Opinion
No. 1 CA-JV 16-0237
12-30-2016
MICHELLE D., Appellant, v. DEPARTMENT OF CHILD SAFETY, G.G., F.G., Appellees.
COUNSEL David W. Bell Attorney at Law, Higley By David W. Bell Counsel for Appellant Arizona Attorney General's Office, Mesa By Ashlee N. Hoffmann Counsel for Appellee DCS
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
Appeal from the Superior Court in Maricopa County
No. JD528243
The Honorable Timothy J. Ryan, Judge
AFFIRMED
COUNSEL
David W. Bell Attorney at Law, Higley
By David W. Bell
Counsel for Appellant
Arizona Attorney General's Office, Mesa
By Ashlee N. Hoffmann
Counsel for Appellee DCS
MEMORANDUM DECISION
Judge Peter B. Swann delivered the decision of the court, in which Presiding Judge Andrew W. Gould and Judge Patricia A. Orozco joined.
SWANN, Judge:
¶1 Michelle D. ("Mother") appeals the Maricopa County Superior Court's severance of her parental rights to G.G. and F.G. (collectively "the Children"). For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 In November 2014, the Department of Child Safety ("the Department") filed a dependency petition against Mother concerning G.G., F.G., and two other children, alleging substance abuse, neglect, and mental health issues. In February 2015, the superior court held an initial dependency hearing and found all four children dependent as to Mother. Mother did not appear at the hearing or present good cause for her absence.
¶3 On May 2, 2016, Mother missed a court-ordered mediation session and appeared telephonically without permission at a pretrial conference. The court set a second pretrial conference for June 6, 2016, and a trial for September 12, 2016. Mother did not appear at the June 6 conference, and the superior court adjudicated her rights in absentia. The superior court severed her rights, and she timely appeals.
DISCUSSION
¶4 Mother argues that she had good cause for not appearing and that she was denied due process when the superior court adjudicated her rights in absentia after her failure to appear. Absent good cause, failure to appear at an initial termination hearing or pretrial conference "may result in an adjudication terminating the parent-child relationship." A.R.S. § 8-535(A).
I. MOTHER'S GOOD-CAUSE ARGUMENTS ARE NOT WAIVED.
¶5 Though the Department contends that Mother waived her arguments on good cause by not filing a motion to reconsider, her argument raised on appeal is nearly identical to her counsel's objections at the hearing. See Shawanee S. v. Arizona Dept. of Econ. Sec., 234 Ariz. 174, 179, ¶
16 (App. 2014) (holding that failure to challenge the sufficiency of the Department's reunification services in the juvenile court waives the issue on appeal). Though Mother's attorney did not specifically mention good cause below, it is clear from the context that her attorney was arguing it, and the superior court ruled against her. We therefore consider her argument on appeal.
II. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY FINDING MOTHER LACKED GOOD CAUSE FOR NOT APPEARING.
¶6 Mother argues that she had good cause for not appearing. She claims that she appeared telephonically at the first pretrial conference and that the minute entry from that day only admonished her to appear at trial and not at the second pretrial conference.
¶7 "Whether the facts of a particular case establish 'good cause' is a matter left to the sound discretion of the trial court." Ugalde v. Burke, 204 Ariz. 455, 458, ¶ 10 (App. 2003). We review a trial court's good-cause finding for an abuse of discretion and will affirm unless the superior court's finding is "manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons." Quigley v. City Court of the City of Tucson, 132 Ariz. 35, 37 (App. 1982).
¶8 The superior court noted that Mother's presence was not waived at the June 6 hearing, that Mother failed to appear at the mandatory mediation on May 2, appeared telephonically without permission to the pretrial conference that same day, and had "had several opportunities" to comply with court orders to appear in person but did not. Mother completely missed six out of ten court appearances between January 2015 and June 2016, as well as the mediation. Further, Mother appeared telephonically — though she was supposed to appear physically — at the May 2 pretrial conference where the June 6 pretrial conference was set. The record supports the superior court's finding that Mother lacked good cause for failing to appear.
