Opinion
No. 2 CA-JV 2014-0112
01-16-2015
MELINDA P., Appellant, v. DEPARTMENT OF CHILD SAFETY, Z.P., S.P. AND R.L., Appellees.
COUNSEL Law Office of Susan M. Crawford, P.L.L.C., Mesa By Susan M. Crawford Counsel for Appellant Mark Brnovich, Arizona Attorney General By Erika Z. Alfred, Assistant Attorney General, Tucson Counsel for Appellee Department of Child Safety
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f); Ariz. R. P. Juv. Ct. 103(G).
Appeal from the Superior Court in Pinal County
No. JD201200221
The Honorable Brenda E. Oldham, Judge
AFFIRMED
COUNSEL Law Office of Susan M. Crawford, P.L.L.C., Mesa
By Susan M. Crawford
Counsel for Appellant
Mark Brnovich, Arizona Attorney General
By Erika Z. Alfred, Assistant Attorney General, Tucson
Counsel for Appellee Department of Child Safety
MEMORANDUM DECISION
Judge Vásquez authored the decision of the Court, in which Presiding Judge Kelly and Judge Howard concurred. VÁSQUEZ, Judge:
¶1 Melinda P. appeals from the juvenile court's August 11, 2014, order terminating her parental rights to her children, Z.P., S.P., and R.L., born in 2009, 2010, and 2012, on the grounds of both nine-and fifteen-month out-of-home placement. See A.R.S. § 8-533(B)(8)(a), (c). After Melinda had failed to attend the initial severance hearing in May 2014, which had been scheduled in her presence, the court had entered her "default" before proceeding with the severance hearing. Following a termination hearing in July 2014, which Melinda and her attorney attended along with the father and his attorney, the court entered an order terminating Melinda's parental rights to the children.
The juvenile court also terminated the parental rights of the children's father, who is not a party to this appeal. The parents also have a fourth child together, born in 2013, who is the subject of a separate dependency matter. Although the written severance order terminated Melinda's rights based on both nine- and fifteen-month out-of-home placement, as alleged in the termination motion, the transcript of the severance hearing suggests the Department of Child Safety argued for termination based only on the fifteen-month ground, and the court in fact made findings related solely to that ground and then terminated Melinda's rights on that ground alone. Melinda does not challenge this aspect of the court's ruling on appeal.
"When a parent fails to appear without good cause for certain hearings in a termination action, the juvenile court may proceed in the parent's absence with what is commonly referred to as a 'default.'" Adrian E. v. Ariz. Dep't of Econ. Sec., 215 Ariz. 96, n.3, 158 P.3d 225, 227 n.3 (App. 2007).
¶2 At the severance hearing, Melinda's attorney objected to the juvenile court's earlier default ruling. Melinda explained to the court that although she had been in the emergency room with the flu on the date of the initial severance hearing, she had no documentation to verify that had occurred; she had not attempted to call her attorney from the hospital; and, she had left the hospital at 5:00 a.m. that day, almost seven hours before the hearing, which began at 11:52 a.m. Melinda further testified, "I forgot I had court until my mom called me at the last minute. I told her I could not go. My mom came by the house knocking on the door. I said: I am not going to go."
Although Melinda did not file a written motion to set aside the entry of default, it appears the juvenile court treated her objection as a verbal motion, and in fact suggested she file a written "motion to reconsider," presumably meaning a motion to reconsider its denial of her verbal motion to set aside the entry of default.
¶3 Noting Melinda had been advised of the initial severance hearing and of the consequences of failing to attend, and that she had made no effort in the hours after leaving the hospital to call the court or her attorney, the juvenile court found Melinda had not provided good cause for her failure to appear and continued to enter her default. See Christy A. v. Ariz. Dep't of Econ. Sec., 217 Ariz. 299, ¶ 16, 173 P.3d 463, 468-69 (App. 2007) (trial court may set aside entry of default if good cause establishing mistake, inadvertence, surprise or excusable neglect, and meritorious defense shown). The court then heard testimony from the Department of Child Safety (DCS) case manager who was the sole witness to testify during the portion of the severance hearing related to Melinda, permitted Melinda's attorney to cross-examine that witness, and then terminated her parental rights to the children.
DCS is substituted for the Arizona Department of Economic Security in this decision. See 2014 Ariz. Sess. Laws, 2nd Spec. Sess., ch. 1, § 20.
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¶4 In general, we will not disturb a juvenile court's decision to terminate a parent's rights if there is reasonable evidence to support the court's order. Audra T. v. Ariz. Dep't of Econ. Sec., 194 Ariz. 376, ¶ 2, 982 P.2d 1290, 1291 (App. 1998). We view the evidence in the light most favorable to affirming the juvenile court's ruling. Vanessa H. v. Ariz. Dep't of Econ. Sec., 215 Ariz. 252, ¶ 20, 159 P.3d 562, 566 (App. 2007). For the reasons set forth below, we affirm.
