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Cynthia C. v. Dep't of Child Safety

ARIZONA COURT OF APPEALS DIVISION ONE
Nov 25, 2014
No. 1 CA-JV 14-0145 (Ariz. Ct. App. Nov. 25, 2014)

Opinion

No. 1 CA-JV 14-0145

11-25-2014

CYNTHIA C., ANTHONY T., Appellants, v. DEPARTMENT OF CHILD SAFETY, C.T., Appellees.

COUNSEL The Stavris Law Firm PLLC, Scottsdale By Christopher Stavris Counsel for Appellant Cynthia C. Maricopa County Public Advocate, Mesa By Suzanne W. Sanchez Counsel for Appellant Anthony T. Arizona Attorney General's Office, Mesa By Eric Knobloch Counsel for Appellee Department of Child Safety


NOTICE: NOT FOR PUBLICATION.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. JD510639
The Honorable David J. Palmer, Judge

AFFIRMED

COUNSEL The Stavris Law Firm PLLC, Scottsdale
By Christopher Stavris
Counsel for Appellant Cynthia C.
Maricopa County Public Advocate, Mesa
By Suzanne W. Sanchez
Counsel for Appellant Anthony T.
Arizona Attorney General's Office, Mesa
By Eric Knobloch
Counsel for Appellee Department of Child Safety

MEMORANDUM DECISION

Presiding Judge Patricia K. Norris delivered the decision of the Court, in which Judge Lawrence F. Winthrop and Judge John C. Gemmill joined. NORRIS, Judge:

¶1 Cynthia C. ("Mother") and Anthony T. ("Father") separately appeal from the juvenile court's order terminating their parental rights to their minor child. For the reasons discussed below, we disagree with Mother's and Father's arguments and affirm the juvenile court's termination order. I. Mother's Argument

¶2 Mother argues she "was not properly notified of the [correct] location" of the termination hearing "which violates her due process right to be heard." In support of this argument, Mother suggests the reason she failed to appear at the termination hearing was because her attorney sent her a letter incorrectly stating the hearing would be at the "Durango" juvenile court center in Phoenix, Arizona. At the termination hearing — which actually took place at the juvenile court center in Mesa, Arizona — Mother's counsel informed the court of the error in the letter, but nevertheless, the court found Mother's failure to appear was without good cause and proceeded in her absence. Based on the record before us, the juvenile court did not abuse its discretion in finding Mother failed to appear at the termination hearing without good cause. See Adrian E. v. Ariz. Dep't of Econ. Sec., 215 Ariz. 96, 101, ¶ 15, 158 P.3d 225, 230 (App. 2007) (appellate court reviews juvenile court's finding of good cause for failure to appear for abuse of discretion and will reverse finding "only if the juvenile court's exercise of that discretion was 'manifestly unreasonable'") (citation omitted).

¶3 The record shows all prior court proceeding in this case — five of which Mother had attended — were held at the juvenile court center in Mesa. Mother was present at the pretrial conference when the juvenile court set the time and place for the termination hearing. The court waited more than 40 minutes after the scheduled time before beginning the termination hearing and verified with its staff that Mother had not tried to contact the court. Mother's attorney and Father's attorney also contacted their offices to see if either parent had contacted them. The case manager present at the termination hearing called the cell phone numbers he had previously used to contact Mother and Father, but neither one answered. And finally, Mother's attorney stated that no "staff member from Durango [had] called to indicate [the] parents [had] checked in" there. Given these circumstances, the juvenile court did not abuse its discretion in finding Mother had failed to appear at the termination hearing without good cause.

We note that under Arizona Rule of Procedure for the Juvenile Court 46(E), Mother could have filed a post-trial motion to set aside the judgment explaining why she had failed to appear at the termination hearing, but she did not do so.

