Opinion
No. 1 CA-JV 17-0104
11-14-2017
SARAH H., Appellant, v. DEPARTMENT OF CHILD SAFETY, H.H., G.H., Appellees.
COUNSEL Vierling Law Offices, Phoenix By Thomas A. Vierling Counsel for Appellant Arizona Attorney General's Office, Tucson By Laura J. Huff 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. JD30337
The Honorable Cari A. Harrison, Judge
AFFIRMED
COUNSEL Vierling Law Offices, Phoenix
By Thomas A. Vierling
Counsel for Appellant Arizona Attorney General's Office, Tucson
By Laura J. Huff
Counsel for Appellee Department of Child Safety
MEMORANDUM DECISION
Judge Kent E. Cattani delivered the decision of the Court, in which Presiding Judge Diane M. Johnsen and Judge Peter B. Swann joined. CATTANI, Judge:
¶1 Sarah H. ("Mother") appeals the superior court's termination of her parental rights as to two children. For reasons that follow, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Mother and Nicholas H. ("Father") are the parents of H.H., born in early 2009, and G.H., born in mid-2015. In August 2014, the Department of Child Safety ("DCS") received a report alleging that Mother was using and selling prescription drugs while H.H. was in the home. The report also alleged that Mother and H.H. had been seen with Father, a registered sex offender whose terms of probation did not allow him to see the children. A second report two months later alleged that a friend of Mother's was sexually abusing H.H. and that Mother's home was dirty and smelled of cat urine.
The superior court also terminated Father's parental rights, but he is not a party to this appeal. Mother and Father are also the parents of B.H., born in early 2017. Mother's rights as to B.H. are not at issue in this appeal.
¶3 A third report in February 2015 alleged that Mother was drug impaired at H.H.'s birthday party. Mother and Father had also apparently been involved in a recent domestic violence incident. And the report alleged that Father continued to have regular contact with H.H. despite the terms of his probation.
¶4 In April 2015, DCS removed H.H. from the home and filed a petition alleging that she was dependent as to Mother and Father. Three months later, Mother gave birth to G.H. G.H. showed signs of drug withdrawal and was hospitalized for life-threatening symptoms within days of her birth. DCS took custody of G.H. shortly thereafter and filed a petition alleging that she was dependent as to Mother and Father. The superior court adjudicated both children dependent in August 2015.
¶5 DCS offered Mother substance abuse testing and treatment, parent-aide services, a psychological evaluation, and individual counseling with a domestic violence component. But Mother did not consistently follow through with these services, and in late 2015 and early 2016, Mother was closed out of parent-aide services and substance abuse treatment and testing. These services were later reopened, but Mother frequently tested positive for opiates and cocaine throughout 2016. Mother was closed out of substance abuse treatment and testing again in August and September 2016 due to her refusal to participate in an intensive outpatient treatment program.
¶6 In August 2016, DCS filed a motion to terminate Mother's parental rights as to H.H. and G.H. The petition alleged grounds for severance based on substance abuse, 9-months' time in care, and 15-months' time in care as to both children, and 6-months' time in care as to G.H. See Ariz. Rev. Stat. ("A.R.S.") § 8-533(B)(1), (8)(a)-(c).
Absent material revisions after the relevant date, we cite a statute's current version. --------
¶7 The court held a status conference on November 14, 2016. The hearing was scheduled for 10:15 a.m., but Mother had not appeared by that time. The court did not start the hearing until 10:37 a.m., then proceeded in Mother's absence. The court found that Mother had failed to appear without good cause and that she had therefore waived her right to contest the allegations in the termination petition. See Ariz. R.P. Juv. Ct. 64(C). Mother had received notice of the hearing and had signed a copy of Form 3 of the Arizona Rules of Procedure for the Juvenile Court, which warns parents that their rights may be waived if they fail to appear at a status conference.
¶8 Mother filed a motion asking the court to set aside its finding that she did not show good cause for her failure to appear. The motion alleged that Mother had mistakenly believed the hearing was at 10:30 a.m., and that after realizing her error, she believed she could still make it to the hearing on time but "encountered significant traffic" on her way. Mother asserted she had called her attorney just before the hearing started to let the attorney know she had parked and was walking to the courthouse. But Mother did not appear at the courthouse until several minutes after the end of the status conference. The court denied Mother's motion, finding she knew of the time of the status conference, had received notice of the consequences of failing to appear, and had failed to demonstrate a meritorious defense to the severance motion.
¶9 Mother then failed to appear on the day scheduled for her termination adjudication hearing, apparently because she was incarcerated. The parties agreed to reschedule the hearing to the day scheduled for Father's evidentiary hearing, three weeks later.
