Kimberly B. v. Adcs, P.B.

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
KIMBERLY B., Appellant,
v.
ARIZONA DEPARTMENT OF CHILD SAFETY, 1 P. B., Appellees.
No. 1 CA-JV 14-0030
FILED 06-26-2014
Appeal from the Superior Court in Maricopa County
No. JD510518
The Honorable Julia Lopez, Judge Pro Tempore
AFFIRMED
COUNSEL
The Stavris Law Firm, PLLC, Scottsdale
By Christopher Stavris
Counsel for Appellant
Arizona Attorney General’s Office, Phoenix
By Eric K. Knobloch
Counsel for Appellee Arizona Department of Child Safety
1 Pursuant to S.B. 1001, Section 157, 51st Leg., 2nd Spec. Sess. (Ariz.
2014) (enacted), the Arizona Department of Child Safety is substituted for
the Arizona Department of Economic Security (“ADES”) in this matter.
See ARCAP 27. To maintain consistency with the juvenile court record,
however, we refer to ADES throughout the body of our decision.
KIMBERLY B. v. ADCS, P.B.
Decision of the Court
MEMORANDUM DECISION
Judge Michael J. Brown delivered the decision of the Court, in which
Judge Jon W. Thompson and Judge Margaret H. Downie joined.
B R O W N, Judge:
¶1 Kimberly B. (“Mother”) appeals the juvenile court’s order
terminating her parental rights to her six-year-old daughter (the child).
For the following reasons, we affirm.
BACKGROUND
¶2 In October 2012, Child Protective Services received a report
that Mother left the child at a shelter and requested that the child be
picked up by a relative. Two days later, the Arizona Department of
Economic Security (“ADES”) filed a dependency petition alleging that
Mother was unable to parent her child because she abused illegal
substances, had mental health issues, engaged in domestic violence, and
neglected the child. The juvenile court found the child dependent and set
the case plan as family reunification. ADES offered Mother various
services, including substance abuse treatment, urinalysis testing,
psychological evaluation, parent aide services, and visitation.
¶3 Mother failed to consistently participate in reunification
services, and in October 2013 the juvenile court approved ADES’s request
to change the case plan to severance and adoption. ADES then filed a
motion for termination based on chronic substance abuse and nine
months’ time-in-care.
¶4 On November 18, 2013, the juvenile court held an initial
severance hearing where the court provided Mother with a copy of Form
III, Notice to Parent in Termination Action, which informed Mother of the
potential consequences for failing to appear at a termination pretrial
conference. Mother confirmed that she understood the contents of the
notice. The court set the matter for mediation on January 7, 2014, and a
subsequent pretrial conference on January 30, 2014.
¶5 On January 30, 2014, the juvenile court commenced the
pretrial conference at 9:06 a.m. Mother’s counsel informed the court that
she had received two voicemail messages earlier that morning from
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KIMBERLY B. v. ADCS, P.B.
Decision of the Court
Mother stating that the individual from Southwest Behavioral Support,
who had planned to assist Mother with transportation to the hearing, told
Mother the prior evening at 5:00 p.m. that he would be unable to take her
to the pretrial conference due to an emergency. Mother’s counsel also
stated that the 8:30 a.m. hearing was “too early for [Mother] to get here
with the bus.” The court tried unsuccessfully to contact Mother and the
individual from Southwest Behavioral Support.
¶6 ADES then asked the court to proceed with conducting a
termination hearing in Mother’s absence, explaining Mother had also
failed to appear at the scheduled mediation and had notice of the
consequences for her failure to appear at the pretrial conference. Mother’s
counsel acknowledged that Mother had received ADES’s notice of
hearing, but objected to proceeding without Mother because she had no
transportation to the hearing. ADES responded that Mother had been
admonished that failure to appear may result in a default, that she did not
appear at the mediation as scheduled, and that she had contacted a
caseworker stating she “had relapsed and wanted another three months to
work the case.” The court then granted ADES’s request to proceed with
the hearing in absentia.
