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Cindy A. v. Arizona Department of Economic Security

Court of Appeals of Arizona, First Division, Department E

September 24, 2013

CINDY A., Appellant,

Not for Publication – Ariz. R.P. Juv. Ct. 103(G); ARCAP 28

Appeal from the Superior Court in Maricopa County Cause No. JD22246 The Honorable Aimee L. Anderson, Judge

Law Office of David M. Osterfeld, L.L.C. Buckeye By David M. Osterfeld Attorneys for Appellant.

Thomas C. Horne, Attorney General Phoenix By Michael F. Valenzuela, Assistant Attorney General Attorneys for Appellee Arizona Department of Economic Security.


LAWRENCE F. WINTHROP, Presiding Judge.

¶1 Cindy A. ("Mother") appeals the juvenile court's order terminating her parental rights to I.A. ("Child"). Mother argues that the juvenile court abused its discretion when it proceeded with a hearing in her absence, and violated her right to due process when her failure to appear led the juvenile court to convert the scheduled pretrial hearing to a termination adjudication hearing. Mother also argues that reasonable evidence does not support the statutory ground for termination and that termination was not in the best interest of Child. For the following reasons, we affirm.


¶2In early July 2012, Child was born to Mother in Maricopa County.[1] On July 19, Child Protective Services ("CPS") took Child into temporary physical custody upon his release from the hospital after hospital staff reported that Mother was unable to care for Child.[2] Five days later, the Arizona Department of Economic Security ("ADES") filed a dependency petition in juvenile court. On July 31, at the preliminary protective hearing, Mother denied the allegations in ADES's dependency petition. Mother and ADES reached a partial agreement regarding remedial services on August 31. On September 26, the juvenile court found Child dependent as to Mother. The juvenile court also ratified a family reunification case plan, concurrent with an alternative case plan of severance and adoption.

¶3Under the case plan, the juvenile court ordered Mother to attend a minimum of two supervised visits with Child per week. Additionally, Mother was offered the following services: (1) parent aide services during the scheduled twice-weekly visits with Child, (2) parenting classes, (3) counseling for domestic violence, (4) an initial substance abuse screening, (5) transportation passes, and (6) self-referral to Magellan Health Services for behavioral health.

¶4After passing the initial drug screening and beginning remedial services, Mother's attendance flagged at parent aide services and visitation. Mother did not participate in October and November 2012. At the December 3 permanency planning and report and review hearing, the juvenile court ordered the case plan changed to only severance and adoption.

¶5On January 7, 2013, ADES moved to terminate the parent-child relationship pursuant to Arizona Revised Statutes ("A.R.S.") section 8-533(B)(8)(b) (West 2013) .[3] On January 8, the juvenile court held a contested initial termination hearing. At that hearing, the juvenile court set mediation regarding Mother for February 14.[4] The court also set a report and review hearing and the pretrial conference regarding Mother for February 19. At the conclusion of the January 8 hearing, the juvenile court read aloud, and Mother acknowledged and signed, a copy of "Form 3" providing notice that Mother could risk waiving her rights by failing to appear at future court proceedings. To accommodate Mother's hearing impairment, the juvenile court had Mother utilize special headphones when reading Form 3.

¶6Mother failed to appear for mediation on February 14. Later that day, Mother filed a motion to appear telephonically at the February 19 hearing because she was "stuck in California where her money was stolen" and was "unable to travel back to Arizona." On the morning of February 19, Mother called the juvenile court's chambers to explain that, although she was back in Arizona, she could not appear in person at the hearing because she was ill. At that morning's hearing, the juvenile court denied Mother's motion to appear telephonically and found no good cause for her failure to appear due to illness. Over counsel's objection, the juvenile court then converted the pretrial conference to a termination adjudication hearing, and proceeded in Mother's absence.

¶7At the termination adjudication hearing, the State presented multiple exhibits and the testimony of the ADES case manager regarding the case plan, Mother's level of participation, and the best interest of the child. Though Mother was absent, Mother's counsel had an opportunity to fully cross-examine the witness. After considering the evidence and the arguments of counsel, the juvenile court found that Mother "has substantially neglected or wilfully refused to remedy the circumstances which caused this child to be in an out of home placement including but not limited to her refusal to participate in reunification services, " that ADES "has made reasonable efforts of reunification, " and that "termination is clearly in this baby's best interest and welfare." The juvenile court then terminated the parent-child relationship between Mother and Child.

¶8On March 6, 2013, Mother filed a motion with the juvenile court to "Reconsider Court's Finding of Severance on 2/19/13, " and she later provided documentation of her hospital emergency room visit the morning of the February 19 hearing. On March 13, meanwhile, the juvenile court filed its signed order terminating Mother's parental rights to Child. Mother filed a timely appeal on March 28, 2013. Mother then filed a motion with this court to stay the appeal and revest jurisdiction in the juvenile court so the motion to reconsider could be heard at the report and review hearing scheduled for April 19. This court granted Mother's motion to stay and revest jurisdiction, and the juvenile court heard argument on the motion to reconsider on April 19. At that hearing, the juvenile court denied the motion, and the appeal was ...

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