Opinion
No. 1 CA-JV 16-0205
12-13-2016
ANDRE H., Appellant, v. DEPARTMENT OF CHILD SAFETY, A.H., Appellees.
COUNSEL Denise Lynn Carroll, Scottsdale By Denise L. Carroll Counsel for Appellant Arizona Attorney General's Office, Tucson By Daniel R. Huff 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. JD510717
The Honorable Karen L. O'Connor, Judge
AFFIRMED
COUNSEL Denise Lynn Carroll, Scottsdale
By Denise L. Carroll
Counsel for Appellant Arizona Attorney General's Office, Tucson
By Daniel R. Huff
Counsel for Appellee Department of Child Safety
MEMORANDUM DECISION
Presiding Judge Kenton D. Jones delivered the decision of the Court, in which Judge Randall M. Howe and Judge Donn Kessler joined. JONES, Judge:
¶1 Andre H. (Father) appeals the juvenile court's order terminating his parental rights to A.H. (Child). For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
We view the facts in the light most favorable to upholding the juvenile court's order terminating parental rights. Ariz. Dep't of Econ. Sec. v. Matthew L., 223 Ariz. 547, 549, ¶ 7 (App. 2010) (citing Manuel M. v. Ariz. Dep't of Econ. Sec., 218 Ariz. 205, 207, ¶ 2 (App. 2008)).
¶2 Father's seventh child, Child, was born substance-exposed to methadone in September 2015. At the time, Father's parental rights to three of Child's siblings had been severed as a result of his substance abuse, and her three other siblings were dependent and in the care of the Department of Child Safety (DCS). Father was non-compliant with services and had not participated in drug testing since August 2014.
¶3 Child spent six weeks in the neonatal intensive care unit on a morphine drip before she was cleared to leave the hospital. DCS then filed a petition alleging Child was dependent as to Father on the grounds of neglect, substance abuse, and domestic violence. When Father did not appear at the contested dependency hearing in March 2016, the juvenile court adjudicated Child dependent as to Father.
DCS also alleged Child was dependent as to her mother. Her mother did not appear in the action and is not a party to the appeal.
¶4 In April 2016, DCS moved to terminate Father's parental rights to Child, alleging severance was warranted on the ground that Father's parental rights to other children were terminated in the preceding two years as a result of his substance abuse and he remained unable to discharge parental responsibilities for that same reason. See Ariz. Rev. Stat. (A.R.S.) § 8-533(B)(10). An initial severance hearing was scheduled for 9:00 a.m. on May 19, 2016.
Absent material changes from the relevant date, we cite a statute's current version.
¶5 Father was not present when the initial severance hearing began. Father arrived at the close of DCS's case and advised he had written down the start time as 9:30 a.m. But Father's counsel confirmed having sent at least two pieces of correspondence to Father advising of the correct time. The juvenile court found Father had notice of the hearing, had been advised of the consequences of failing to appear, and had not shown good cause for his absence. Thus, the court concluded Father waived his right to contest the allegations of the petition and proceeded to consider the merits of the termination motion.
¶6 After receiving exhibits and testimony from the DCS case worker, the juvenile court found DCS had proven the statutory grounds for severance by clear and convincing evidence and that severance was in Child's best interests by a preponderance of the evidence. See Ariz. R.P. Juv. Ct. 66(C). Accordingly, the court entered an order terminating Father's parental rights to Child. Father timely appealed, and we have jurisdiction pursuant to A.R.S. §§ 8-235(A), 12-120.21(A)(1), -2101(A)(1), and Arizona Rule of Procedure for the Juvenile Court 103(A).
DISCUSSION
¶7 Although the right to the custody and control of one's children is fundamental, it is not absolute. See Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 248, ¶¶ 11-12 (2000). If a parent is properly served with a motion for termination, has notice of a hearing, and is advised of consequences for failing to appear, but the parent does not appear and no good cause is shown for that failure, the juvenile court may find the parent waived his rights and is deemed to have admitted the statutory bases for termination as alleged in the motion. A.R.S. § 8-863(C); see also Ariz. R.P. Juv. Ct. 66(D)(2); Christy A. v. Ariz. Dep't of Econ. Sec., 217 Ariz. 299, 304, ¶ 13 (App. 2007).
