Opinion
No. 2 CA-JV 2018-0013
05-11-2018
APRIL M., Appellant, v. DEPARTMENT OF CHILD SAFETY AND B.M. Appellees.
COUNSEL Emily Danies, Tucson Counsel for Appellant Mark Brnovich, Arizona Attorney General By Cathleen E. Fuller, Assistant Attorney General, Tucson Counsel for Appellee Department of Child Safety
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f); Ariz. R. P. Juv. Ct. 103(G).
Appeal from the Superior Court in Gila County
No. S0400JD201700001
The Honorable Timothy M. Wright, Judge
AFFIRMED
COUNSEL
Emily Danies, Tucson
Counsel for Appellant
Mark Brnovich, Arizona Attorney General
By Cathleen E. Fuller, Assistant Attorney General, Tucson
Counsel for Appellee Department of Child Safety
MEMORANDUM DECISION
Presiding Judge Vásquez authored the decision of the Court, in which Judge Espinosa and Judge Eppich concurred.
VÁSQUEZ, Presiding Judge:
¶1 Appellant April M. challenges the juvenile court's order of December 29, 2017, terminating her parental rights to B.M., born February 2016, on grounds of April's chronic drug use and inability to remedy the circumstances causing the children to remain in a court-ordered, out-of-home placement for six months or more. See A.R.S. § 8-533(B)(3), (8)(b). On appeal, April argues the court erred in denying her motion to continue the severance hearing and proceeding in her absence.
¶2 We view the evidence in the light most favorable to upholding the court's order. See Manuel M. v. Ariz. Dep't of Econ. Sec., 218 Ariz. 205, ¶ 2 (App. 2008). In January 2017, the Department of Child Safety (DCS) received a report of child neglect, and a search of April's home revealed drug paraphernalia, along with filthy living conditions. April was arrested on paraphernalia charges, and tested positive for methamphetamine; B.M. was taken into DCS custody. The juvenile court found B.M. dependent that same month, after April submitted to the dependency.
¶3 In August 2017, DCS filed a motion for termination of April's parental rights, alleging B.M., then one-and-a-half years old, had been in a court-ordered, out-of-home placement for six months or longer. And, despite DCS's efforts to provide services, including individual counseling, visitation, parent aide, random drug testing, parenting classes, and drug treatment, she had not remedied the circumstances that caused B.M. to be in care. DCS also alleged April was unable to discharge her parental responsibilities due to chronic drug abuse and there were reasonable grounds to believe that condition would continue for a prolonged time.
¶4 A severance trial was scheduled for November 9, 2017. In October 2017, April signed a copy of "Form 3," explaining she was "required to attend all termination hearings" and if she could not attend, she "must prove to the Court that [she] had good cause for not attending." If she failed to appear, the form stated, "[t]he Court may go forward with
the Termination Adjudication Hearing in your absence, and may terminate your parental rights to your child based on the record and evidence presented." The court also orally cautioned April that failure to appear could result in the court proceeding without her. The trial was subsequently rescheduled twice, and April signed a new "Form 3" as to each date. The final date was December 28.
¶5 On December 27, April filed a motion to continue the trial. Her attorney explained that April had informed him "she is entering an inpatient drug rehabilitation center" and therefore would "not be able to be present at the hearing." The juvenile court denied the motion, and the following day counsel appeared and discussed April's absence with the court. He confirmed April had gone into rehabilitation by choice, not pursuant to court order. He explained that April was "trying to remedy the circumstance that brought [B.M.] into care and that was the basis of the Motion to Continue." The court concluded April was voluntarily absent and proceeded with the trial in her absence.
¶6 A DCS case specialist testified that B.M. tested positive for methamphetamine when she was taken into care in January 2017. At the time, she was less than a year old. He testified further that April had "made very little effort to correct the reasons why [B.M.] was brought to care." He testified that April had been closed out of programs multiple times and avoided drug testing and that DCS believed her substance abuse would continue "for a prolonged indeterminate period." He explained that her compliance with drug testing was "inconsistent at most." He further testified that B.M. was adoptable and would benefit from termination as it would give her "stability, permanency," and "a chance to thrive and have a healthy life."
¶7 On appeal, April contends the juvenile court "erred in denying [her] motion to continue" and in "proceed[ing] in absentia . . . as her absence was for good cause." We review the denial of a motion to continue a severance trial for an abuse of discretion. In re Yavapai Cty. Juv. Action No. J-9365, 157 Ariz. 497, 499 (App. 1988). Pursuant to Rule 46(F), Ariz. R. P. Juv. Ct., "[m]otions to continue shall be granted only upon a showing of good cause." "The juvenile court is in the best position to make discretionary findings such as what constitutes good cause for failure to appear." Bob H. v. Ariz. Dep't of Econ. Sec., 225 Ariz. 279, ¶ 12 (App. 2010).
¶8 April cites only her entry into a substance abuse treatment facility on the eve of trial as good cause for her failure to appear. But as
described above, she entered the program voluntarily, not pursuant to a court order. And nothing else in the record contradicts the juvenile court's conclusion her absence was voluntary. We therefore cannot say the court abused its discretion in concluding April failed to show good cause for a continuance.
¶9 Likewise, to the extent April's argument can be read to challenge the juvenile court's decision to proceed in her absence, we conclude it did not abuse its discretion. See Adrian E. v. Ariz. Dep't of Econ. Sec., 215 Ariz. 96, ¶ 15 (App. 2007). Pursuant to Rule 65(C)(6)(c), Ariz. R. P. Juv. Ct., if a parent fails to appear, and has been properly advised of the hearing and the consequences of failure to appear, the court may proceed without them and determine the matter "based upon the record and evidence presented." April does not contend she was unaware of the trial date or the consequences of failure to appear. And, as discussed above, her absence was not involuntary.
¶10 Finally, April does not challenge the juvenile court's finding that DCS sustained its burden of proving the alleged grounds for severance or that severance was in B.M.'s best interests. In any event, the evidence presented to the juvenile court, material portions of which are discussed above, adequately supported the grounds alleged and a best-interest finding. See A.R.S. §§ 8-533(B), 8-537(B); see also Kent K. v. Bobby M., 210 Ariz. 279, ¶ 41 (2005).
¶11 Therefore, we affirm the juvenile court's order terminating April's parental rights.