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Darren B. v. Dep't of Child Safety

ARIZONA COURT OF APPEALS DIVISION ONE
Apr 30, 2019
No. 1 CA-JV 18-0277 (Ariz. Ct. App. Apr. 30, 2019)

Opinion

No. 1 CA-JV 18-0277

04-30-2019

DARREN B., Appellant, v. DEPARTMENT OF CHILD SAFETY, NAVAJO NATION, D.B., L.B., P.B., BABY GIRL B., Appellees.

COUNSEL Denise L. Carroll Esq., Scottsdale By Denise Lynn Carroll Counsel for Appellant Arizona Attorney General's Office, Phoenix By JoAnn Falgout 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. JD31639
The Honorable Jeanne M. Garcia, Judge

AFFIRMED

COUNSEL Denise L. Carroll Esq., Scottsdale
By Denise Lynn Carroll
Counsel for Appellant Arizona Attorney General's Office, Phoenix
By JoAnn Falgout
Counsel for Appellee, Department of Child Safety

MEMORANDUM DECISION

Presiding Judge David D. Weinzweig delivered the decision of the Court, in which Judge Kent E. Cattani and Judge James P. Beene joined. WEINZWEIG, Judge:

¶1 Darren B. ("Father") appeals the superior court's order terminating his parental rights to his four children and denial of his motion to set aside its finding that Father lacked good cause for his failure to appear at a pretrial conference. We affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Father and Sylvia B. ("Mother") are the natural parents of four children: D.B., born March 2013; L.B., born April 2014; P.B., born July 2015; and B.B., born August 2016. The Department of Child Safety ("DCS") took custody of D.B., L.B. and P.B. in November 2015 after it determined that Mother and Father had exposed the children to domestic violence and engaged in substance abuse. At that time, Father received and signed the standard Form 1 Notice to Parent in Dependency Action, which directed him to "attend all court hearings" and warned "the Court may terminate your parental rights" if Father "[did] not participate in reunification services or fail[ed] to attend further proceedings without good cause."

The superior court terminated Mother's parental rights in November 2017, and she is not a party to this appeal.

¶3 The court found all three children dependent as to both parents in April 2016, setting a case plan of family reunification. DCS offered services to Father, including "four rule-out random urinalysis testing over two weeks" and "full parent aid if [the] rule-out urinalysis tests are negative," plus domestic violence counseling, substance abuse assessment and treatment, and "transportation as needed and requested." Father only participated in three substance abuse tests and tested positive for methamphetamine in March 2016. DCS was "extremely concern[ed]" that Father had "not been able to demonstrate sobriety."

¶4 Meanwhile, Mother was pregnant in June 2016 with her and Father's fourth child. Father was arrested and incarcerated for domestic violence against Mother on June 13, and Mother tested positive for methamphetamine during a prenatal appointment. Mother conceded that she and Father used methamphetamine together.

¶5 DCS thus took custody of the fourth child, B.B., when she was born in August 2016 and filed a dependency petition. The superior court found B.B. dependent in February 2017. In March 2017, DCS moved to terminate Father's parental rights on grounds of substance abuse as to all four children, on nine- and fifteen-month out-of-home placement grounds as to D.B., L.B., and P.B., and on six-month out-of-home placement grounds as to B.B.

¶6 Father was in and out of prison during this period. He was jailed after the June 2016 arrest and released in August 2016 but returned to jail in May 2017. Even when not incarcerated, however, Father failed to maintain contact with DCS or participate in reunification services.

¶7 An initial severance hearing was held in October 2017. Father was incarcerated, but telephonically appeared. The court reviewed the "Form 3, Notice to Parent in Termination Action" in open court, again advising Father that his parental rights may be terminated if he missed future court hearings without good cause.

¶8 The court set a pretrial conference for November 6, 2017. Father was released from custody on November 2, four days before the hearing. Father did not appear at the pretrial conference on November 6. Father's attorney did not know where Father was and said Father had not contacted her. Father claims to have left voice messages with his counsel during the hearing. Although the record contains no voice messages, Father's counsel confirmed they exist. The superior court found no good cause for Father's failure to appear and thus proceeded to an evidentiary hearing on the severance motion in his absence.

¶9 The court found that "by his failure to appear," Father had "waived his right to contest the termination of his parental rights based on the allegations in the Motion for Termination." The court received testimony from two witnesses, including the DCS case manager and an expert "on the customs and mores of the Navajo Nation." At hearing's end, the court terminated Father's parental rights to all four children. The court entered findings of fact and conclusions of law.

¶10 On November 29, 2017, more than three weeks after the hearing and termination of his parental rights, Father moved to set aside the finding he had failed to appear without good cause. He claimed to have good cause based on a lack of transportation after his November 2 release from prison that precluded his attendance at the November 6 hearing. In response, on February 12, 2018, the court set a status conference for March 8, where Father could testify and explain his absence.

¶11 Father was again incarcerated in January 2018. Father had not communicated with his counsel since December 2017 and she was unaware he was in custody. His counsel had left him voicemails about the March 8 status conference but received no response.

¶12 Father did not appear for the March 8 conference. The court's staff ascertained that he had been incarcerated since January 2018; Father had never tried, however, to contact or inform his counsel, DCS or the court. The court proceeded with the status conference in Father's absence, hearing oral argument on his motion and denied his motion to set aside. The court then entered a final order terminating his parental rights on the grounds alleged. Father filed an untimely appeal. The court later excused his untimely notice of appeal. We have jurisdiction pursuant to Ariz. Const. art. 6, § 9, and A.R.S. § 8-235(A).