¶7 ADES presented testimony from a caseworker regarding
Mother’s continuing substance abuse issues, her admission that she
relapsed in December 2013, and that she does not have stable housing or
income. The caseworker also testified that Mother declined her offer of
transportation to the pretrial conference. At the conclusion of the hearing,
the court stated its findings on the record and granted ADES’s motion for
termination. Mother filed a timely notice of appeal. 2
2 Although Mother filed her notice of appeal prior to entry of the
signed severance order, we have jurisdiction to consider her appeal. See
Craig v. Craig, 227 Ariz. 105, 107, ¶ 13, 253 P.3d 624, 626 (2011) (confirming
the “limited exception to the final judgment rule that allows a notice of
appeal to be filed after the trial court has made its final decision, but
before it has entered a formal judgment, if no decision of the court could
change and the only remaining task is merely ministerial”) (citation
omitted).
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KIMBERLY B. v. ADCS, P.B.
Decision of the Court
DISCUSSION
¶8 Mother’s sole argument on appeal is that the juvenile court
violated her right to due process by conducting the termination hearing in
her absence because she was unable to attend due to a lack of
transportation.
¶9 We review alleged constitutional violations de novo. See State
v. McGill, 213 Ariz. 147, 159, ¶ 53, 140 P.2d 930, 942 (2006). While we
acknowledge that termination cases involve “[t]he fundamental liberty
interest of natural parents in the care, custody, and management of their
child,” Santosky v. Kramer, 455 U.S. 745, 753 (1982), these parental rights
are “not absolute.” See Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246,
248, ¶ 12, 995 P.2d 682, 684 (2000). “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, 110 P.3d 1013, 1018 (2005) (quoting Santosky, 455 U.S. at 754).
Among these requirements are notice and the opportunity to be heard.
See Huck v. Haralambie, 122 Ariz. 63, 65, 593 P.2d 286, 288 (1979).
¶10 It is undisputed that Mother had prior notice of the pending
motion for termination of her parental rights and the scheduled pretrial
conference. Mother was also given notice that certain rights could be
waived if she failed to attend the pretrial conference without
demonstrating good cause. See, e.g., Ariz. Rev. Stat. (A.R.S) § 8–535(E)(3)
(“At the initial [termination] hearing, the court shall . . . [i]nstruct the
parent that the failure to appear at the pretrial conference . . . may result in
an adjudication terminating the parent-child relationship as to a parent
who does not appear.”). Specifically, Form III of the Arizona Rules of
Procedure for the Juvenile Court states in pertinent part:
You are required to attend all termination hearings. If you
cannot attend a court hearing, you must prove to the Court
that you had good cause for not attending. If you fail to
attend the . . . Pre–Trial Conference . . . without good cause,
the Court may determine that you have waived your legal
rights and admitted the grounds alleged in the motion or
petition for termination. The Court may go forward . . . in
your absence, and may terminate your parental rights to
your child based on the record and evidence presented.
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KIMBERLY B. v. ADCS, P.B.
Decision of the Court
At the hearing on November 13, 2013, a copy of Form III was provided to
Mother and she acknowledged that she read and understood it. The
minute entry from that hearing also included a notice that “[i]f a party
fails to appear for the Pretrial Conference, the failure to appear may be
deemed as an admission to all the facts in the petition and the Court may
proceed to an adjudication of the ultimate issues.” Mother therefore
received notice of the consequences for failing to appear.
¶11 Furthermore, notwithstanding her failure to appear at the
pretrial conference, Mother was given the opportunity to be heard
through her counsel, who attended the hearing, objected to ADES’s
motion to proceed in absentia, and cross-examined the caseworker. See
Christy A. v. Ariz. Dep’t of Econ. Sec., 217 Ariz. 299, 307, ¶ 25, 173 P.3d 463
(App. 2007) (“In the . . . scenario where 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.”). Accordingly, the juvenile court did not violate
Mother’s right to due process by conducting the termination hearing in
her absence.
CONCLUSION
¶12 We affirm the juvenile court’s order terminating Mother’s
parental rights to the child.
:gsh
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