In Re Term of Parental Rights as to E.K.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
IN RE TERMINATION OF PARENTAL RIGHTS AS TO E.K., J.K., and
W.A.
No. 1 CA-JV 22-0273
FILED 6-13-2023
Appeal from the Superior Court in Mohave County
No. L8015JD202107040
The Honorable Megan A. McCoy, Judge
AFFIRMED
COUNSEL
Taylor N. Vanderlinden, Goodyear
Appellant
Law Offices of Janelle A. McEachern, Chandler
By Janelle A. McEachern
Advisory Counsel for Appellant
Arizona Attorney General’s Office, Tucson
By Dawn R. Williams
Counsel for Appellee Department of Child Safety
MEMORANDUM DECISION
Presiding Judge Cynthia J. Bailey delivered the decision of the Court, in
which Judge Jennifer B. Campbell and Judge David D. Weinzweig joined.
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IN RE TERM OF PARENTAL RIGHTS AS TO E.K. et al.
Decision of the Court
B A I L E Y, Judge:
¶1 Taylor V. (“Mother”) appeals the termination of her parental
rights to E.K., J.K., and W.A. (“the children”). For the following reasons,
we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 The Department of Child Safety (“DCS”) filed a dependency
petition in November 2021, alleging that due to abuse and neglect, the
children were dependent as to Mother. Specifically, DCS alleged that
Mother locked herself in her room, leaving the older children to care for
W.A., to find their own food, and that “more often than not [the children]
go without dinner because Mother does not feed the[m].”
¶3 DCS also alleged that Mother 1) engaged in self-harm that
prevented her from caring for her children, 2) abused the children by, for
instance, grabbing, squeezing and smacking E.K.’s face, leaving a visible
scratch, 3) screamed in the children’s presence that “she wishe[d] Father
would die in a car accident,” and 4) displayed “erratic and dangerous
behavior that puts the children at significant risk of harm.”
¶4 The superior court found the children dependent as to Mother
in December 2021. In October 2022, DCS petitioned to terminate Mother’s
parental rights, under the history of chronic substance abuse and nine-
months’ time-in-care grounds. DCS alleged that Mother had not fully
participated in reunification services and had admitted she was “high” on
fentanyl during visits with the children. DCS sent Mother notice that:
Your failure to personally appear in court at the initial
hearing, pretrial conference, status conference, or termination
adjudication, without good cause shown, may result in a
finding that you have waived your legal rights and have
admitted the allegations in the Motion. In addition, if you fail
to appear without good cause, the hearing may go forward in
your absence and may result in termination of your parental
rights based upon the record and the evidence presented to
the Court.
¶5 Mother did not appear at the time set for the initial
termination hearing. Mother’s counsel informed the court that, on the day
before the hearing, she had left Mother a voicemail at her most recent phone
number and had not heard back. Children’s counsel told the court she had
received an email from the Legal Defender’s Office saying Mother had a
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IN RE TERM OF PARENTAL RIGHTS AS TO E.K. et al.
Decision of the Court
criminal sentencing hearing in another court that same day. The court took
notice that Mother’s sentencing hearing was set to begin an hour later than
the termination hearing. The court found Mother had notice of the
consequences of her failure to appear, had failed to appear, and had
therefore admitted the allegations in the petition. The court then set an
evidentiary hearing for that same morning.
¶6 At the hearing, Mother’s counsel told the court she sent a text
message to Mother that the evidentiary hearing would take place without
her if she did not appear. Mother did not appear.
¶7 A DCS specialist testified that during the dependency Mother
visited the children while intoxicated, engaged in outbursts that were
consistent with ongoing substance abuse, and admitted continued fentanyl
use. The specialist noted that Mother refused to test for substances after
July 2022 and failed to complete any substance abuse services. The
specialist testified that Mother failed to engage in services to remedy the
circumstances leading to the children’s placement, domestic violence and
substance abuse, by failing to complete “couples counseling, individual
counseling, parenting classes, [a] psychological evaluation, [a] substance
abuse assessment, urine analysis [sic] testing, visitation, and the Nurturing
Parenting Program.”
