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Ashley S. v. Dep't of Child Safety

ARIZONA COURT OF APPEALS DIVISION ONE
Jun 26, 2014
No. 1 CA-JV 14-0013 (Ariz. Ct. App. Jun. 26, 2014)

Opinion

No. 1 CA-JV 14-0013

06-26-2014

ASHLEY S., Appellant, v. DEPARTMENT OF CHILD SAFETY, A.G., Appellees.

Maricopa County Office of the Public Advocate, Mesa By Suzanne Sanchez Counsel for Appellant Arizona Attorney General's Office, Tucson By Erika Z. Alfred Counsel for Appellee DCS


NOTICE: NOT FOR PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE

LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.


Appeal from the Superior Court in Maricopa County

No. JD23453

The Honorable Joan M. Sinclair, Judge


AFFIRMED


COUNSEL

Maricopa County Office of the Public Advocate, Mesa
By Suzanne Sanchez
Counsel for Appellant
Arizona Attorney General's Office, Tucson
By Erika Z. Alfred
Counsel for Appellee DCS

MEMORANDUM DECISION

Judge Peter B. Swann delivered the decision of the Court, in which Presiding Judge John C. Gemmill and Judge Patricia A. Orozco joined. SWANN, Judge:

¶1 Ashley S. ("Mother") contends that the juvenile court erred by severing her parental rights to her child, A.G., following an in absentia hearing. We hold that the hearing was proper and that the evidence presented at the hearing supported severance. We therefore affirm.

FACTS AND PROCEDURAL HISTORY

¶2 At the time of A.G.'s birth in March 2013, Mother tested positive for barbiturates, cocaine, marijuana, and opiates, and A.G. tested positive for amphetamines. Accordingly, Child Protective Services ("CPS") promptly removed A.G. from Mother's care.

¶3 In April 2013, the juvenile court found that A.G. was dependent as to Mother and ordered that Mother be offered reunification services. Mother was present and represented by counsel at the dependency hearing. At an October 2013 report and review hearing, at which Mother's counsel appeared but Mother did not, the guardian ad litem made an oral motion to change A.G.'s case plan to severance and adoption. The court granted that motion, set a severance hearing for November 2013, and provided juvenile court Form 3, "Notice to Parent in Termination Action," to Mother's counsel "to be forwarded to the parent[]." The guardian ad litem thereafter filed a written motion for severance that alleged multiple grounds for severance and asked the court to affirm the severance hearing.

¶4 Mother did not appear at the severance hearing even after it was delayed for more than half an hour beyond the scheduled time. Her counsel informed the court that counsel had been served with the written severance motion and had sent a letter to Mother at her last-known address. The letter had not been returned, but counsel had not heard anything from Mother. The CPS case manager, however, stated that Mother had called her several weeks before the hearing to ask "when court was," and the case manager had told Mother the date and time of the severance hearing and had given her bus passes. The court found that Mother had been served through her counsel and no good cause had been shown for Mother's failure to appear. The court therefore concluded that Mother had waived her rights, and proceeded with the hearing.

¶5 The Department of Economic Security ("DES") substituted for the guardian ad litem and called the CPS case manager to testify. The case manager's testimony and her written report, which was admitted into evidence, established the following. A.G. had been placed in the care of a family friend a few days after his March 2013 birth, and he remained there as of the date of the hearing; the family friend was willing to adopt him. DES had offered Mother a variety of reunification services, including substance abuse assessment and treatment, random urinalysis testing, hair follicle testing, parent aide services, counseling, and transportation. Mother failed to attend her appointments for substance abuse assessment, failed to participate in counseling, and only sporadically participated in urinalysis testing, submitting few samples that were all either diluted or positive for amphetamines or methamphetamines. Though A.G.'s placement had offered to allow Mother to visit A.G. twice per week, Mother generally chose to visit only once per week for very brief periods, and had not visited at all for several months. She never provided A.G. any cards, letters, gifts, support, or supplies.

