Opinion
2 CA-JV 2021-0032
08-31-2021
Kimberly M., Appellant, v. Department of Child Safety and A.B., Appellees.
Rosemary Gordon Pánuco, Tucson Counsel for Appellant Mark Brnovich, Arizona Attorney General By Dawn R. Williams, Assistant Attorney General, Tucson Counsel for Appellee Department of Child Safety
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pinal County No. S1100JD201900037 The Honorable DeLana J. Fuller, Judge Pro Tempore
Rosemary Gordon Pánuco, Tucson Counsel for Appellant
Mark Brnovich, Arizona Attorney General By Dawn R. Williams, Assistant Attorney General, Tucson Counsel for Appellee Department of Child Safety
Presiding Judge Eppich authored the decision of the Court, in which Chief Judge Vásquez and Judge Brearcliffe concurred.
MEMORANDUM DECISION
EPPICH, PRESIDING JUDGE
¶1 Kimberly M. appeals from the juvenile court's order terminating her parental rights to her son, A.B., born in January 2014, on substance abuse and out-of-home placement grounds. See A.R.S. § 8-533(B)(3), (8)(c). She argues the court erred by proceeding with the severance hearing in her absence. We affirm.
¶2 The Department of Child Safety (DCS) removed A.B. from Kimberly's care in February 2019 and filed a dependency petition. The juvenile court adjudicated A.B. dependent after Kimberly failed to appear for the initial dependency hearing and a continued hearing. The court changed the case plan to severance and adoption after Kimberly failed to appear at the first dependency review hearing. DCS then filed a motion to terminate Kimberly's parental rights on abandonment grounds.
¶3 Kimberly did not attend the initial severance hearing because she was in custody in Texas but, in November 2019, attended a continued hearing telephonically. The minute entry states she was advised at that hearing that proceedings could be held in her absence if she failed to attend without good cause, that she could be deemed to admit allegations in a petition, and that her "[f]ailure to appear in court" could "result in the termination of [her] parental right[s]." That admonishment, however, does not appear in the transcript for that hearing.
¶4 At a pretrial conference held January 6, 2020, at which Kimberly appeared telephonically, DCS agreed to withdraw the termination motion, and the juvenile court changed the case plan to a concurrent plan of reunification and severance and adoption. However, after Kimberly failed to appear at a hearing held in January 2021, the court granted DCS's motion to return to a severance and adoption case plan. DCS then moved to terminate Kimberly's parental rights on substance abuse and time-in-care grounds. The severance motion and notice of hearing were served to Kimberly's counsel.
¶5 Kimberly did not appear for the initial severance hearing in February 2021. Her counsel confirmed he had given her notice of the hearing and had explained "the importance of appearing" and "the likely consequences should she fail to do so," specifically that "she would be placed in default and her parental rights [would be] terminated . . . absent showing good cause why she was not [present]." Counsel avowed he had tried to reach Kimberly without success and had "no explanation" for her absence.
¶6 The juvenile court found Kimberly had failed to appear without good cause and proceeded with the hearing. It concluded DCS had proven both severance grounds alleged, and further concluded that severance was in A.B.'s best interests. The court directed DCS to lodge an order with findings of fact and conclusions of law. DCS's proposed order included a finding that, on January 6, 2020, Kimberly had been admonished that the court could proceed in her absence and terminate her parental rights should she fail to appear. Kimberly did not object to the proposed order, and the court signed it fifteen days later. This appeal followed.
¶7 On appeal, Kimberly argues there is no record she "was ever admonished as required or that she received adequate notice." Thus, she concludes, the juvenile court's order terminating her parental rights "should be vacated." A court may conduct a severance hearing and terminate a parent's rights when the parent has failed to appear. See Ariz. R. P. Juv. Ct. 64(C), 65(C)(6)(c), 66(D)(2). The court must find the failure to appear was "without good cause" and the parent "had notice of the hearing, was properly served pursuant to Rule 64 and had been previously admonished regarding the consequences of failure to appear, including a warning that the hearing could go forward" in the party's absence. Ariz. R. P. Juv. Ct. 66(D)(2); see also Ariz. R. P. Juv. Ct. 64(C), 65(C)(6)(c). We review for an abuse of discretion a juvenile court's decision to proceed in a parent's absence. See Trisha A. v. Dep't of Child Safety, 247 Ariz. 84, ¶ 14 (2019).
Kimberly's counsel generally objected to proceeding in her absence but did not object to the juvenile court's finding that Kimberly had been adequately advised of the hearing's date and time and the consequences of failing to appear, nor its finding that there was no good cause for her nonappearance. Because we find no error in any event, we need not determine whether Kimberly's argument on appeal is waived by counsel's failure to specifically object to the court's findings. See Logan B. v. Dep't of Child Safety, 244 Ariz. 532, ¶ 9 (App. 2018) (failure to object in juvenile court generally waives argument on appeal).
¶8 Kimberly first notes the juvenile court's finding she had been warned on January 6 about the consequences of failing to appear is unsupported by the record. We agree-the transcript of that hearing contains no such admonishment. But, although that particular finding is incorrect, the court also generally found at the severance hearing that Kimberly had been properly advised. Although Kimberly argues there is "no support for finding that she had adequate notice" of the consequences of failing to appear the minute entry indicates she was warned in November 2019 that failing to appear at court hearings could result in termination of her parental rights, and she acknowledges that she was similarly admonished in the notice of hearing regarding the first termination motion.
The juvenile court, however, did remind Kimberly that it was "very, very important" that she "remain in contact with [her] attorney."
¶9 Kimberly contends, however, this warning was ineffective because it preceded DCS's filing of the second termination motion by more than a year. But nothing in the juvenile rules requires repeated admonishments, suggests that admonishments expire, or indicates that new admonishments be given whenever the course of litigation changes. Nor do we agree with Kimberly that it would have been reasonable for her to believe the admonitions applied only to the currently scheduled initial severance hearing and she could fail to attend future hearings without facing the same possible consequences. And, in any event, Kimberly's own counsel avowed that he had expressly warned her that her rights might be terminated if she failed to appear at the February 2021 initial severance hearing.
And, although Kimberly correctly observes the record does not contain a form advisement as suggested by Rule 65(D)(3), the juvenile rules do not require the use of a form advisement and, thus, the absence of such an advisement does not preclude a finding that a parent has been properly warned of the consequences of failing to appear.
¶10 Kimberly also asserts she lacked notice of the February 2021 hearing. But the state provided her counsel with both the motion and notice of hearing-constituting adequate service and notice of that hearing. See Ariz. R. P. Juv. Ct. 64(D)(2); Ariz. R. Civ. P. 5(c); Mara M. v. Ariz. Dep't of Econ. Sec., 201 Ariz. 503, ¶¶ 22-25 (App. 2002) (service on parent's attorney provides adequate notice for due process). Additionally, counsel indicated that he had informed Kimberly of the hearing date and time and the consequences of her failing to attend. Kimberly has not shown the juvenile court erred in concluding her absence from the February 2021 hearing was without good cause.
¶11 We affirm the juvenile court's order terminating Kimberly's parental rights to A.B.