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Kimbria S. v. Arizona Department Economic Security

Court of Appeals of Arizona, First Division

December 12, 2013

KIMBRIA S., Appellant,
v.
ARIZONA DEPARTMENT ECONOMIC SECURITY, D.S., Appellees.

Not for Publication – Rule 111(c), Rules of the Arizona Supreme Court

Appeal from the Superior Court in Maricopa County No. JD21256 The Honorable Joan Sinclair, Judge

Jennifer Perkowski, Mesa Counsel for Appellant

Arizona Attorney General's Office, Phoenix By Michael F. Valenzuela Counsel for Appellee Arizona Department of Economic Security

Presiding Judge Lawrence F. Winthrop delivered the decision of the Court, in which Judge Margaret H. Downie and Judge Jon W. Thompson joined.

MEMORANDUM DECISION

LAWRENCE F. WINTHROP PRESIDING JUDGE

¶1 Kimbria S. ("Mother") appeals the decision of the juvenile court to terminate her parental rights to D.S. ("Child") following a hearing on the merits after she failed to appear at a pre-trial conference. Mother argues that the court abused its discretion by refusing to find good cause for her failure to appear. Mother also contends that she received inadequate assistance of counsel before the juvenile court. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Child was removed at nine months of age from Mother's care in December 2011 after a report to the Child Protective Services ("CPS") Hotline stated that Mother's erratic behavior placed Child in jeopardy, and after Mother made comments that she would harm herself and Child. Following the filing of a dependency petition, the Arizona Department of Economic Security ("ADES") offered Mother the following reunification services: (1) parent aide services, (2) psychological consultation, (3) trauma therapy through a private practitioner, (4) medication monitoring services, (5) initial substance abuse testing, and (6) transportation. Mother inconsistently participated in services for the first year following Child's removal.

¶3 In February 2012, Child was found dependent as to Mother.[1] ADES filed a motion for termination of parental rights in April 2013, pursuant to Arizona Revised Statutes ("A.R.S.") section 8-533(B)(8)(c) (providing termination of parental rights where child is in out-of-home placement fifteen months or longer, ADES provides adequate reunification services, and parent fails to remedy circumstances that cause child's out-of-home placement). Mother attended the initial termination hearing on May 9, 2013. At the May 9 hearing, the court set the pre-trial conference for June 4, and Mother received a copy of Form 3 (Notice to Parent in Termination Action) warning that failure to attend the pre-trial conference may result in waiver of her rights.

¶4 Mother failed to appear at the pre-trial conference. In light of Mother's failure to appear without good cause, the juvenile court accelerated the pre-trial conference to a termination adjudication hearing. The court then heard testimony from the CPS case manager regarding Mother's lack of participation in services and the best interest of Child, and received additional evidence from ADES consisting of the case manager's written report. Mother's counsel was present at the hearing and had the opportunity to cross-examine the case manager and oppose the introduction of evidence. The juvenile court found that ADES proved the necessary elements of the statutory ground for termination and that termination of parental rights was in the best interest of Child; accordingly, the court ordered the termination of Mother's parental rights.

¶5 After the juvenile court filed the termination order in late June, Mother filed a motion to reconsider and to set aside the order, claiming that Mother had good cause for failing to appear at the pre-trial conference because she had not been reminded about the court date and had to attend supervised visitation with Child at the same time. The juvenile court denied this motion.

¶6 Mother then untimely appealed from the juvenile court's order, which the juvenile court excused based on the pendency of the motion to reconsider. We have jurisdiction under the Arizona Constitution, Article 6, Section 9 and A.R.S. ...


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