¶4 Furthermore, Mother had an opportunity to be "heard," she was represented by council who actively participated in the termination hearing by objecting to evidence, and cross-examining witnesses. "[W]here the parent fails to appear but is still represented by counsel, the court may proceed in that parent's absence because his or her rights will be protected by the presence and participation of counsel." Christy A. v. Ariz. Dep't of Econ. Sec., 217 Ariz. 299, 307, ¶ 25, 173 P.3d 463, 471 (App. 2007). II. Father's Arguments

¶5 Father first argues the juvenile court should not have admitted into evidence two Arizona Department of Economic Security ("ADES") progress reports because the authors of the reports were not present at the termination hearing or available for cross-examination. The court did not, however, abuse its discretion in admitting these reports into evidence. Lashonda M. v. Ariz. Dep't of Econ. Sec., 210 Ariz. 77, 82-83, ¶ 19, 107 P.3d 923, 928-29 (App. 2005) (reviewing court will not disturb trial court's decision to admit evidence absent clear abuse of discretion and resulting prejudice).

In accordance with ARCAP 27, we have substituted the Department of Child Safety ("DCS") for ADES because the pertinent responsibilities of ADES have been transferred to DCS. Senate Bill 1001, § 157, 51st Leg., 2d Spec. Sess. (Ariz. 2014) (enacted).

¶6 The juvenile court was entitled to consider the reports because they were already part of the record, as the court had admitted them into evidence at a prior dependency hearing without any objection. Consequently, the juvenile court could properly consider the reports irrespective of their admissibility at the termination hearing. See Adrian E., 215 Ariz. at 102-03, ¶ 23, 158 P.3d at 231-32 (exhibits previously admitted at dependency hearing were part of record juvenile court could consider irrespective of their independent admissibility at default hearing); see also Ariz. R.P. Juv. Ct. 66(D)(2) (court can proceed with termination hearing "based upon the record and evidence presented" if parent received proper notice and fails to appear without good cause) (emphasis added). Further, Father has not argued on appeal he was prejudiced by the juvenile court's admission of the two reports. Thus, the juvenile court did not abuse its discretion in admitting the reports.

¶7 Father also argues ADES—at the time of the termination hearing—had not yet completed a bonding-best interest assessment and thus had failed to make diligent efforts to reunify the family. This court recently held that when a court has ordered ADES to provide specific reunification services, and it then finds ADES has made reasonable efforts to provide those services, a parent who fails to "object [to that finding] in the juvenile court is precluded from challenging that finding on appeal." Shawanee S. v. Ariz. Dep't of Econ. Sec., 234 Ariz. 174, 179, ¶ 16, 319 P.3d 236, 241 (App. 2014). Although Father argued in the juvenile court that the court should stay its decision on the motion for termination until it had received the results of the bonding-best interest assessment, he did not argue ADES had failed to make diligent efforts to provide the ordered services, or that the services he had received were inadequate. Accordingly, he has waived this argument on appeal. See id.

The court made at least six findings on the record that "ADES has made reasonable efforts" either to "prevent the removal of the child" or to "finalize the permanency plan."

The court explained at the termination hearing that the "bonding-best interest" assessment was not intended as a reunification service to the parents, but was for "potential adoptive placements."
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¶8 Further, even if not Father had not waived this argument, ADES made a diligent effort to reunify the family. ADES provided Father appropriate services, including urinalysis testing, substance abuse treatment, a psychological evaluation, individual counseling, visitation services, and transportation. Thus, not only does the record reflect Father failed to preserve this argument on appeal, but it also supports the juvenile court's finding that ADES provided Father with appropriate reunification services.

¶9 For the foregoing reasons we affirm the juvenile court's order terminating Mother's and Father's parental rights.


Summaries of

Cynthia C. v. Dep't of Child Safety

ARIZONA COURT OF APPEALS DIVISION ONE
Nov 25, 2014
No. 1 CA-JV 14-0145 (Ariz. Ct. App. Nov. 25, 2014)
Case details for

Cynthia C. v. Dep't of Child Safety

Case Details

Full title:CYNTHIA C., ANTHONY T., Appellants, v. DEPARTMENT OF CHILD SAFETY, C.T.…

Court:ARIZONA COURT OF APPEALS DIVISION ONE

Date published: Nov 25, 2014

Citations

No. 1 CA-JV 14-0145 (Ariz. Ct. App. Nov. 25, 2014)