DISCUSSION

¶13 Father argues the superior court abused its discretion by denying his motion to set aside the termination order, which argued he had good cause to be absent from the November 6 pretrial conference. He also claims to have been denied due process because he "had no notice" of the March 8 status conference "until after the hearing ended." We take each argument in turn.

A. The Superior Court Did Not Abuse Its Discretion by Denying Father's Motion to Set Aside

¶14 Father first argues the superior court erred when it found he lacked good cause for his non-appearance at the continued pretrial conference. The court has discretion to accelerate a pretrial conference into a final severance adjudication when a duly-noticed parent fails to appear without good cause. Adrian E. v. Ariz. Dep't of Econ. Sec., 215 Ariz. 96, 98, ¶ 5, n.3, 99, ¶ 9 (App. 2007) (court may proceed to terminate parental rights when a parent fails to appear at a pretrial conference without good cause); Ariz. R.P. Juv. Ct. 64(C) (parents must be notified that their parental rights may be terminated if they fail to appear without good cause); see also A.R.S. § 8-537(C). Father demonstrates "good cause" if he shows his absence was because of "mistake, inadvertence, surprise or excusable neglect." Christy A. v. Ariz. Dep't of Econ. Sec., 217 Ariz. 299, 304, ¶ 16 (App. 2007). "Excusable neglect exists if the neglect or inadvertence is such as might be the act of a reasonably prudent person in the same circumstances." Id. (quotation omitted).

¶15 We review the superior court's decision for an abuse of discretion and will reverse only if the court's decision was "manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons." Adrian E., 215 Ariz. at 101, ¶ 15 (quotation omitted); see also Trisha A. v. Dep't of Child Safety, 245 Ariz. 24, 30, ¶ 13, 34-35, ¶ 31 (App. 2018). The superior court "is in the best position to weigh the evidence, observe the parties, judge the credibility of witnesses, and resolve disputed facts." Ariz. Dep't of Econ. Sec. v. Oscar O., 209 Ariz. 332, 334, ¶ 4 (App. 2004).

¶16 Father's sole argument is that he was released from jail November 2 and lacked transportation to make the November 6 pretrial conference. But Father was informed of the date and time of the November 6 conference, and twice warned about the dire consequences of failing to appear. Despite those consequences, Father made no effort to arrange transportation, either before his release or during the four days after his release. See Bob H. v. Ariz. Dep't of Econ. Sec., 225 Ariz. 279, 282, ¶¶ 11-13 (App. 2010) (a parent's failure to arrange for timely transportation does not constitute good cause for failure to appear). He never asked his counsel, DCS or the court for any form of assistance, or for transportation or a continuance. DCS had even offered Father bus passes "as needed [or] requested," but Father never sought them. He did not tell his attorney he would be absent from the hearing, much less explain why. We affirm the court's decision because it was not manifestly unreasonable, premised on untenable grounds or made for untenable reasons.

We further note that Father's absence was not a one-time occurrence, and he frequently missed hearings during the dependency and termination process. For instance, he missed the initial dependency hearing; he also missed three hearings in the severance matter due to incarceration.

B. The Superior Court Did Not Err in Proceeding with the Status Conference, and Regardless, Father Fails to Show Prejudice

¶17 Father next argues that the superior court erred by proceeding with the status conference knowing "that Father was incarcerated and had no notice of the proceedings." DCS counters that Father waived this argument by not raising it in the superior court and he failed to show fundamental prejudicial error.

¶18 We first recognize that fundamental error review applies because Father failed to raise his due process arguments in the superior court. Brenda D. v. Dep't of Child Safety, 243 Ariz. 437, 447, ¶ 37 (2018). As such, Father must demonstrate an (1) error exists, (2) the error is fundamental and (3) the error caused prejudice. Id. at 447-48, ¶ 38.

The status conference minute entry does not indicate that Father's counsel raised the argument in the superior court, and Father did not provide a transcript of the status conference.

¶19 Father has not met his burden under fundamental error review on this record because, at a minimum, he never demonstrated the alleged error caused prejudice. Father never explains how or why his appearance and testimony at the March 8 status conference would have caused a different result. He simply insists (again) that he had good cause for not attending the November 6 conference based on a lack of transportation. But the superior court knew his position and had all the information alleged by Father regarding his failure to appear when it heard argument and denied his motion at the status conference.

Father has not provided a transcript of the March 8 hearing, so we assume it supported the superior court's determinations. See Bliss v. Treece, 134 Ariz. 516, 519 (1983) ("Where the record is incomplete, a reviewing court must assume any evidence not available on appeal supported the trial court's action."). --------

CONCLUSION

¶20 We affirm.


Summaries of

Darren B. v. Dep't of Child Safety

ARIZONA COURT OF APPEALS DIVISION ONE
Apr 30, 2019
No. 1 CA-JV 18-0277 (Ariz. Ct. App. Apr. 30, 2019)
Case details for

Darren B. v. Dep't of Child Safety

Case Details

Full title:DARREN B., Appellant, v. DEPARTMENT OF CHILD SAFETY, NAVAJO NATION, D.B.…

Court:ARIZONA COURT OF APPEALS DIVISION ONE

Date published: Apr 30, 2019

Citations

No. 1 CA-JV 18-0277 (Ariz. Ct. App. Apr. 30, 2019)