¶9 Nonetheless, Mother argues the June 6 minute entry's warning about potential waiver for failure to appear only referred to the trial and not the pretrial conference. To the contrary, Mother was advised on March 7 that if she did not appear at the pretrial conference the court could find she waived her rights. Moreover, the May 2 minute entry set a "Conference - Pretrial - Contested Severance" for June 6, 2016, and a "Severance - Contested" for September 12, 2016. The minute entry stated
that Mother must "physically appear" at the "aforesaid Contested Severance Hearing." Particularly given the March 7 warning, Mother was on clear notice that her attendance was required at both hearings.
¶10 Mother next argues, relying on case law interpreting the Federal Rules of Civil Procedure, that the Department's case would not have been prejudiced by proceeding to trial where she might have presented potentially meritorious arguments that severance was not in the Children's best interests. See TCI Group Life Ins. Plan v. Knoebber, 244 F.3d 691, 701 (9th Cir. 2001) (discussing whether a plaintiff's case would be prejudiced by setting aside a default judgment), as amended on denial of reh'g and reh'g en banc (May 9, 2001), overruled on federal preemption grounds by Egelhoff v. Egelhoff ex rel. Breiner, 532 U.S. 141 (2001).
¶11 This is not a civil action. In juvenile proceedings, where time-sensitive interests of children are at issue, the court may proceed in absentia when a party lacks good cause for failing to appear. A.R.S. § 8-863(C). While the facts and circumstances that constitute good cause under § 8-863(C) may be similar to the grounds for setting aside a default judgment under the civil rules, mere neglect does not constitute good cause under any set of rules.
III. MOTHER WAIVED HER RIGHT TO APPEAR.
¶12 Mother contends that her due process rights were violated when the court found that she waived her right to contest the allegations. Due process in severance cases entitles a parent to a hearing and proper notice of that hearing. Matter of the Appeal in Maricopa Cty. Juvenile Action No. JS-4942, 142 Ariz. 240, 242 (App. 1984). If a party has notice of a hearing but does not appear, she has not been denied due process — she has waived her rights. Here, Mother was advised on March 7 and again on May 2 that if she did not appear at the pretrial conference the court could find that she admitted the factual allegations underlying the motion for severance. We find no due process violation.
IV. THERE WAS SUFFICENT EVIDENCE FOR SEVERANCE.
¶13 By failing to appear, Mother waived her right to challenge the factual allegations, though her counsel could participate in the proceedings. See Manuel M. v. Arizona Dept. of Econ. Sec., 218 Ariz. 205, 212, ¶ 23 (App. 2008), as corrected (Apr. 11, 2008). Her absence did not relieve the Department of its duty to provide "the quantum of evidence required to establish the legal grounds for terminating a parent's rights." Id. at 214, ¶ 28. To sever a parent's rights, the Department must show by clear and
convincing evidence at least one of the statutory factors. Mary Ellen C. v. Arizona Dep't of Econ. Sec., 193 Ariz. 185, 190, ¶ 26 (App. 1999); see also A.R.S. § 8-533(B). The Department must also show by a preponderance of the evidence that severance is in the children's best interests. Dominique M. v. Dep't of Child Safety, 240 Ariz. 96, 98, ¶ 7 (App. 2016).
¶14 The case manager testified that the Department offered Mother substance-abuse testing and treatment, housing resources, supervised visitation, parent-aid services, and individual counseling. Matter of Appeal in Yuma Cty. J-88-201, J-88-202, J-88-203, 172 Ariz. 50, 53 (App. 1992) (requiring the Department to make "diligent efforts" to reunite the family). However, Mother did not participate until August 2015 and then only sporadically. The case manager also testified that Mother had "substantially neglected or willfully refused to remedy the circumstances" and that pursuant to a November 2014 court order, the Children had been in an out-of-home placement for over nine months and in care for over fifteen months. A.R.S. § 8-533(B)(8)(a), (c).
¶15 The Children were placed in a potential adoption placement. Demetrius L. v. Joshlynn F., 239 Ariz. 1, 4, ¶ 17 (2016) ("[D]epending on the circumstances, adoption can provide sufficient benefits to support a best-interests finding . . . ."). Mother's attorney could have cross-examined the case manager on the contents of the reports admitted into evidence, or Mother could have challenged the sufficiency of the evidence on appeal. No. JS-4942, 142 Ariz. at 242. She did neither. The evidence supports severance.
CONCLUSION
¶16 For the foregoing reasons, we affirm.