¶5 In December 2012, DCS took Z.P., S.P., and R.L. into custody based on allegations that Melinda had failed to protect them from sexual abuse; had failed to provide for their basic needs; had physically abused them; suffered from substance abuse and mental illness; and had admitted "she was afraid she was going to kill [S.P.] because she had hit him too hard." The parents "submitted to the issue of [d]ependency," and the juvenile court adjudicated the children dependent and adopted the allegations in the dependency petition. DCS offered Melinda a variety of reunification services, including individual and family counseling, anger-management and parenting classes, a psychological evaluation, substance abuse treatment, team-decision making meetings, and supervised visitation. Due to Melinda's failure to consistently participate in and benefit from services, including counseling, in May 2014 DCS filed a motion to terminate Melinda's rights based on grounds of nine- and fifteen- month out-of-home placement.
¶6 On appeal, Melinda contends the juvenile court "should not have defaulted" her because she was in the emergency room on the day of the initial severance hearing and she attended subsequent hearings, and she asserts the court erroneously found she had been unable to remedy the circumstances that caused the out-of-home placement. She asks that we reverse the order terminating her parental rights to the children. DCS correctly argues Melinda waived the first argument by failing to adequately develop it and contends her second argument is not properly before us and, in any event, is waived by Melinda's failure to raise it below. See Trantor v. Fredrikson, 179 Ariz. 299, 300, 878 P.2d 657, 658 (1994). However, in the exercise of our discretion we address Melinda's claims.
¶7 Provided a parent has been properly served and fully informed of the consequences of failing to appear for an initial termination hearing, a juvenile court may proceed in the face of the parent's unjustified absence to terminate the parent's rights "based upon the record and evidence presented" if legal grounds for termination are proven. A.R.S. § 8-863(C); Ariz. R. P. Juv. Ct. 65(C)(6)(c); see also Ariz. R. P. Juv. Ct. 64(C) (notice of initial termination hearing shall inform parent that unjustified failure to appear may be deemed waiver and admission and hearing may proceed to final termination order in parent's absence).
¶8 When the juvenile court changed the case plan goal from reunification to severance and adoption at the permanency planning hearing in April 2014, it provided the parents with a "Form 3" admonishing them in part that "[f]ailure to attend future hearings [including the initial severance hearing] without good cause shown may result in a finding that they have waived their legal rights and [are] deemed to have admitted the allegation(s) in the petition," and that "[f]ailure to appear in court or to participate in reunification services may result in the termination of their parental rights." Melinda does not assert that she did not receive this information.
¶9 Despite having had actual notice of the hearing, attended by her attorney, during which her default was entered, and despite having been adequately apprised of the consequences should she fail to attend a scheduled hearing, Melinda nonetheless contends the juvenile court should not have entered a default against her. Her conclusory assertion lacks merit, particularly in light of her admission that she did not try to call her attorney to explain her absence, and that when her mother came to her house on the day of the hearing, she told her she was not going to attend. Because Melinda provided no reason for failing to attend the hearing that could be construed as constituting good cause, the court did not abuse its discretion by entering a default against her. See John C. v. Sargeant, 208 Ariz. 44, ¶ 13, 90 P.3d 781, 784 (App. 2004) (finding of good cause for failure to appear largely discretionary).
¶10 Melinda also asserts the juvenile court erroneously found she had been unable to remedy the circumstances that caused the out-of-home placement—the only challenge she seems to have raised to the termination order. Melinda maintains that because she had engaged in services and her involvement became sporadic only after the case plan goal was changed to severance and adoption, and because DCS failed to show future services would be futile, the court's ruling was erroneous. Notably, Melinda fails to explain how the evidence presented was in any way insufficient, particularly in light of the case manager's testimony and the exhibits admitted at the termination hearing, combined with the fact that she was deemed to have admitted the allegations contained in the motion to terminate.
¶11 The case manager expressly testified that Melinda had been unable to remedy the circumstances that had caused the children to be in an out-of-home placement and explained that she had "failed to admit that there has been an issue in regard to the allegations . . . of abuse . . . [and had] failed to maintain a stable home environment and/or employment and has failed to participate in counseling." She also testified that DCS had advised Melinda to continue participating in services, including counseling. Additionally, the motion to terminate, the allegations of which were deemed admitted, provided that Melinda had "been unable to remedy the circumstances that cause the children to be in an out-of-home placement." Moreover, the exhibits admitted during the dependency and at the severance hearing also support this conclusion. See Adrian E., 215 Ariz. 96, ¶ 23, 158 P.3d at 231 (exhibits "previously admitted during various dependency hearings" were "part of the record the juvenile court could consider in conducting a default hearing."). Accordingly, there was ample evidence in the record from which the juvenile court could conclude Melinda had been unable to remedy the circumstances that caused the out-of-home placement.
¶12 Finding no abuse of the juvenile court's discretion and no merit to either issue raised on appeal, we affirm the court's order terminating Melinda's parental rights to Z.P., S.P., and R.L.