. 44, ¶ 13, 90 P.3d 781, 784 (App. 2004). We
therefore review the finding for an abuse of discretion and generally will reverse only if the
juvenile court’s exercise of that discretion was “‘manifestly unreasonable, or exercised on
untenable grounds, or for untenable reasons.’” Lashonda M. v. Ariz. Dep’t of Econ. Sec.,
210 Ariz. 77, ¶ 19, 107 P.3d 923, 929 (App. 2005), quoting Quigley v. Tucson City Court,
132 Ariz. 35, 37, 643 P.2d 738, 740 (App. 1982).
¶16 In his motion and supporting affidavit, Adrian essentially claimed it was
reasonable for him to have: (1) lost the Notice to Parent, which he could not remember
6
We do not imply a complete absence of statutory authority for the juvenile court to
proceed by default in termination actions conducted under chapter 10, article 4. To the
contrary, A.R.S. § 8-863(C) provides such authority. However, that statute was not relied
upon by any of the parties here, nor does it address the entry of default judgments at status
conferences, the specific issue presented.
9
having received; (2) recalled only the dates set for trial; and (3) become “confus[ed]” by the
number of hearings that had been held. In addressing Adrian’s contentions, we acknowledge
that the notice Adrian received on May 22, the last notice he received before failing to
appear on August 7, was misleading and confusing. That notice did not advise Adrian that
his failure to appear at a status conference could result in termination of his parental rights.
Instead, in conformity with Form V’s (and current Form III’s) suggested text, it referred only
to a pretrial conference, settlement conference, or adjudication hearing. We find
inexplicable the form’s inconsistency with Rule 64(C), the latter of which includes status
conferences but does not refer to settlement conferences as among those hearings at which
parental rights may be terminated by default. Conceivably, the notice’s erroneous
itemization of those hearings might mislead or confuse a parent—even one who has earlier
received more accurate warnings or admonishments about the consequences of a failure to
appear at a status conference.
¶17 We therefore urge our juvenile courts to utilize a notice that conforms with
Rule 64(C) in part because of the emphasis that notice receives in the courtroom. Parents
are asked to sign the notice and are provided a copy of it. That useful process conveys to
the parent the importance of attending the itemized hearings, assists the parent in
remembering the upcoming court dates, and memorializes that the parent has received the
notice. But if the notice contains incorrect or misleading information, that process only
increases the risk that parents will rely upon any inaccuracies to their detriment.
10
¶18 Moreover, the juvenile court apparently filled out a portion of the form in a
fashion that could confuse parents. The form Adrian signed on May 22 shows the next
hearing type as “trial/status conference.” Then, in handwriting following the word “Date,”
the notice shows “8/22, 23, 24, 25,” the dates set for trial. Below that, in white space
reserved above the signature line, additional handwriting states “8/7/06 at 1:30 status
conference.” Adrian’s claim—that he “had committed the trial dates to memory as being
the next time [he] needed to appear”—is consistent with the confusing, nonchronological
order in which the dates of Adrian’s future hearings are itemized under the category “Next
hearing type.” We thus discourage the practice of showing the dates of the “[n]ext
hearing(s)” in anything other than chronological order.
¶19 However, the importance of these inconsistencies and potentially confusing
attributes of the notice is greatly diminished under the specific facts of this case because
Adrian ultimately contended that he had lost the notice altogether or perhaps had never
actually received a copy of it. Moreover, Adrian’s motion to set aside the termination order
and accompanying affidavit did not establish that he had lacked actual notice of the hearing
or the consequences of his failure to appear at it. The record, by contrast, shows he had
received both. Throughout the dependency and termination proceedings, the court
repeatedly admonished Adrian that his failure to attend “future hearings” could result in
termination of his parental rights. Indeed, his children previously had been adjudicated
dependent as to him by default when he had failed to appear at a status hearing.
Accordingly, Adrian’s claims about the adequacy of the notice he received and the
11
reasonableness of his calendaring error raised substantial questions of fact and credibility
for the juvenile court to resolve.
¶20 The court did so in September 2006, after a hearing on Adrian’s motion to set
aside the default. Adrian testified at the hearing, was cross-examined by counsel for the
Department, and was further questioned by the court. The court then denied the motion
“[f]or the reasons set forth on the record.” Unfortunately, a transcript of the hearing is not
included in the record on appeal. And, as Adrian correctly implies, its absence appears to
have resulted from an error on the part of the superior court clerk.7
¶21 Adrian insists in his reply brief, however, that the transcript is not “essential
to deciding the issues presented” and that “the minute entries and the parties’ pleadings set
forth a sufficient record of the case to render a decision.” We generally presume items that
are necessary for our consideration of the issues but not included in the record support the
court’s findings and conclusions. See Baker v. Baker, 183 Ariz. 70, 73, 900 P.2d 764, 767
(App. 1995). Our reticence to reverse a juvenile court’s discretionary ruling, particularly
one that finds support in the available record, is only amplified when an appellant insists we
7
Adrian stated in his notice of appeal that he was appealing from the “denial of his
Motion to Set Aside Default and the form of Order entered on or around the 25th day of
September terminating his parental rights.” Under the applicable version of Rule 89(C)(1),
Ariz. R. P. Juv. Ct., 17B A.R.S., the clerk of the superior court was required to serve a copy
of the notice “on each court reporter who reported any juvenile court proceeding that [wa]s
part of the transcript as defined by [Rule 89](D)(2).” Because the hearing on Adrian’s
motion was one “that generated the order being appealed,” Rule 89(D)(2)(d), the clerk
should have notified the court reporter, and the transcript should have been included in the
record on appeal. Ariz. R. P. Juv. Ct. 89(D)(1). The clerk’s letter of October 5, 2006,
shows this was not done.