¶6 The court found that DES had proven that severance was appropriate based on several statutory grounds and was in A.G.'s best interests. Accordingly, the court severed Mother's parental relationship with A.G. After the court signed and filed a written severance order, Mother timely filed a notice of appeal. The same day, she also filed a "Motion to Reconsider, Set Aside Order, and Set Hearing." The court explained in an unsigned minute entry that it would take no action on that motion because the notice of appeal deprived it of jurisdiction.

DISCUSSION

I. THE JUVENILE COURT DID NOT ABUSE ITS DISCRETION BY PROCEEDING WITH THE SEVERANCE HEARING IN MOTHER'S ABSENCE.

¶7 A parent of a dependent child must be served with a copy of a motion for severance of the parent-child relationship, and with notice of the initial severance hearing, in the manner prescribed by Ariz. R. Civ. P. 5(c). A.R.S. § 8-863(A); Ariz. R. P. Juv. Ct. 64(D)(2). The notice must advise the parent that if she fails to appear the court may find that she has waived her legal rights, may proceed with the hearing in her absence, and may find that severance is appropriate based on the record and the evidence presented. Ariz. R. P. Juv. Ct. 64(C). If the parent does not appear at the hearing and the court finds that she was properly served and good cause was not shown for her failure to appear, the court may proceed in accord with the advisements in the notice. A.R.S. § 8-863(C); Ariz. R. P. Juv. Ct. 65(C)(6)(c). The court has broad discretion to determine whether a parent's failure to appear was justified by good cause, Adrian E. v. Ariz. Dep't of Econ. Sec., 215 Ariz. 96, 101, ¶ 15, 158 P.3d 225, 230 (App. 2007), which includes mistake, inadvertence, surprise, and excusable neglect, see Christy A. v. Ariz. Dep't of Econ. Sec., 217 Ariz. 299, 304, ¶ 16, 173 P.3d 463, 468 (App. 2007).

¶8 Here, Mother's counsel was provided a Form 3 notice in open court and was mailed a copy of the motion for severance well in advance of the initial severance hearing. This constituted proper service under Ariz. R. Civ. P. 5(c)(2)(A) and (C), and the use of the form notice satisfied the advisement requirements set forth by Ariz. R. P. Juv. Ct. 64(C). See Ariz. R. P. Juv. Ct. Form 3. The record supports the court's determination that Mother was properly served and that no good cause was shown at the hearing for her failure to appear. Counsel offered no explanation for Mother's absence at the hearing, and the case manager informed the court that she had told Mother when to attend court and had given her bus passes. The court did not abuse its discretion by finding that Mother had waived her legal rights and proceeding with the severance hearing in Mother's absence.

¶9 On appeal, Mother contends that her later-filed motion to set aside demonstrated that her failure to appear was justified by good cause. In that motion, Mother asserted that she was unable to attend the severance hearing because she lacked transportation, and had telephoned both the court and the case manager on the day of the hearing but was unable to leave a message. The motion to set aside is beyond our purview. It was filed after the notice of appeal, and Mother never sought a stay or otherwise acted to allow the juvenile court to rule on it. We note, however, that the explanation for absence asserted in the motion is not of a type generally found to constitute good cause. See Bob H. v. Ariz. Dep't of Econ. Sec., 225 Ariz. 279, 282, ¶ 13, 237 P.3d 632, 635 (App. 2010) ("[A]ll parties to a dependency action are solely responsible for arranging their own transportation . . . ."). II. REASONABLE EVIDENCE SUPPORTS THE JUVENILE COURT'S FINDINGS IN FAVOR OF SEVERANCE.

