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Marianne N. v. Department of Child Safety

Court of Appeals of Arizona, First Division

October 4, 2016

MARIANNE N., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, O.N., I.T., A.G., Appellees.

         Appeal from the Superior Court in Coconino County No. S0300JD20090008 The Honorable Margaret A. McCullough, Judge

          Harris & Winger, Flagstaff By Chad Joshua Winger Counsel for Appellant

          Arizona Attorney General's Office, Mesa By Nicholas Chapman-Hushek Counsel for Appellee Department of Child Safety

          Presiding Judge Kenton D. Jones delivered the Opinion of the Court, in which Judge Randall M. Howe and Judge Donn Kessler joined.

          OPINION

          JONES, Judge:

         ¶1 Marianne N. (Mother) appeals the termination of her parental rights to O.N., I.T., and A.G. (the Children). Contrary to Mother's arguments, Arizona Rule of Procedure for the Juvenile Court 64(C), which permits the juvenile court to deem a parent's failure to appear at a pretrial conference without good cause a waiver of the opportunity to contest the allegations of a pending termination motion, is a proper exercise of judicial authority and therefore constitutional. Mother also failed to show the trial court erred in finding she did not establish good cause for her failure to appear at the pretrial conference and that severance is in the Children's best interests. Accordingly, we affirm.

         FACTS[1] AND PROCEDURAL HISTORY

         ¶2 In February 2015, DCS filed a petition alleging the Children were dependent as to Mother on the grounds of neglect and substance abuse.[2] After a contested hearing, the juvenile court adjudicated the Children dependent as to Mother in June 2015 and approved a case plan of family reunification concurrent with severance and adoption. Mother's participation in services was inconsistent; she also continued to minimize DCS's concerns regarding her substance abuse, history of domestic violence, and mental health and, on the rare occasion she participated in drug testing, tested positive for methamphetamine.

         ¶3 In November 2015, the case plan was changed to severance and adoption. DCS then moved to terminate Mother's parental rights on the grounds of neglect, substance abuse, and the length of time the Children had been in an out-of-home placement. See Ariz. Rev. Stat. (A.R.S.) § 8-533(B)(2), (3), (8).[3]

         ¶4 At the initial severance hearing, the juvenile court set a mediation and pretrial conference for January 20, 2016 and advised Mother both orally and in writing of the consequences if she failed to attend the initial severance hearing, pretrial conference, or termination hearing without good cause. Mother received, signed, and returned the Form 3: Notice to Parent in Termination Action, which correctly identified the date and time of the conference. However, Mother was not present at 1:00 p.m. when the January 20 mediation began. Although Mother attempted to call into the pretrial conference thirty minutes after it commenced, she had not received permission to appear telephonically, and the court did not allow her to participate by phone.

         ¶5 Through counsel, Mother reported having been given a handwritten piece of paper at the initial severance hearing indicating the pretrial conference was scheduled for January 27, 2016. The juvenile court noted the Form 3 Mother signed and returned contained the correct date and time for the conference, determined Mother did not have good cause for her failure to appear in person as ordered, and proceeded in her absence.

         ¶6 After receiving exhibits and testimony from the DCS case worker, the juvenile court found DCS had proven all three statutory grounds for severance by clear and convincing evidence and that severance was in the Children's best interests by a preponderance of the evidence. Accordingly, the court entered an order terminating Mother's parental rights to the Children. We have jurisdiction pursuant to A.R.S. §§ 8-235(A), 12-120.21(A)(1), -2101(A)(1), and Arizona Rule of Procedure for the Juvenile Court 103(A).

         DISCUSSION

         I.Rule 64(C) is ...


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