12
need not be privy to the court’s reasoning or all of the evidence upon which its decision was
based. Accordingly, although we urge our juvenile courts to generate form notices that
accurately and clearly describe the hearings that parents must attend on penalty of forfeiting
their rights, we can find no abuse of discretion in the juvenile court’s specific denial of
Adrian’s motion to set aside the termination order.
C. Admissibility and Sufficiency of the Evidence
¶22 Finally, Adrian claims the juvenile court lacked sufficient evidence upon which
to base its findings that grounds for termination existed. He contends six of the seven
documentary exhibits admitted into evidence over his objection were not properly admitted.
He further contends the exhibits themselves, coupled with Rendon’s testimony, did not
provide sufficient evidence to support the juvenile court’s findings. The Department
counters that Adrian abandoned these arguments by failing to sufficiently develop them on
appeal. We find any possible error in the court’s evidentiary rulings was either harmless or
waived and the evidence supports the court’s findings.
¶23 At the August 7 hearing, after the Department had moved to admit Exhibits
One through Seven, the court and Adrian’s counsel had the following exchange:
MS. BREMILLER: I did file objections to those reports,
Your Honor.
THE COURT: For the purpose of jury trial that would
be a different issue, not for purpose of a court hearing. The
Cou[rt] would rule on each of those. The Court has general
rules it follows.
MS. BREMILLER: Okay.
13
Although the court’s ruling on the theory of admissibility of the documents is unclear,
Exhibits One through Six had been previously admitted during various dependency hearings.
Consequently, each of those exhibits was a part of the record the juvenile court could
consider in conducting a default hearing. See Ariz. R. P. Juv. Ct. 64(C) (requiring notice to
parent that court can proceed with adjudication of termination “based upon the record and
evidence presented” if parent fails to appear without good cause) (emphasis added); see also
Ariz. R. P. Juv. Ct. 65(C)(6)(c), 66(D)(2). Therefore, irrespective of their independent
admissibility on August 7, the juvenile court properly considered Exhibits One through Six.
¶24 Adrian waived any objection to Exhibit Seven. That document, a report
authored by Rendon in February 2006, was not a subject of the written objections of which
Adrian’s counsel reminded the court on August 7. Adrian did not separately object to its
admission below, nor does he appear to challenge its admission on appeal. As a result, all
of the exhibits were either a part of the record or admitted into evidence without objection,
and the juvenile court did not err in considering them.
¶25 Adrian contends, however, that the evidence nevertheless was insufficient to
support the court’s conclusions that grounds for termination existed because the
Department’s earlier motion for summary judgment had been unsuccessful. According to
Adrian, it “defies common sense” that “the same information, not presented by the State in
affidavit form” could constitute “clear and convincing evidence in support of the termination
of [his] parental rights.” We reject this argument because it conflates a determinative
question for summary judgment—whether the evidence presents genuine issues of material
14
fact—with a determinative question for adjudication—whether, based on the evidence, the
trier of fact should resolve those issues in the movant’s favor. In this appeal, we are
concerned only with the latter of these, and we will affirm if any reasonable evidence
supports a juvenile court’s findings. See Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz.
278, ¶ 4, 53 P.3d 203, 205 (App. 2002).
¶26 Adrian, however, fails to explain how the record and evidence presented fell
short of establishing that at least one alleged ground for termination of his parental rights
existed, particularly in light of the fact that he was deemed to have admitted the allegations
contained in the motion for termination. We have reviewed the record and found ample
evidence from which the juvenile court could conclude that the Department made a diligent
effort to provide appropriate reunification services, that Nainoa remained in an out-of-home
placement for more than nine months, that Adrian substantially neglected or willfully
refused to remedy the circumstances causing Nainoa to remain in such a placement, and that
termination of Adrian’s parental rights was in Nainoa’s best interests. Accordingly, the
juvenile court properly found a statutory ground for termination under § 8-533(B)(8)(a) had
been established. Having reached this conclusion, we need not consider the remaining
grounds upon which Adrian’s parental rights were terminated. See Pima County Severance
Action No. S-110, 27 Ariz. App. 553, 554, 556 P.2d 1156, 1157 (1976) (when evidence
supports one ground for termination, appellate court need not consider other grounds).
15
Conclusion
¶27 We affirm the juvenile court’s orders terminating Adrian’s parental rights to
Nainoa and denying the motion to set aside that judgment.
____________________________________
PETER J. ECKERSTROM, Presiding Judge
CONCURRING:
____________________________________
J. WILLIAM BRAMMER, JR., Judge
____________________________________
PHILIP G. ESPINOSA, Judge
16