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Brenda D. v. Department of Child Safety

Court of Appeals of Arizona, First Division

March 23, 2017

BRENDA D., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, Z.D., Appellees.

         Appeal from the Superior Court in Maricopa County No. JD21476 The Honorable Susanna C. Pineda, Judge

         REVERSED AND REMANDED

         COUNSEL

          Law Office of H. Clark Jones LLC, Mesa By Clark Jones Counsel for Appellant

          Arizona Attorney General's Office, Phoenix By Amber Pershon Counsel for Appellee Department of Child Safety

          Judge Paul J. McMurdie delivered the opinion of the Court, in which Presiding Judge Kenton D. Jones and Judge Patricia K. Norris joined.

          OPINION

          McMURDIE, Judge

         ¶1 In this case, we are asked to determine if a parent has "failed to appear" for a termination adjudication hearing within the meaning of Arizona Revised Statutes ("A.R.S.") section 8-863(C) and Arizona Rule of Juvenile Procedure 66(D)(2), if the parent appeared approximately 25 minutes late. We are also asked to determine if the superior court improperly restricted a parent's counsel's participation at the hearing, and violated the parent's right to be heard by refusing to allow the parent to testify because of tardiness. We hold a parent has not "failed to appear" simply because he or she is tardy without good cause. We further hold the restriction placed on counsel prior to the parent's arrival at the hearing, and refusal to allow the parent to testify based on a tardy arrival, violated the parent's constitutional rights to due process. We therefore reverse and remand the case for further proceedings.

         FACTS AND PROCEDURAL BACKGROUND

         ¶2 Brenda D. ("Mother") is the biological parent of Z.D., born in July 2005. Z.D. was born with Down Syndrome, and has permanent special needs.

         ¶3 In July 2014, the Department of Child Safety ("DCS") filed a dependency petition alleging Z.D. dependent due to Mother's neglect, unstable home, and mental illness. Z.D. was adjudicated dependent as to Mother in May 2015. In October 2015, DCS filed a motion to terminate the parent-child relationship between Z.D. and her parents.[1] DCS alleged three grounds for severance as to Mother: (1) history of substance abuse; (2) nine or more months in an out-of-home placement; and (3) fifteen or more months in an out-of-home placement.

         ¶4 The severance hearing was scheduled for two days, beginning on June 15, 2016. On the first day of the hearing, Mother's counsel informed the court that Mother was having severe back pain. The court continued the start of the hearing until the next day, but warned Mother's counsel that Mother needed to appear in person with medical documentation supporting her assertion of back pain. The next day, Mother was not present when the hearing began and, given her absence and the lack of an explanation, the superior court found Mother lacked good cause for her absence. The court then advised the parties, "[s]o, the only thing that [Mother's counsel] has an opportunity to address is the weight of the evidence, not the admissibility of the evidence." The hearing then went forward.

         ¶5 DCS called a department case manager to testify. After the direct examination, the superior court gave Mother's counsel limited opportunity to cross examine the case manager, reminding counsel he was limited to the "weight of the evidence."

         ¶6 Mother arrived 25 minutes after the hearing started, but prior to the close of DCS's case. Mother requested she be allowed to testify, and told the court her late arrival was due to a bus delay. The superior court denied Mother's request, and found Mother failed to appear in court at the start of the hearing without good cause.

         ¶7 The superior court found all three grounds for severance proven by clear and convincing evidence, and terminated Mother's parental rights. The court also found the severance was in Z.D.'s best interests. Mother timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of ...


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