from the Superior Court in Maricopa County The Honorable
Susanna C. Pineda, Judge No. JD21476 AFFIRMED
of the Court of Appeals, Division One 242 Ariz. 150 (App.
Clark Jones (argued), Law Office of H. Clark Jones, LLC,
Mesa, Attorneys for Brenda D.
Brnovich, Arizona Attorney General, Dominic E. Draye,
Solicitor General, Paula S. Bickett, Chief Counsel, Civil
Appeals Section, Amber E. Pershon (argued) and Toni M.
Valadez, Assistant Attorneys General, Phoenix, Attorneys for
Department of Child Safety
A. Vierling, Vierling Law Offices, Phoenix, Attorneys for
CHIEF JUSTICE PELANDER authored the opinion of the Court, in
which CHIEF JUSTICE BALES, and JUSTICES BRUTINEL, GOULD, and
LOPEZ joined. JUSTICE TIMMER, joined by JUSTICE BO LICK,
filed an opinion dissenting in part and concurring in part.
PELANDER VICE CHIEF JUSTICE
After the Arizona Department of Child Safety
("DCS") initiates proceedings to terminate parental
rights by motion under A.R.S. § 8-862(D), if a parent
fails to appear at a termination adjudication hearing without
good cause, Arizona law vests the juvenile court with
discretion to find that the parent has waived his or her
legal rights and admitted the motion's allegations.
A.R.S. § 8-863(C); Ariz. R.P. Juv. Ct.
("Rule") 66(D)(2). We address here how the statute
and rule apply when a parent, without good cause, appears
late for a termination adjudication hearing, after the
juvenile court has already found waiver.
We hold that a parent who fails to timely appear for a
duly-noticed termination adjudication hearing has
"failed to appear" under § 8-863(C) and Rule
66(D)(2). We further hold that if a juvenile court, faced
with a parent's non-appearance, exercises its discretion
to proceed with the hearing in the parent's absence after
finding waiver of the parent's legal rights, the rights
waived include the parent's due process rights to be
present and to participate and testify in the hearing. If the
parent never appears, when the hearing concludes the parent
will be deemed to have admitted the factual allegations in
the motion. On the other hand, if the parent appears late,
but before the termination adjudication hearing is concluded,
the parent may exercise his or her rights to testify, present
evidence, and participate for the duration of the hearing;
thus, the waiver of the parent's legal rights is
effective only until the parent's arrival and then ends.
The tardy parent, however, may not seek to start the hearing
anew by re-examining witnesses or reopening evidence that has
already been presented.
These waiver rules, however, do not apply to a parent's
right to counsel at a termination adjudication hearing, a
right that is unaffected by the parent's appearance or
absence. A parent's counsel may fully participate in the
hearing, including by contesting the motion's factual
allegations. Finally, we hold that when a juvenile court
finds that a parent waived his or her legal rights, the state
must nevertheless satisfy its burden of proof by presenting
sufficient evidence to establish an alleged ground for
termination and for a finding that termination is in the
child's best interests.
Brenda D. is Z.D.'s biological mother. Z.D. was born in
2005 with Down Syndrome and has permanent special needs. In
July 2014, DCS took custody of Z.D. and filed a petition
alleging that Z.D. was dependent due to Brenda's neglect.
The juvenile court found Z.D. dependent in May 2015. The
court ordered a case plan of family reunification. Over
several months, DCS provided Brenda with various
reunification and rehabilitative services, but Brenda's
participation in those services was, at best, sporadic.
In October 2015, DCS filed a motion to terminate Brenda's
parental rights. (DCS also filed a motion to terminate
Z.D.'s multiple alleged fathers' parental rights,
which are not at issue here.) As grounds for the severance,
DCS alleged Brenda's history of substance abuse and
Z.D.'s out-of-home placement. See A.R.S. §
8-533(B)(3), (B)(8)(a), (B)(8)(c) (authorizing, respectively,
termination based on substance abuse, and out-of-home
placement for six months and for fifteen months).
In early November, the juvenile court held an initial
termination hearing, which Brenda attended. At that hearing
the court scheduled the termination adjudication hearing for
two days beginning on June 15, 2016, at 1:30 p.m. The court
provided Brenda with a written notice ("Form 3")
that contained the following provision:
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 Pretrial
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
Ariz. R.P. Juv. Ct. Form 3.
Form 3 also stated that the termination adjudication hearing
was scheduled for June 15 and 16 at 1:30 p.m. Brenda signed
the form, which the juvenile court also read in open court.
See Rule 65(D)(3) (requiring the juvenile court at
the initial termination hearing to notify a parent of the
substance of Form 3). Brenda indicated that she understood
Nevertheless, Brenda did not appear on June 15, the first
scheduled day of the termination adjudication hearing.
Instead, she called the court and claimed that she was
experiencing severe back pain. The court continued the start
of the hearing until the next day and ordered Brenda to
appear in person with medical documentation of her back pain.
The following day, however, Brenda again failed to appear at
the 1:30 p.m. scheduled start time. She called the court
stating that she was running ten minutes late. But when the
court began the hearing at 1:50 p.m., Brenda was still
absent. After noting that the State's counsel, the DCS
case manager, the guardian ad litem, and Brenda's counsel
were all present, the juvenile court found that Brenda did
not have "good cause for her failure to appear" and
that she "waived her right to contest." The court
also instructed Brenda's counsel that he only had
"an opportunity to address . . . the weight of the
evidence, not the admissibility of the evidence" during
the hearing. Brenda's counsel did not object.
The court proceeded with the termination adjudication
hearing. After the State questioned the DCS case manager, the
guardian ad litem elicited testimony from that witness
supporting termination of Brenda's parental rights.
Brenda's counsel, in turn, cross-examined the case
manager about Brenda's history of substance abuse,
participation in rehabilitative services, and behavior during
supervised visitations with Z.D.
After the DCS case manager finished testifying, the juvenile
court noted at 2:14 p.m. that Brenda had "just walked
in." The court then reviewed several exhibits and found
that DCS had proven all three statutory grounds for
termination by clear and convincing evidence. While the court
was in the process of finding by a preponderance of the
evidence that termination was in Z.D.'s best interests,
Brenda interjected, "No, it's not" and