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Marcy P. v. Dep't of Child Safety

ARIZONA COURT OF APPEALS DIVISION ONE
Feb 16, 2016
No. 1 CA-JV 15-0324 (Ariz. Ct. App. Feb. 16, 2016)

Opinion

No. 1 CA-JV 15-0324

02-16-2016

MARCY P., Appellant, v. DEPARTMENT OF CHILD SAFETY, A.P., Appellees.

COUNSEL Gates Law Firm LLC, Phoenix By S. Marie Gates Counsel for Appellant Arizona Attorney General's Office, Mesa By Michael Valenzuela Counsel for Appellee


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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. JD28344
The Honorable Bruce R. Cohen, Judge

AFFIRMED

COUNSEL Gates Law Firm LLC, Phoenix
By S. Marie Gates
Counsel for Appellant Arizona Attorney General's Office, Mesa
By Michael Valenzuela
Counsel for Appellee

MEMORANDUM DECISION

Presiding Judge Andrew W. Gould delivered the decision of the Court, in which Judge John C. Gemmill and Judge Margaret H. Downie joined. GOULD, Judge:

¶1 Marcy P. ("Mother") appeals from the juvenile court's order terminating her parental rights to A.P. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Mother and Titus L. ("Father") are the biological parents of A.P. Shortly before A.P.'s birth, Father attacked Mother. Mother was hospitalized after the attack, and remained in the hospital until A.P.'s birth. While at the hospital, Mother tested positive for methamphetamine and admitted to using methamphetamine and alcohol during her pregnancy. As a result, shortly after Mother gave birth, the Department of Child Services ("DCS") took A.P. into temporary custody and filed a dependency petition. DCS alleged Mother was unable to parent A.P. due to substance abuse, mental illness, and domestic violence with Father.

Father is not a party to this appeal.

A.P. is an Indian child affiliated with the Mescalero Apache Nation.

¶3 Because Mother failed to maintain contact with DCS after A.P.'s birth, DCS served Mother with a dependency petition by publication. The court found A.P. dependent on July 28, 2014, and approved a reunification plan concurrent with a severance and adoption plan.

¶4 Mother did not actively participate in reunification services, and, as a result, the court changed A.P.'s case plan to severance and adoption. In December 2014, DCS filed a motion to terminate Mother's parental rights. DCS served Mother with the severance motion through her attorney in February 2015.

¶5 Mother attended the initial severance hearing in April 2015. At the hearing, Mother was provided with "Form 3," which contained the following warning:

You are required to attend all termination hearings. If you cannot attend a court hearing, you must prove to the Court that you had good cause for not attending. If you fail to attend the Initial Termination Hearing, Termination Pre-Trial Conference, Status Conference, or Termination Adjudication Hearing without good cause, the Court may determine that you have waived your legal rights and admitted the grounds alleged in the motion/petition for termination. The Court may go forward with the Termination Adjudication Hearing in your absence and may terminate your parental rights to your child based on the record and evidence presented. Ariz. R. P. Juv. Ct. Form 3.

¶6 Mother appeared at the May 2015 pretrial conference. At the conclusion of the hearing, the court ordered Mother to attend a continued pretrial conference in September 2015, and a severance trial in January 2016. Mother was again provided Form 3, which contained the above-referenced warning and the dates and times for both the continued pretrial conference and the severance trial.

¶7 Mother did not appear at the September 2015 pretrial conference, and DCS requested the court proceed with the termination proceedings in Mother's absence. The court granted DCS's request. At the conclusion of the hearing, the court indicated it would terminate Mother's rights but took the matter under advisement. The court subsequently filed a seven-page under advisement ruling terminating Mother's rights on the grounds of abandonment, substance abuse, and six months out of home placement. Mother timely appealed.

Discussion

I. Notice

¶8 Mother argues she did not receive adequate notice her rights would be terminated if she failed to appear at the September 2015 pretrial conference. We disagree.

¶9 A parent in a termination case has a duty to appear at all of her hearings, and if she receives proper notice of the hearing and fails to appear, the court may deem her failure to appear as a waiver of rights and admission of allegations and enter a termination adjudication order based upon the record and evidence presented. Ariz. R. P. Juv. Ct. 64(C); see Ariz. Rev. Stat. ("A.R.S.") section 8-537(C) (a parent waives her legal rights "and is deemed to have admitted the allegations of the [severance] petition" if she "does not appear at the pretrial conference, status conference, or termination adjudication hearing"); Adrian E. v. Ariz. Dep't of Econ. Sec., 215 Ariz. 96, 101, ¶ 14 (App. 2007) (holding that Rule 64(C) authorizes the juvenile court to proceed in a parent's absence if the parent fails to appear at a status hearing). Proper notice requires a warning advising the parent that her failure to attend a hearing could result in the juvenile court's proceeding in her absence and terminating her parental rights. Ariz. R. P. Juv. Ct. Rule 64(C); Adrian E, 215 Ariz. at 101, ¶¶ 12, 14.

¶10 Here, Mother received proper notice that her rights could be terminated if she failed to appear at the September 2015 pretrial conference. At the May 18 pretrial conference, the court ordered Mother to appear at the September 2015 pretrial conference. Mother's counsel also called to remind her about the September 2015 pretrial conference. Additionally, Mother was provided Form 3, which included (1) the date and time of the September 2015 pretrial conference, and (2) the requisite warning that if she failed to appear, the court could proceed in her absence and her rights could be terminated.