Though Mother does not specifically contest the sufficiency of the evidence in support of severance, we address the issue in the exercise of our discretion.
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¶10 To sever a parent-child relationship, the juvenile court must find by clear and convincing evidence that at least one of the grounds set forth in A.R.S. § 8-533(B) exists, and must find by a preponderance of the evidence that severance is in the child's best interests. Kent K. v. Bobby M., 210 Ariz. 279, 288, ¶ 41, 110 P.3d 1013, 1022 (2005); Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 249, ¶ 12, 995 P.2d 682, 685 (2000). We accept the court's findings of fact unless they are not supported by any reasonable evidence, and we will affirm the severance order unless it is clearly erroneous. Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 280, ¶ 4, 53 P.3d 203, 205 (App. 2002). We conclude that reasonable evidence supported both the juvenile court's finding of a statutory ground for severance and its finding that severance was in A.G.'s best interests.

¶11 Mother's parental rights were severed on several statutory grounds, including A.R.S. § 8-533(B)(8)(b). Under § 8-533(B)(8)(b), DES was required to prove that A.G. was less than three years old and had been in out-of-home placement for six months or longer pursuant to court order, and that Mother had substantially neglected or willfully refused to remedy the circumstances that caused A.G. to be in out-of-home placement, including refusal to participate in DES's reunification services. The case manager's testimony and report established that A.G. was eight months old and had been in out-of-home placement since the week after his birth as a result of Mother's drug use. The testimony and report also established that DES offered Mother multiple reunification services, including services designed to address substance abuse, but Mother largely failed to participate in those services and continued to use drugs. We conclude that DES presented sufficient evidence to meet its burden of proof under § 8-533(B)(8)(b). Because only one statutory ground was required to support the severance order, we need not address whether the evidence also supported severance under the additional grounds found by the court. See Jesus M., 203 Ariz. at 280, ¶ 3, 53 P.3d at 205.

¶12 To show that severance was in A.G.'s best interests, the court was required to determine "how the child would benefit from a severance or be harmed by the continuation of the relationship," Maricopa Cnty. Juv. Action No. JS-500274, 167 Ariz. 1, 5, 804 P.2d 730, 734 (1990), by considering and balancing the totality of the evidence, Maricopa Cnty. Juv. Action No. JS-9104, 183 Ariz. 455, 461, 904 P.2d 1279, 1285 (App. 1995), abrogated on other grounds by Kent K., 210 Ariz. 279, 110 P.3d 1013. One relevant factor to the best-interests determination is whether the child would be at risk of abuse or neglect if placed in the parent's care. Christina G. v. Ariz. Dep't of Econ. Sec., 227 Ariz. 231, 238, ¶ 27, 256 P.3d 628, 635 (App. 2011); Linda V. v. Ariz. Dep't of Econ. Sec., 211 Ariz. 76, 80, ¶ 17, 117 P.3d 795, 799 (App. 2005). Other relevant factors include (but are not limited to) whether an adoptive placement is immediately available, whether the existing placement is meeting the child's needs, and whether the child is adoptable. Raymond F. v. Ariz. Dep't of Econ. Sec., 224 Ariz. 373, 379, ¶ 30, 231 P.3d 377, 383 (App. 2010). Here, DES presented evidence that A.G. had been in out-of-home placement since shortly after his birth, during which time Mother continued to use drugs and made limited efforts to establish a relationship with him. DES also presented evidence that A.G.'s long-term placement was willing to adopt him. In view of this evidence, the juvenile court reasonably found that severance was in A.G.'s best interests.

CONCLUSION

¶13 For the reasons set forth above, we affirm the juvenile court's order severing Mother's parental relationship with A.G.


Summaries of

Ashley S. v. Dep't of Child Safety

ARIZONA COURT OF APPEALS DIVISION ONE
Jun 26, 2014
No. 1 CA-JV 14-0013 (Ariz. Ct. App. Jun. 26, 2014)
Case details for

Ashley S. v. Dep't of Child Safety

Case Details

Full title:ASHLEY S., Appellant, v. DEPARTMENT OF CHILD SAFETY, A.G., Appellees.

Court:ARIZONA COURT OF APPEALS DIVISION ONE

Date published: Jun 26, 2014

Citations

No. 1 CA-JV 14-0013 (Ariz. Ct. App. Jun. 26, 2014)