¶8 Father argues the juvenile court erred in concluding he lacked good cause for his failure to appear and denied him due process when it proceeded in his absence. Because a parent may waive his right to procedural due process if he fails to appear for certain hearings without good cause, Manuel M., 218 Ariz. at 211, ¶ 19 (citing Ariz. Dep't of Econ. Sec. v. Redlon, 215 Ariz. 13, 17, ¶ 9 (App. 2007)), the resolution of both issues turns on the court's determination that Father did not show good cause for his failure to appear. We review the court's finding that a parent lacked good cause for his failure to appear for an abuse of discretion and will reverse only if "the juvenile court's exercise of that discretion 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)).
¶9 Father does not dispute he was properly served with the motion for termination and had previously received notice that his parental rights could be terminated if he failed to attend proceedings without good cause; he argues only that his mistake regarding the time of the hearing was reasonable and excusable, noting he arrived "a mere 20 minutes late." However, the record reflects Father was provided the correct time for the hearing multiple times, yet he did not appear at the hearing until after DCS had concluded its presentation of evidence in support of termination.
Father also argues the juvenile court erred in denying him the opportunity to participate in and testify at the termination hearing. The record does not support this argument. Father's counsel was present and participated in the proceedings, including cross-examination of DCS's witness. Neither Father nor his counsel indicated Father wished to testify, and the record does not show that the court prevented Father from doing so. The record likewise does not support Father's suggestion that the court proceeded "by default," rather than through adjudication on the merits after considering the evidence. See A.R.S. §§ 8-537(C), -863(C) ("If a parent does not appear at the hearing, the court . . . may find that the parent has waived the parent's legal rights and is deemed to have admitted the allegations of the petition by the failure to appear."); Christy A., 217 Ariz. at 304, ¶ 14 (advising that juvenile courts should not use "default" terminology when a parent fails to appear, but should consider "whether the parent can show 'good cause' . . . and whether, under the circumstances, such failure should constitute a 'waiver of rights'"). --------
¶10 Nor has Father identified any meritorious defense to the allegations contained in the termination motion. See Christy A., 217 Ariz. at 305, ¶¶ 18-19 (considering the parent's lack of a meritorious defense in evaluating whether she had good cause for her failure to appear). Father argues DCS's failure to provide services, "specifically visitation," provided such a defense, but his conclusory statements are insufficient. See id. at 304- 05, ¶ 16 ("A meritorious defense must be established by facts and cannot be established through conclusions, assumptions or affidavits based on other than personal knowledge.") (quoting Richas v. Superior Court, 133 Ariz. 512, 517 (1982)). Moreover, the record reflects Father was offered a myriad of services to address his substance abuse issues but had not participated in substance abuse assessment, treatment, or testing or mental health services in almost two years. Additionally, although DCS offered Father supervised visitation, he cancelled all but one visit with less than twenty-four hours' notice.
¶11 Under these circumstances, Father has shown no abuse of discretion. See, e.g., Marianne N. v. Dep't of Child Safety, 240 Ariz. 471, 475-76, ¶¶ 16-17 (App. 2016) (affirming finding of lack of good cause where parent did not provide any evidence or testimony to support her assertion that she had been advised the hearing was on a different date and parent did not have a meritorious defense); Bob H. v. Ariz. Dep't of Econ. Sec., 225 Ariz. 279, 281-82, ¶¶ 8-9, 11-13 (App. 2010) (same where father reported he was misinformed regarding the time of the hearing and had just finished driving 1100 miles, and where mother argued she had to arrange her own transportation and was only thirty minutes late); Adrian E., 215 Ariz. at 101-02, ¶ 19 (same where parent testified he lost the notice and could not recall the dates set for trial); Christy A., 217 Ariz. at 305, ¶¶ 18-19 (same where DCS caseworker disputed parent's claim that she had advised the parent the trial had been continued and parent had no meritorious defense).
CONCLUSION
¶12 Father does not challenge the juvenile court's findings in support of severance, and because we find no error in the determination that he failed to appear without good cause, the order terminating Father's parental rights to Child is affirmed.