¶10 Mother failed to appear at the rescheduled hearing because she was in the hospital following the birth of her third child, B.H., and the hearing was held in her absence. The superior court admitted DCS's exhibits and took testimony from the case manager. Mother's counsel had the opportunity to cross-examine the case manager but did not do so. The court terminated Mother's parental rights as to both children, finding that the alleged statutory grounds supported severance and that severance would be in the children's best interests.
¶11 Mother appealed, and we have jurisdiction under A.R.S. § 8-235(A).
DISCUSSION
¶12 Parents have a "fundamental liberty interest . . . in the care, custody, and management of their child." Santosky v. Kramer, 455 U.S. 745, 753 (1982). But a parent's fundamental right to care for his or her child yields upon a finding that: "(1) the parent is unable to parent the child for any reason defined by statute; and (2) the parent has been afforded due process." Carolina H. v. Ariz. Dep't of Econ. Sec., 232 Ariz. 569, 571 (App. 2013).
¶13 Under Rule 64(C) of the Arizona Rules of Procedure for the Juvenile Court, upon the filing of a motion or petition for termination, the parent must be provided with written notice "that failure to appear at the initial hearing, pretrial conference, status conference or termination adjudication hearing, without good cause, may result in a finding that the parent . . . has waived legal rights, and is deemed to have admitted the allegations in the motion [] for termination." A parent who fails to appear without good cause waives her ability to contest the allegations of the termination petition, but retains the right to participate in the proceeding through counsel. See Manuel M. v. Ariz. Dep't of Econ. Sec., 218 Ariz. 205, 211-12, ¶¶ 20-21 (App. 2008); Christy A. v. Ariz. Dep't of Econ. Sec., 217 Ariz. 299, 306-07, ¶¶ 24-25 (App. 2007).
¶14 Mother argues that the superior court denied her due process by finding she had waived her rights based on her failure to appear at the status conference. Citing Brenda D. v. Department of Child Safety, 242 Ariz. 150 (App. 2017), Mother argues the superior court should have waited until the close of evidence before finding that she had waived her rights to contest the factual allegations in the severance motion.
¶15 In Brenda D., this court considered whether, under Arizona Rule of Procedure for the Juvenile Court 66(D)(2) and A.R.S. §§ 8-863(C) and -537(C), the superior court may find waiver when a parent arrives late to a termination hearing, but before the close of evidence. 242 Ariz. at 154-56, ¶¶ 10-18. The court held that because "the requirement to 'timely appear' is prescribed neither by [the statutes], nor by Rule 66(D)," the superior court may find that a parent has failed to appear at the termination hearing only at the close of evidence. Id. at 155, ¶ 14. If the parent is late for the hearing, but appears before its close, the superior court may not restrict that parent's participation in the remainder of the hearing by finding waiver. Id. at 156, ¶ 18.
¶16 Mother's reliance on Brenda D. is unavailing because she failed to appear at all at the initial status conference and later at the termination adjudication hearing. Even assuming she had a legitimate reason for not attending the termination adjudication hearing (she was apparently in the hospital), she did not notify the court or counsel that she would be unable to attend the hearing. And Mother has never alleged—either in her motion to set aside the initial finding of no good cause for failing to appear at the status conference, at the originally scheduled time for a termination hearing, at the termination adjudication hearing, or on appeal—that she had a meritorious defense to the allegations of DCS's termination motion. See Christy A., 217 Ariz. at 304-05 & n.11, ¶¶ 15-16. Thus, she has not established a basis to overcome the court's finding that DCS proved the allegations in the severance motion.
¶17 Mother argues that the superior court violated her due process rights by proceeding in her absence at the termination adjudication hearing. But Mother's counsel was present and available to raise issues on her behalf. Although counsel did not object to the admission of DCS's exhibits, cross-examine DCS's only witness, or otherwise suggest that Mother had a meritorious defense to the allegations in the severance motion, counsel had the opportunity to do so. Thus, Mother was afforded due process. See Manuel M., 218 Ariz. at 211-12, ¶¶ 20-21 (a non-appearing parent's interests may be adequately represented at a termination hearing if counsel is given the opportunity to participate meaningfully); Christy A., 217 Ariz. at 306-07, ¶ 24-25.
¶18 Under the circumstances presented, and given Mother's failure to assert, much less support, a meritorious defense to the allegations in the termination motion, Mother has not established a basis for reversing the superior court's finding that she failed to appear without good cause or the court's order severing her parental rights.
CONCLUSION
¶19 For the foregoing reasons, we affirm the superior court's order terminating Mother's parental rights as to H.H. and G.H.