Melissa T. v. Dcs, P.T.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
MELISSA T., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, P.T., Appellees.
No. 1 CA-JV 18-0352
FILED 2-5-2019
Appeal from the Superior Court in Yavapai County
No. P1300JD201800046
The Honorable Anna C. Young, Judge
AFFIRMED
COUNSEL
Robert D. Rosanelli Attorney at Law, Phoenix
By Robert D. Rosanelli
Counsel for Appellant
Arizona Attorney General’s Office, Tucson
By Autumn Spritzer
Counsel for Appellee Department of Child Safety
MELISSA T. v. DCS, P.T.
Decision of the Court
MEMORANDUM DECISION
Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Maria Elena Cruz joined.
J O N E S, Judge:
¶1 Melissa T. (Mother) appeals the juvenile court’s order
terminating her parental rights to P.T. (Child), arguing she was deprived of
due process when the court proceeded in her absence after she failed to
appear at a pretrial conference. We find no due process violation and
affirm.
FACTS AND PROCEDURAL HISTORY
¶2 In June 2018, the Department of Child Safety (DCS) removed
one-month-old Child from Mother’s care after receiving a report that
Mother and Child’s father (Father) were using methamphetamine and
engaging in domestic violence in Child’s presence.1 DCS immediately filed
two petitions: the first alleged Child was dependent as to Mother, and the
second requested Mother’s parental rights be terminated upon the grounds
of neglect, substance abuse, domestic violence, and a prior termination in
the preceding two years for the same cause.2 See Ariz. Rev. Stat. (A.R.S.)
§ 8-533(B)(2), (3), (10).3 The juvenile court scheduled a pretrial conference
for August 2018. Mother received, signed, and returned the Form 3: Notice
to Parent in a Termination Action, which correctly identified the date and
time of the hearing and advised Mother that she would waive her right to
1 “We view the facts in the light most favorable to upholding the
juvenile court’s order [terminating parental rights].” Ariz. Dep’t of Econ. Sec.
v. Matthew L., 223 Ariz. 547, 549, ¶ 7 (App. 2010) (citing Manuel M. v. Ariz.
Dep’t of Econ. Sec., 218 Ariz. 205, 207, ¶ 2 (App. 2008)).
2 DCS also alleged Child was dependent as to Father and petitioned
for termination of his parental rights on the same grounds. Father’s rights
were terminated in August 2018, and he did not appeal.
3 Absent material changes from the relevant date, we cite the current
version of rules and statutes.
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MELISSA T. v. DCS, P.T.
Decision of the Court
contest the contents of the petitions if she did not attend certain hearings,
including a pretrial conference, without good cause.
¶3 When Mother did not appear at the August 2018 pretrial
conference, counsel advised the juvenile court that Mother had relocated to
Phoenix and was unable to attend in person because she was working and
did not have reliable transportation. Although Mother’s counsel had
provided her with the court’s telephone number and requested she be
permitted to appear telephonically, Mother did not call.
¶4 The juvenile court determined Mother had notice of the
August 2018 pretrial conference and lacked good cause for her failure to
appear. The court then accepted Mother’s non-appearance as an admission
to the allegations of the petitions, adjudicated Child dependent, and
proceeded with the termination hearing. See A.R.S. §§ 8-537(C), -844(F);
Ariz. R.P. Juv. Ct. 64(C); Marianne N. v. DCS, 243 Ariz. 53, 56, ¶ 16 (2017).
After receiving testimony, the court found DCS proved all three statutory
grounds for severance by clear and convincing evidence and that severance
was in Child’s best interests by a preponderance of the evidence, and
entered an order terminating Mother’s parental rights. Mother timely
appealed, and we have jurisdiction pursuant to A.R.S. §§ 8-235(A), 12-
120.21(A)(1), -2101(A)(1), and Arizona Rule of Procedure for the Juvenile
Court 103(A).
DISCUSSION
¶5 Mother argues the juvenile court deprived her of due process
when it found she did not have good cause for failing to appear at the
pretrial conference and then accelerated the termination adjudication
hearing to the time scheduled for the pretrial proceeding.4 We will reverse
the court’s determination regarding good cause only if it 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) (quoting Lashonda M. v. Ariz. Dep’t of Econ. Sec., 210 Ariz. 77, 83, ¶ 19
(App. 2005)). Whether a party is afforded due process presents a question
4 Mother also argues the juvenile court abused its discretion when it
denied her counsel’s oral motion to allow Mother to participate in the
pretrial conference telephonically. The record reflects, however, that the
court never denied Mother’s request; rather, Mother simply failed to call
the court at any point during the hearing.
