Opinion
No. 1 CA-JV 14-0245
03-05-2015
RON C., Appellant, v. DEPARTMENT OF CHILD SAFETY, H.C., Defendants/Appellees.
COUNSEL The Stavris Law Firm, PLLC, Scottsdale By Christopher Stavris Counsel for Appellant Arizona Attorney General's Office, Mesa By Erick K. Knobloch Counsel for Appellee Department of Child Safety
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. JD511234
The Honorable Karen L. O'Connor, Judge
AFFIRMED
COUNSEL The Stavris Law Firm, PLLC, Scottsdale
By Christopher Stavris
Counsel for Appellant
Arizona Attorney General's Office, Mesa
By Erick K. Knobloch
Counsel for Appellee Department of Child Safety
MEMORANDUM DECISION
Judge Michael J. Brown delivered the decision of the Court, in which Presiding Judge Samuel A. Thumma and Judge Patricia A. Orozco joined. BROWN, Judge:
¶1 Ron C. ("Father") appeals the juvenile court's order terminating his parental rights to his daughter ("the child"). Father argues the court deprived him of due process. Because we conclude the court acted within its discretion in conducting a termination hearing in Father's absence, we affirm.
BACKGROUND
¶2 Father and Ingrid B. ("Mother") are the biological parents of the child, born in 2013. Mother has a history of substance abuse and used morphine, codeine, and heroin during her pregnancy. At the time of birth, the child's meconium tested positive for morphine and codeine. Father has a similar history of substance abuse and provided Mother with drugs during her pregnancy.
Although Mother's parental rights have also been terminated, she is not a party to this appeal.
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¶3 On August 11, 2013, the child was removed from parents' care and taken into the custody of DCS. A petition for dependency was filed two days later. On August 20, the juvenile court held a preliminary protective hearing at which Father accepted service and waived any defects. "Form I, Notice to Parent in Dependency Action," was read and provided to Father. It reads in pertinent part as follows:
You are required to attend all court hearings. If you cannot attend a hearing, you must prove to the court that you had good cause for not attending. If you fail to attend the Settlement Conference, Pre-Trial Conference, or Dependency Adjudication Hearing without good cause, the Court may determine that you have waived your legal rights and admitted the allegations in the dependency petition. The hearings may go forward in your absence, and the Court may
find your child is dependent based on the record and evidence presented.Ariz. R.P. Juv. Ct. Form I. Father confirmed in writing that he received a copy of the form and understood its contents.
If the Court determines your child is dependent, there will be further proceedings that you must attend. If you fail to attend further proceedings without good cause, the Court may terminate your parental rights or appoint a permanent guardian for your child.
¶4 Father was offered reunification services and directed to participate in substance abuse assessment and treatment, individual counseling, parenting classes, and supervised visitations with the child. Father did not, however, fully participate in the services offered to him. The juvenile court subsequently found the child dependent as to Father.
¶5 In March 2014, DCS moved for termination of Father's parental rights under Arizona Revised Statutes ("A.R.S.") sections 8-533(B)(3) (chronic drug abuse) and -533(B)(8)(b) (six months out-of-home care). At the initial severance hearing, Father contested the motion. "Form III, Notice to Parent in Termination Action" was read and provided to Father. This form also stated that Father was to attend all hearings and failure to attend could result in a waiver of legal rights and admission to the allegations included in the motion for termination. The form also explained that hearings could proceed in Father's absence, resulting in termination of parental rights based on the record and evidence presented.
¶6 On August 28, 2014, the court held a pretrial conference regarding the termination of parental rights. Father was aware of the hearing and planned to "call in" but failed to do so. Father's attorney stated that she was "not positive" Father had the right phone number for the courtroom where the hearing was taking place, because she had given Father a different phone number. Counsel for DCS requested to proceed because Father had been present when the court had scheduled the hearing. Based on Father's awareness of the date and time of the hearing, and in the absence of good cause, the court determined it would proceed with the hearing. Father's attorney objected, however, the court noted that Father could have contacted either the case manager or his attorney, but had not done so.
¶7 DCS presented the testimony of Victoria Bahe-Smith, the case manager assigned to Father's case. Bahe-Smith recounted the services DCS had offered to Father in an attempt to reunite him with the child. DCS offered parenting classes, visitation, substance abuse programs, drug testing services, and psychological evaluations to help Father maintain sobriety and appropriately discharge his parental duties. Bahe-Smith opined that Father would be unable to discharge his parental responsibilities based on his history of chronic substance abuse and that the condition would continue for a prolonged, indeterminate period. She also believed that Father had substantially neglected or willfully refused to remedy the circumstances that caused the child to be placed in out-of-home care. Bahe-Smith further testified that severance would be in the child's best interests.
¶8 The juvenile court granted DCS's motion for termination on both of the grounds alleged and stated its findings on the record. Father timely appealed.