¶11 Mother claims, however, that the Form 3 warning she received was ambiguous because it only referred to the consequences of failing to appear at a "pretrial conference," rather than the September 2015 "continued pretrial conference." We disagree; the average person would have little difficulty understanding that a continued pretrial conference is, in fact, a pretrial conference.

¶12 Mother also claims the May 2015 minute entry was confusing because it stated "failure of [Mother] to physically appear at the aforementioned [January 2016] Contested Severance Hearing may result in ...entry of default." Mother argues this admonition is, by its terms, limited to the January 2016 severance hearing, and did not include the September 2015 pretrial conference. However, regardless of whether this is a plausible interpretation, Mother ignores the fact that she was given Form 3 at the May 18 hearing, which expressly advised her of the date of the September 2015 hearing and that her failure to attend this hearing could result in the juvenile court proceeding in her absence and terminating her parental rights.

¶13 Accordingly, the juvenile court did not err in proceeding with the termination adjudication hearing in September 2015 in Mother's absence.

II. Under Advisement Ruling

¶14 Mother next argues the juvenile court abused its discretion when, at the end of the severance hearing, it stated its intention to terminate Mother's rights without first taking the matter under advisement.

¶15 The court did not abuse its discretion. At the conclusion of the hearing, the court verbally stated its intention to terminate Mother's rights, but that it wanted to take the matter under advisement and issue a formal written ruling. A week later, the court issued a seven-page ruling that included a detailed discussion of the relevant facts and law. The ruling contained all of the findings required to terminate Mother's rights. See Ariz. R. P. Juv. Ct. 66(F)(2) (listing the written findings that the juvenile court must make upon granting a severance motion). We find no error.

III. Sufficiency of the Evidence

¶16 Finally, Mother contends the juvenile court erred in finding there was "good cause" to deviate from the Indian Child Welfare Act ("ICWA") placement preferences, because there was insufficient evidence to support its finding.

The tribe does not object to A.P.'s placement. --------

¶17 This Court reviews a juvenile court's determination that "good cause" exists to deviate from ICWA's placement preferences for an abuse of discretion. Coconino Cty. Juv. Action No. J-10175, 153 Ariz. 346, 349-50 (App. 1987); Maricopa Cty. Juv. Action No. A-25525, 136 Ariz. 528, 533-34 (App. 1983).

¶18 ICWA requires, "in the absence of good cause to the contrary," that adoptive placements for Native American children be made in accordance with the placement preferences set forth in the

¶19 Act. 25 U.S.C. § 1915(b). Because ICWA does not define "good cause," we look to the Guidelines published by The Bureau of Indian Affairs for guidance on how to interpret "good cause." Steven H. v. Ariz. Dep't of Econ. Sec., 218 Ariz. 566, 572, ¶ 24 (2008) (citing Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 67,584 (Nov. 26, 1979)). The Guidelines provide that good cause may be shown based on (1) "[t]he extraordinary physical or emotional needs of the child as established by testimony of a qualified expert witness," or (2) "[t]he unavailability of suitable families for placement after a diligent search has been completed for families meeting the preference criteria." 44 Fed.Reg. at 67,594.

¶20 Here, the court's finding of "good cause" is supported by the April 2015 expert affidavit of DCS case manager Gooden, and the August 2015 DCS Progress Report. The affidavit and report show that although DCS made a diligent search, suitable families were unavailable for placement. Specifically, one paternal relative and two maternal relatives were located by DCS in an effort to place A.P. in an ICWA preferred home; however, none of these placements materialized. The first relative did not respond to DCS's communication; Mother lived in the same home as the second relative; and, after learning the extent of A.P.'s care requirements, the third relative declined to take custody. Additionally, because of Mother's "lack of engagement" in the placement process, DCS was unsuccessful in obtaining any additional information about other relatives or extended kin who could serve as placement for A.P.

¶21 The juvenile court also found that A.P. is a special needs child with numerous medical needs, and that her current placement had shown the ability to meet those needs. A.P.'s case worker testified she is developmentally delayed, and, as a result, she requires speech, occupational and physical therapy, a feeding specialist, a neurologist, a pulmonologist, and an endocrinologist. In view of these special needs, the court noted that her "[c]urrent placement is meeting all the day-to-day as well as on-going developmental needs and is prepared to move forward with adoption of the child."

¶22 Based on the record, the court did not abuse its discretion in finding good cause to deviate from the ICWA placement preferences.

CONCLUSION

¶23 For the reasons above, we affirm the juvenile court's order terminating Mother's parental rights to A.P.


Summaries of

Marcy P. v. Dep't of Child Safety

ARIZONA COURT OF APPEALS DIVISION ONE
Feb 16, 2016
No. 1 CA-JV 15-0324 (Ariz. Ct. App. Feb. 16, 2016)
Case details for

Marcy P. v. Dep't of Child Safety

Case Details

Full title:MARCY P., Appellant, v. DEPARTMENT OF CHILD SAFETY, A.P., Appellees.

Court:ARIZONA COURT OF APPEALS DIVISION ONE

Date published: Feb 16, 2016

Citations

No. 1 CA-JV 15-0324 (Ariz. Ct. App. Feb. 16, 2016)