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MELISSA T. v. DCS, P.T.
Decision of the Court
of law we review de novo. Jeff D. v. DCS, 239 Ariz. 205, 207, ¶ 6 (App. 2016)
(citing Herman v. City of Tucson, 197 Ariz. 430, 432, ¶ 5 (App. 1999)).
¶6 To demonstrate good cause for failing to appear at a pretrial
conference, a parent must “show evidence of a legitimate reason or excuse
for her failure to appear — which the court, in its discretion, may accept or
reject.” Trisha A. v. DCS, 245 Ariz. 24, 34, ¶ 28 (App. 2018). Mother argues
she should not have been required to personally appear for the pretrial
conference because she did not have reliable transportation, had recently
begun a new job, and had “little or no income.” Nonetheless, the juvenile
court could reasonably determine that Mother’s unavailability was of her
own volition. See, e.g., Bob H. v. Ariz. Dep’t of Econ. Sec., 225 Ariz. 279, 282,
¶¶ 11-13 (App. 2010) (concluding a parent’s “excuse that she was required
to arrange her own transportation is insufficient to establish good cause for
failure to appear”). Moreover, Mother made no effort prior to the pretrial
conference to obtain permission to appear telephonically, to request that
her presence be waived, or to seek assistance with transportation.
Unexplained neglect is not excusable. See Richas v. Superior Court, 133 Ariz.
512, 515 (1982). Accordingly, we find no abuse of discretion.
¶7 The juvenile court has discretion to accelerate the termination
adjudication hearing after a parent fails to appear at a pretrial conference
without good cause. See A.R.S. §§ 8-535(E)(3), -537(C); Ariz. R.P. Juv. Ct.
64(C); Marianne N., 243 Ariz. at 57-58, ¶¶ 22-25. Mother argues the court
abused its discretion in doing so here because it resulted in a deprivation of
due process. We disagree.
¶8 Although the right to the custody and control of one’s child is
fundamental, it is not absolute. Michael J. v. Ariz. Dep’t of Econ. Sec., 196
Ariz. 246, 248, ¶¶ 11-12 (2000). In the absence of good cause, a parent who
fails to appear at a pretrial conference after being advised of the
consequences for her non-appearance waives her right to be present and
personally participate and testify in the hearing. See Brenda D. v. DCS, 243
Ariz. 437, 440, ¶ 2 (2018); see also Trisha A., 245 Ariz. at 34, ¶ 30 (noting a
parent who fails to appear without good cause waives certain rights);
Manuel M., 218 Ariz. at 211, ¶¶ 19-20 (recognizing that although a parent
has procedural due process rights in a termination adjudication hearing,
the parent can waive those rights through non-appearance after being
“specifically informed he or she could lose by failing to appear”) (citing
Monica C. v. Ariz. Dep’t of Econ. Sec., 211 Ariz. 89, 93, ¶ 20 (App. 2005), and
A.J. Bayless Mkts., Inc. v. Indus. Comm’n, 134 Ariz. 243, 245 (App. 1982)). The
absent parent’s due process rights are satisfied, however, through the
effective participation of counsel. See Christy A. v. Ariz. Dep’t of Econ. Sec.,
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MELISSA T. v. DCS, P.T.
Decision of the Court
217 Ariz. 299, 307, ¶¶ 25, 28 (App. 2007) (“[W]here the parent fails to appear
but is still represented by counsel, the court may proceed in that parent’s
absence because his or her rights will be protected by the presence and
participation of counsel.”); see also Brenda D., 243 Ariz. at 440, ¶ 3 (holding
the absent parent retains her right to counsel, who may then “fully
participate in the hearing”).
¶9 The record reflects Mother’s counsel was present at, and
effectively participated in, the accelerated termination adjudication
hearing. Counsel cross-examined DCS’s witnesses and was given the
opportunity to comment on the admissibility of evidence and present
information and argument to the juvenile court. Thus, Mother participated
in the hearing through counsel and has not shown any due process
violation.
CONCLUSION
¶10 Mother does not contest the sufficiency of the evidence to
support the juvenile court’s findings and orders. Accordingly, the order
terminating Mother’s parental rights to Child is affirmed.
AMY M. WOOD • Clerk of the Court
FILED: AA
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