Opinion
No. 2 CA-JV 2018-0160
12-24-2018
KAMORRA R., Appellant, v. MARK G., MELISSA G., AND C.R., Appellees.
COUNSEL The Hopkins Law Office P.C., Tucson By Cedric Martin Hopkins Counsel for Appellant Arizona Child & Family Law, Tucson By Uri G. Palmer Counsel for Appellees Mark G. and Melissa G.
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NOT FOR PUBLICATION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 Pima County
No. S20180055
The Honorable Deborah Pratte, Judge Pro Tempore
AFFIRMED
COUNSEL The Hopkins Law Office P.C., Tucson
By Cedric Martin Hopkins
Counsel for Appellant Arizona Child & Family Law, Tucson
By Uri G. Palmer
Counsel for Appellees Mark G. and Melissa G.
MEMORANDUM DECISION
Presiding Judge Staring authored the decision of the Court, in which Chief Judge Eckerstrom and Judge Vásquez concurred. STARING, Presiding Judge:
¶1 Kamorra R. seeks review of the juvenile court's order terminating her parental rights to her daughter, C.R., born October 2008, in a private severance proceeding initiated by C.R.'s paternal aunt and uncle, Melissa G. and Mark G. She argues that she did not have "proper notice" of the initial severance hearing and that her trial counsel was ineffective in failing to contact her and advise her of the hearing. We affirm.
¶2 In March 2018, Melissa and Mark filed a private severance petition seeking the termination of Kamorra's parental rights to C.R. On April 10, Kamorra was served with the petition and a notice of hearing stating the initial severance hearing was set for May 31 at 9:00 a.m. Kamorra was in jail at the time she was served. The notice of hearing advised: "your failure to personally appear . . . without good cause shown may result in a finding that you have waived your legal rights and admitted the allegations in the Petition," and that the "hearing may go forward in your absence and may result in a termination of your parental rights."
They also sought to terminate the parental rights of C.R.'s father. The juvenile court terminated his parental rights, and he is not a party to this appeal.
¶3 Kamorra did not appear at the May 31 hearing. The juvenile court "preserve[d]" her nonappearance, noting she had been "properly served." After taking testimony regarding best interests, the court continued the hearing to August 2. The following week, the court appointed counsel. Apparently having learned that Kamorra was now in the custody of the Arizona Department of Corrections (ADOC), the court also entered an order allowing Kamorra to appear telephonically at the August 2 hearing and directing ADOC to allow Kamorra "to have telephone access" for the hearing and to allow her counsel to "place a legal call" to her before the hearing.
¶4 Kamorra did not appear at the August 2 hearing. Her counsel stated that he had been unable to reach her because she had been released from ADOC and that he had "made some efforts to contact some family members to get a message out to her," but had not received a return call and did not know if she had received the messages. He asked the juvenile court to continue the hearing thirty days to give him more time to locate Kamorra. The court found Kamorra had been properly notified of the first hearing and nonetheless had not attempted to contact the court or counsel. The court concluded she had not shown good cause for her failure to appear and thus had "waived her legal rights to contest this matter and has admitted the allegations" in the termination petition. The court granted the termination petition, concluding there was clear and convincing evidence supporting the grounds for termination and that termination was in C.R.'s best interests. This appeal followed.
¶5 When a parent fails to appear for an initial termination hearing, the juvenile court may proceed if the parent had adequate notice and did not demonstrate good cause for being absent. See Logan B. v. Dep't of Child Safety, 244 Ariz. 532, ¶ 20 (App. 2018); see also Ariz. R. P. Juv. Ct. 64(C). The juvenile court is in the best position to determine "what constitutes good cause for failure to appear." Bob H. v. Ariz. Dep't of Econ. Sec., 225 Ariz. 279, ¶ 12 (App. 2010). To show good cause, a parent must "show evidence of a legitimate reason or excuse for her failure to appear." Trisha A. v. Dep't of Child Safety, 245 Ariz. 24, ¶ 28 (App. 2018).
In the juvenile court, Kamorra did not ask to set aside the judgment or otherwise expressly argue she had good cause for her failure to appear. Her counsel merely stated she had not been present to "know this hearing was set" and thus might lack "actual notice" of the hearing. Because Kamorra's claim fails in any event, we need not determine if her failure to clearly raise this issue below constitutes waiver.
¶6 We can find no error in the juvenile court's finding that Kamorra had not demonstrated good cause for her absence from either hearing. Despite having adequate notice of the exact date and time of the May 31 hearing, she made no effort to contact the court. Although she asserts she could not do so because she was incarcerated, she cites no evidence suggesting her incarceration was an insurmountable barrier to contacting the court before May 31.
¶7 Even if we agreed Kamorra had good cause to be absent from the May 31 hearing, she has demonstrated no good cause for her absence from the August 2 hearing. She acknowledges she was released from confinement weeks before that hearing and, again, made no effort to contact the court despite knowing she had missed the May 31 hearing. Cf. Copeland v. Ariz. Veterans Mem'l Coliseum & Exposition Ctr., 176 Ariz. 86, 91 (App. 1993) (concluding party that "took no action and apparently failed to ascertain the status of the case" failed to demonstrate necessary diligence). And, although Kamorra seems to assert she did not have adequate notice of the August 2 hearing, she cites no authority, and we find none, suggesting the court was required to ensure she had actual notice in light of her failure to appear for the May 31 hearing and her failure to make any effort to learn the status of her case. Thus, she has waived this argument and we do not address it further. See Christina G. v. Ariz. Dep't of Econ. Sec., 227 Ariz. 231, n.6 (App. 2011) (failure to develop argument on appeal results in abandonment and waiver of issue).
¶8 Kamorra also asserts her appointed counsel was ineffective for "fail[ing] to make contact with [her] while she was incarcerated." Although no Arizona court has finally decided the issue, this court has suggested that the ineffective assistance of counsel in termination proceedings could constitute reversible error. See John M. v. Ariz. Dep't of Econ. Sec., 217 Ariz. 320, ¶¶ 17-18 (App. 2007); In re Maricopa Cty. Juv. Action No. JS-4942 , 142 Ariz. 240, 242 (App. 1984).
¶9 A criminal defendant raising a claim of ineffective assistance must demonstrate "both that counsel's representation fell below prevailing professional norms and that a reasonable probability exists that, but for counsel's errors, the result of the proceeding would have been different." John M., 217 Ariz. 320, ¶ 8 (citing Strickland v. Washington, 466 U.S. 668, 690, 694 (1984)). Assuming, without deciding, that the same standard applies here, Kamorra has not met her burden. She cites no authority suggesting that counsel's failure to contact her before her release fell below prevailing professional norms. Nor has she asked that we remand the case to the juvenile court for her to present evidence that could support that conclusion. Thus, her claim of ineffective assistance fails.
¶10 We affirm the juvenile court's order terminating Kamorra's parental rights to C.R.