DISCUSSION
¶9 Father asserts he was denied due process when the juvenile court, in his absence, proceeded to terminate his parental rights at the pretrial conference. Specifically, Father asserts the court erred because he was not given the correct phone number to be able to participate in the conference telephonically.
¶10 A parent's interest in the parent-child relationship "may not be changed without due process and compliance with the statutes involved." Maricopa Cnty. Juv. Action No. JS-734, 25 Ariz. App. 333, 338 (App. 1975). Due process requires that reasonably calculated notice be provided to interested parties in the action, affording them an opportunity to present any objections. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). In a termination proceeding, due process is satisfied when a parent is given notice and has "an opportunity to be heard or to defend." Pima Cnty. Juv. Action No. S-949, 131 Ariz. 100, 101 (App. 1981). We review constitutional claims de novo because they involve questions of law. See Prince v. City of Apache Junction, 185 Ariz. 43, 45 (App. 1999), superseded by statute on other grounds as recognized in MacKinney v. City of Tucson, 231 Ariz. 584, 586, ¶ 7 (App. 2013).
¶11 Arizona's statutes and juvenile court rules establish the procedures the juvenile court must follow in a termination proceeding to provide parents with notice and the opportunity to defend the allegations against them. See A.R.S. § 8-863; Ariz. R.P. Juv. Ct. 64 through 66. A motion for termination must be served on all parties as prescribed in Arizona Rule of Civil Procedure 5(c) at least ten days before the initial hearing. A.R.S. § 8-863(A). A notice of hearing shall accompany the motion and include the "location, date and time of the initial termination hearing." Ariz. R.P. Juv. Ct. 64(C). Additionally, the notice shall inform the parent "that failure to appear at the initial hearing, pretrial conference, status conference or termination adjudication hearing, without good cause, may result in a finding that the parent[]" has waived his legal rights and admits the allegations in the motion or petition. Ariz. R.P. Juv. Ct. 64(C).
¶12 Rules 65 and 66 establish the procedures for moving forward in a parent's absence at the initial termination hearing and termination adjudication hearing, respectively. See Ariz. R.P. Juv. Ct. 65, 66. This court has recognized that "Rule 64(C) implicitly authorizes the juvenile court, in accordance with the procedure described in Rules 65(C)(6)(c) and 66(D)(2), to terminate the parental rights of a parent who, "without good cause, fails to appear "for a status conference on a pending motion for termination." Adrian E. v. Arizona Dep't of Econ. Sec., 215 Ariz. 96, 100, ¶ 12 (App. 2007).
¶13 Father does not dispute that he was properly served with notice of the pretrial conference and that he read and understood Form III. Rather, Father argues his due process right to be heard was violated because he was not provided with the correct telephone number for the superior court division in which the conference was held so that he could appear by phone instead of in person. Because Father had notice of the pretrial conference and was informed of the consequences for failure to appear, the court acted within its discretion when it found that Father had waived his legal rights and moved forward. Ariz. R.P. Juv. Ct. 64(C); Adrian E., 215 Ariz. at 100, ¶ 12.
¶14 Additionally, Father failed to make a showing of good cause for his absence. Good cause requires a showing of "mistake, inadvertence, surprise or excusable neglect" and is judged from the position of a reasonably prudent person. Christy A. v. Ariz. Dep't of Econ. Sec., 217 Ariz. 299, 304, ¶ 16 (App. 2007). "[A] finding of good cause for a failure to appear is largely discretionary." John C. v. Sargeant, 208 Ariz. 44, 47, ¶ 13 (App. 2004), superseded by statute on other grounds as recognized in Ariz. Dep't of Econ. Sec. v. Superior Court (Reinstein), 214 Ariz. 209, 211, ¶ 4 (App. 2007). The juvenile court found that the possibility of having the incorrect phone number did not constitute good cause for Father's failure to appear. Father could have attempted to call his attorney or the case manager to alert them that he tried to contact the court but, according to the record, Father did not do so even though he had their phone numbers. Furthermore, Father does not assert that he took any other action to bring the communication problem to the court's attention, even though the court told Father's attorney that "if there is good cause, you can certainly bring that to my attention after today's date and we can talk about vacating the . . . findings that are made today." No such showing was made and no such motion was filed. We conclude that the court acted within its discretion in finding that Father failed to establish good cause for his failure to appear.
¶15 When a parent has been properly served, notified, and informed of the consequences of non-appearance, the juvenile court may move forward in the parent's absence and terminate parental rights based on the record and evidence presented. Ariz. R.P. Juv. Ct. 64, 65(C)(6)(c), 66(D)(2). Here, the court based its determination on Father's continued drug use, noncompliance with court ordered services, and refusal to participate in reunification services offered by DCS. The record supports the court's decision to grant the motion for termination.
CONCLUSION
¶16 We affirm the juvenile court's order terminating Father's parental rights.