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Ronald S. v. Arizona Department of Economic Security

Court of Appeals of Arizona, Second Division, Department A

September 23, 2013

RONALD S., Appellant,
v.
ARIZONA DEPARTMENT OF ECONOMIC SECURITY and A.S., Appellees

Not for Publication Rule 28, Rules of Civil Appellate Procedure

APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY Cause No. J196542 Honorable Geoffrey Ferlan, Judge Pro Tempore

Sanders & Sanders, P.C. By Ken Sanders Tucson Attorneys for Appellant

Thomas C. Horne, Arizona Attorney General By Laura J. Huff Tucson Attorneys for Appellee Arizona Department of Economic Security

Pima County Office of Children’s Counsel By Sara E. Goldfarb Tucson Attorneys for Appellee A.S.

JOSEPH W. HOWARD, Chief Judge

¶ 1 Ronald S. appeals from the juvenile court's June 2013 order adjudicating his daughter A.S. a dependent child. For the following reasons, we affirm the order.

Background

¶2 In March 2013, when A. S. was thirteen-months old, Ronald was living with A.S.'s mother, Sharla H., and her three older daughters. Child Protective Services (CPS), a division of the Arizona Department of Economic Security (ADES), investigated a report that Sharla had struck her oldest child, a fifteen-year-old daughter, with her hands and a belt, causing bruises that were noticed at the child's school. Sharla admitted having had an "altercation" with her oldest daughter, but she initially denied that she had struck her with a belt or caused her injuries. She told a CPS investigator that Ronald and her other children had been home during the altercation. According to the investigator, Ronald had been aware of the escalating conflict and had done nothing "to intervene or protect the children, " but had taken A.S. to another part of the house. Sharla also admitted to using alcohol in combination with Ambien, a prescription medication that had not been prescribed for her.

¶3 ADES filed a dependency petition alleging A.S. and her half-sisters were dependent as to Sharla and their respective fathers, and Sharla's oldest child was removed from the home. ADES alleged Ronald lacked an order granting him custody of A.S., had failed to protect her from exposure to Sharla's physical abuse, and had failed to protect her from Sharla's substance abuse. At a facilitated settlement conference held on May 6, 2013, which Ronald was permitted to attend telephonically to accommodate his work schedule, Sharla pleaded no contest to the allegations of dependency, and allegations against Ronald were scheduled to be tried in a contested dependency hearing on June 11, 12, and 19.

¶4 On June 3, Ronald, through counsel, filed a motion asking "to appear telephonically for the contested dependency adjudication on June 11 and June 12, 2013" because he would "be working out of state from June 8 through June 15, 2013." When the hearing commenced on June 11, the juvenile court had not yet ruled on the motion.[1]According to Ronald's counsel, Ronald had notified him on June 3 "that he had to work out of town and thought he was going to be back in time, " but that it "[t]urn[ed] out he wasn't." The court first stated it was inclined to grant the request, finding there appeared to be "good cause, based upon the motion." But when the court telephoned Ronald, it learned he was not absent from the state on business, but was in San Diego with his family, on a vacation planned before the dependency adjudication hearing had been scheduled. The court then denied Ronald's motion for telephonic appearance and found his absence from the hearing was voluntary, without good cause shown. The court further found Ronald had been advised and had acknowledged "the consequences of failing to attend court hearings" and specifically had been admonished "that his failure to appear could result in the court deeming the allegations in the dependency petition to be admitted" and "that the dependency adjudication could be entered against him in his absence."

¶5 The juvenile court then proceeded with the hearing in Ronald's absence. Ronald was permitted to listen to the proceedings telephonically, and his attorney participated in the hearing, challenging the admission of certain evidence and arguing against an adjudication of dependency. At the close of the adjudication hearing, the court found A.S. dependent as to Ronald, based on evidence admitted at the hearing and allegations in the dependency petition that were deemed admitted by Ronald's failure to appear.

Discussion

¶6 On appeal, Ronald argues the juvenile court erred in finding he had failed to appear for his contested dependency adjudication hearing "when he was, in fact, present by telephone." He contends he "had never received notice that failure to personally appear, as opposed to appearing by telephone" could constitute a waiver of his rights and the court's contrary findings denied him due process. He also maintains there ...


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