¶8 In addressing placement, the specialist testified that the
children were in safe and stable homes with adoptive extended family
members. The court found on this record that the evidence supported
termination on the grounds of chronic substance abuse and nine-months’
time-in-care. The court later entered DCS’s proposed written findings of
fact and conclusions of law, terminating Mother’s parental rights.
¶9 Mother timely appealed. Mother’s appellate counsel filed an
avowal pursuant to Rule 607(e) of the Rules of Procedure for the Juvenile
Court that she could find no non-frivolous issue to raise on appeal. Mother
then filed an opening brief, pro se. We have jurisdiction pursuant to
Arizona Revised Statutes (“A.R.S.”) § 8-235(A).
DISCUSSION
¶10 Mother’s opening brief is deficient by failing to cite relevant
case law or provide citations to the record in support of her appeal. See
ARCAP 13(a)(5), (7). But considering our preference for resolving cases on
their merits, we address Mother’s argument. See Clemens v. Clark, 101 Ariz.
413, 414 (1966).
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IN RE TERM OF PARENTAL RIGHTS AS TO E.K. et al.
Decision of the Court
¶11 Mother is entitled to “fundamentally fair procedures.” Kent
K. v. Bobby M., 210 Ariz. 279, 284, ¶ 24 (2005) (quoting Santosky v. Kramer,
455 U.S. 745, 754 (1982)). But a parent who fails to appear without good
cause after being warned of the consequences may be defaulted, and the
allegations against her taken as true, without offending due process. See
Brenda D. v. Dep’t of Child Safety, 243 Ariz. 437, 443-44, ¶¶ 22-24 (2018).
¶12 Mother argues good cause precluded her appearance at the
initial hearing because her criminal sentencing hearing was set at the same
time. To prevail in setting aside the termination order on this basis, Mother
must show 1) good cause for her failure to appear and 2) “a meritorious
defense” to the termination proceeding. Trisha A. v. Dep’t of Child Safety,
247 Ariz. 84, 89, ¶ 19 (2019).
¶13 The superior court found Mother had no good cause for
failing to appear. We review such a determination for an abuse of
discretion, and we will reverse only if the finding 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)).
¶14 Mother was scheduled to appear for sentencing at 10:30 a.m.,
in Kingman and her initial termination hearing was scheduled at 9:30 a.m.
in Lake Havasu City. Mother concedes in her opening brief that she knew
the date and time of the initial termination hearing but argues that she could
not have attended both the sentencing and the initial hearing and that she
contacted her attorney about the conflict.
¶15 Though Mother may not have been able to attend both
hearings, the record belies her contention that she attempted to resolve the
conflict, and instead shows that she failed to communicate with or respond
to her counsel. Mother’s counsel represented that Mother did not speak to
her about the termination hearing, did not respond to a phone call the day
prior, and did not respond to counsel’s last entreaty to appear at the
evidentiary hearing. Thus, Mother’s actions were not those of “a
reasonably prudent person in the same circumstances” and she cannot
establish good cause for her failure to appear. Christy A. v. Ariz. Dep’t. of
Econ. Sec., 217 Ariz. 299, 304, ¶ 16 (App. 2007) (quoting Ulibarri v.
Gerstenberger, 178 Ariz. 151, 163 (App. 1993)).
¶16 Moreover, Mother has not shown any meritorious defense.
The superior court had reasonable evidence that Mother was unable to
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IN RE TERM OF PARENTAL RIGHTS AS TO E.K. et al.
Decision of the Court
discharge parental responsibilities due to her substance use, including her
admission to DCS that she used fentanyl, and evidence that her addiction
would continue for a prolonged indeterminate period. See A.R.S. § 8-
533(B)(3). The court had reasonable evidence to conclude that termination
would be in the children’s best interest based on their adoptive placements.
See Alma S. v. Dep’t of Child Safety, 245 Ariz. 146, 151, ¶ 14 (2018). We find
no error.
¶17 Mother also argues that her post-termination participation in
services while incarcerated merits a reversal. But we cannot consider a
parent’s post-termination efforts, however laudable, in reviewing
termination cases. See Marina P. v. Ariz. Dep’t of Econ. Sec., 214 Ariz. 326,
330, ¶ 22 (App. 2007). This argument therefore fails.
CONCLUSION
¶18 We affirm.
AMY M. WOOD • Clerk of the Court
FILED: JT
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