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Marianne N. v. Department of Child Safety

Supreme Court of Arizona

September 25, 2017

Marianne N., Appellant,
Department of Child Safety, O.N., I.T., A.G., Appellees.

         Appeal from the Superior Court in Coconino County The Honorable Margaret A. McCullough, Judge No. JD2009-0008

         Opinion of the Court of Appeals, Division One 240 Ariz. 470 (App. 2016)

          Chad Joshua Winger (argued), Harris & Winger, P.C., Flagstaff; Attorneys for Marianne N.

          Mark Brnovich, Arizona Attorney General, Dominic E. Draye, Solicitor General, Nicholas Chapman-Hushek (argued), JoAnn Falgout, Assistant Attorney Generals, Phoenix, Attorneys for Department of Child Safety

          JUSTICE TIMMER authored the opinion of the Court, in which CHIEF JUSTICE BALES, VICE CHIEF JUSTICE PELANDER, and JUSTICE BRUTINEL joined. JUDGE PETER J. ECKERSTROM, [*] joined by JUSTICES BOLICK and GOULD, dissented.



         ¶1 When termination of parental rights proceedings are initiated by motion in a pending dependency action, A.R.S. § 8-863(C) authorizes the juvenile court to find that a parent waived legal rights and admitted the motion's allegations if the parent "does not appear at the hearing." The court may then terminate that parent's relationship with the child. Rule 64(C), Ariz. R.P. Juv. Ct., authorizes the court to proceed in the same manner if a parent fails without good cause to appear at "the initial hearing, pretrial conference, status conference or termination adjudication hearing."

         ¶2 We here hold that applying Rule 64(C) in pretrial proceedings does not conflict with § 8-863(C) in violation of the separation of powers required by the Arizona Constitution, article 3.


         ¶3 The Department of Child Safety ("DCS") took custody of Marianne N.'s three children in February 2015 and placed them in foster care. In June, after a hearing at which Marianne testified, the juvenile court found the children dependent as to her on the ground of neglect. (The court also found the children dependent as to their respective fathers. The fathers' parental rights are not at issue here.) The court found that Marianne had continuing substance abuse issues and had exposed the children to inappropriate caregivers and safety risks. The court ordered DCS to continue providing family reunification services.

         ¶4 Marianne's participation in services was sporadic, and the children remained in foster care. At a permanency hearing held on November 30, the court changed the case plan to severance and adoption and directed DCS to file a motion to terminate Marianne's parental rights. DCS did so on the grounds of neglect, chronic abuse of dangerous drugs, and the length of time the children had been in an out-of-home placement. See A.R.S. § 8-533(B)(2), (3), (8).

         ¶5 The court held an initial termination hearing on December 18, which Marianne attended. The court scheduled a mediation and pretrial hearing for January 20, 2016, and set the termination adjudication hearing for February 24. The court provided Marianne a written notice ("the Form 3") informing her, in relevant part, as follows:

You are required to attend all termination hearings. If you cannot attend a court hearing, you must prove to the Court that you had good cause for not attending. If you fail to attend the Initial Termination Hearing, Termination Pre-trial Conference, or Termination Adjudication Hearing without good cause, the Court may determine that you have waived your legal rights, and admitted the allegations in the motion/petition for termination. The hearings may go forward in your absence, and the Court may terminate your parental rights to your child based on the record and evidence presented.

See Ariz. R.P. Juv. Ct. 65(D)(3) (requiring court at the initial hearing to notify a parent of the substance of Form 3). The Form 3 also stated that a mediation would take place on January 20, 2016, at 1:00 p.m. followed by a pretrial conference at 1:45 p.m. Marianne signed the form. The court likewise verbally warned Marianne twice that if she failed to attend future proceedings, it could proceed without her and find that she waived her rights and admitted DCS's allegations. Marianne did not respond to the court's warnings. Before concluding the hearing, the court found that Marianne had been "advised of the consequences of failure to attend future hearings."

         ¶6 Marianne did not appear at the scheduled mediation and pretrial hearing on January 20. Her attorney made "several attempts to contact her" by telephone without success. The court found that Marianne had notice of the hearing date and time, as shown by the Form 3, and had been warned about the consequences for non-attendance.

         ¶7 The court found that Marianne failed to appear without good cause and proceeded to conduct a termination hearing pursuant to Rule 64(C), which authorizes the court to proceed to a final termination hearing when a parent fails to appear without good cause at a pretrial conference. The court also found that Marianne had been served with the motion for termination of parental rights. DCS elicited testimony from a caseworker, and Marianne's attorney cross-examined her.

         ¶8 Thirty minutes after the hearing started, Marianne called the court asking to appear telephonically. She conferred separately with her attorney, who then related Marianne's explanation that the Form 3 listed a different date for the hearing. The court disbelieved Marianne because the Form 3 in the court's file listed the correct hearing date. The court therefore refused to permit Marianne to appear telephonically but indicated it would reconsider the decision if Marianne's copy of the Form 3, which may have been filled out separately from the original, bore an incorrect hearing date. (She never submitted her copy for inspection.

         ¶9 At the conclusion of the hearing, the court found that DCS had proven all three statutory grounds for termination by clear and convincing evidence and that termination was in the children's best interests. The court therefore terminated Marianne's parental rights. (The court also terminated parental rights of one of the fathers who did not attend the hearing. It confirmed the termination adjudication hearing date for the other two fathers who attended the hearing.).

         ¶10 Marianne appealed. Marianne N. v. Dep't of Child Safety, 240 Ariz. 470 (App. 2016). She argued for the first time that Rule 64(C) conflicts with A.R.S. § 8-863(C), which addresses the consequences for a parent's failure to appear at a hearing, and thus violates separation-of-powers principles. Id. at 472-73 ¶ 8. The court of appeals disagreed. It did not address whether the rule and statute conflicted but instead concluded that Rule 64(C) is a procedural rule and therefore was promulgated in a constitutional exercise of this Court's authority. Id. at 474 ¶ 14.

         ¶11 We granted review to decide the constitutionality of Rule 64(C), a recurring issue of statewide importance. We have jurisdiction pursuant to article 6, section 5(3) of the Arizona Constitution and A.R.S. § 12-120.24.




         ¶12 We here decide only whether Rule 64(C) violates separation- of-powers principles - the sole issue presented by Marianne-a constitutional issue that we review de novo. See State v. Nordstrom, 230 Ariz. 110, 115 ¶ 17 (2012). Before this Court, Marianne has not argued that the juvenile court abused its discretion under Rule 64(C) by proceeding to a termination hearing without her participation. Nor has she argued that applying Rule 64(C) denied her due process or interfered with her liberty interest in parenting her children.


         ¶13 Before turning to the merits, we consider DCS's argument that Marianne waived her challenge by failing to raise it to the juvenile court. Although generally we refuse to address an argument raised for the first time on appeal, that principle is jurisprudential, not jurisdictional. See City of Tucson v. Clear Channel Outdoor, Inc., 209 Ariz. 544, 552 ¶ 33 n.9 (2005). In light of the statewide significance of the issue here, and because the court of appeals decided it, we address the merits of Marianne's challenge. Cf. id. (noting that "good reason exists" to decide an issue not raised to the superior court when the issue has statewide importance and the court of appeals addressed it).



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