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Trisha A. v. Department of Child Safety

Court of Appeals of Arizona, First Division

June 14, 2018

TRISHA A., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, L.A., L.A., Appellees.

          Appeal from the Superior Court in Maricopa County No. JD529230 The Honorable Arthur T. Anderson, Judge

          David W. Bell Attorney at Law, Higley By David W. Bell Counsel for Appellant

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

          Presiding Judge Lawrence F. Winthrop delivered the opinion of the Court, in which Judge Diane M. Johnsen and Judge Maria Elena Cruz joined.

          OPINION

          WINTHROP, Presiding Judge:

         ¶1Trisha A. ("Mother") appeals the juvenile court's order severing her parental rights to her two children ("the children"). Mother argues the court violated her due process rights by finding she did not have good cause for failing to appear at a pretrial hearing and, on an accelerated basis, severing her rights in absentia. In this opinion, we clarify the standard to apply when a parent moves to set aside a severance order entered after a case has been accelerated to a final adjudication as a result of a missed initial hearing, pretrial conference, or status conference pursuant to Arizona Rule of Procedure for the Juvenile Court 64(C).[1] In doing so, we also clarify the application of Christy A. v. Ariz. Dep't of Econ. Sec, 217 Ariz. 299 (App. 2007), and hold that the parent's burden of demonstrating good cause in this setting does not include providing evidence of a meritorious defense. As more fully discussed below, minimal due process safeguards and fundamental fairness require that we vacate the severance order here and remand this case for further proceedings consistent with this decision.

         FACTS AND PROCEDURAL HISTORY

         ¶2On September 9, 2015, Mother was admitted to Banner Behavioral Health for substance abuse treatment for heroin and methamphetamine use. Mother did not complete the hospital's substance abuse treatment and left against medical advice. On September 11, 2015, the Department of Child Safety ("DCS") took temporary custody of the children and placed them with their maternal grandmother. Thereafter, DCS filed a petition alleging the children were dependent as to Mother due to substance abuse and/or neglect. Mother contested the dependency, but the juvenile court found the children dependent as to her.

         ¶3On August 3, 2016, DCS filed a petition to sever Mother's parental rights based on abandonment, substance abuse, and out-of-home placement for a cumulative total period of nine months or longer. See Ariz. Rev. Stat. ("A.R.S.") § 8-533(B)(1), (3), (8)(a) (Supp. 2017).[2] As a part of the severance proceedings, Mother received, and signed, a "Notice to Parent in Termination Action" ("Form 3"). Form 3 advised Mother that if she failed to attend any severance-related hearing without good cause, the court may find that she waived her legal rights and admitted the alleged grounds for severance.

         ¶4 Mother attended the initial severance hearing, set pursuant to Rule 65, [3] and the initial mediation. The juvenile court excused Mother from the next pretrial hearing on September 22, 2016. At that pretrial hearing, the court set a combined report and review status hearing and pretrial conference for January 18, 2017 ("January Hearing").[4] The court also set the severance adjudication hearing for March 28 and March 30, 2017. Mother did not appear at the January Hearing. Mother's attorney informed the court that he had told Mother about the January Hearing, but that he had not heard from her. The court found that Mother did not have good cause for failing to appear. At the request of DCS, the court then converted the report and review hearing/pretrial conference into an accelerated severance hearing, and heard evidence from DCS in support of its severance petition.

         ¶5 The DCS case manager testified that Mother had only sporadic contact with the children during the 16-month dependency and that Mother had not provided the children with reasonable support because she had not sent the children any gifts, birthday cards, or letters. Through the case manager's testimony, DCS additionally contended that Mother was unable to maintain a normal parental relationship with the children because, in addition to failing to provide parental contact or guidance, she failed to provide the children with basic necessities such as food and shelter. Moreover, the case manager opined that Mother was unable to care for the children because of her history of substance abuse, inability to demonstrate sobriety, and failure to successfully participate in substance abuse treatment. At the end of a hearing that lasted twenty-five minutes, [5] the juvenile court found DCS established by clear and convincing evidence all three grounds for severance. The court also found by a preponderance of the evidence that severance was in the children's best interests.[6]

         ¶6 Nine days after the January Hearing, Mother moved to set aside the severance ruling, arguing she had been physically unable to appear. In support of her motion, Mother argued the maternal grandparents, who were present at the hearing, knew but failed to inform the juvenile court that she was in an in-patient drug treatment facility ("Lifewell") the morning of the hearing. Mother attached to her motion a copy of a "Behavioral Health Service Plan" form from Lifewell dated January 18, 2017, identifying her as a patient admitted to the facility. The court granted Mother's motion before DCS had an opportunity to respond, finding Mother was "physically unable to appear in Court [] for the Report and Review Hearing/Pretrial Conference set to January 18, 2017."

         ¶7 DCS filed an opposition to Mother's motion and moved the juvenile court to reconsider the order setting aside the severance ruling. DCS argued that Mother failed to establish good cause for her failure to appear at the January Hearing and requested a status conference to resolve the pending motions. In her response to the DCS motion, Mother agreed to the status conference "to discuss rescheduling the Severance Trial, " but maintained that the court properly granted her motion to set aside because she was physically unable to appear at the January Hearing.[7]

         ¶8 The juvenile court set a status conference for February 23, 2017 ("February Hearing") to determine whether to "set aside the set-aside." Mother did not appear. At the hearing, DCS argued that documents Mother submitted with her motion showed she was admitted to Lifewell at 12:00 p.m. on January 18, more than two hours after the scheduled start of the January Hearing. From that, DCS argued Mother's admission to Lifewell did not prevent her from appearing at the hearing. DCS further argued that the court should affirm the severance because Mother did not notify either DCS or her attorney that she was going to Lifewell. In Mother's defense, her attorney argued that the Lifewell paperwork did not show what time Mother arrived at the facility, but did show she was in Lifewell on January 18, 2017, the date of the January Hearing.[8]

         ¶9 DCS also argued that, even if the juvenile court found good cause for Mother's absence from the January Hearing, there was no good cause for Mother's absence from the February Hearing. The court, however, stated it was "not too concerned about [Mother's] non-appearance" at the informally set February Hearing. Ultimately, the court reinstated the severance ruling it had made at the conclusion of the January Hearing. The court based its decision on the "additional information about the circumstances surrounding Mother's non-appearance" and because Mother had been in "contact [via e-mail] with her lawyer, [and] could have told" her lawyer about her treatment.

         ¶10 Mother timely appealed. At DCS' request, we stayed the appeal pending the Arizona Supreme Court's decision in Brenda D. v. Dep't of Child Safety, 243 Ariz. 437 (2018). Following issuance of the Supreme Court's decision in that case, we directed Mother and DCS to file supplemental briefs. We have jurisdiction over the appeal pursuant to the Arizona Constitution, Article 6, Section 9; A.R.S. § 8-235(A) (2014); and Rule 103(A) of the Arizona Rules of Procedure for the Juvenile Court.

         ANALYSIS

         ¶11 On appeal, Mother argues the juvenile court violated her due process rights by setting aside its good cause finding. Mother additionally argues that courts should not apply civil procedure standards for setting aside default judgments to juvenile court proceedings because that standard does not protect a parent's constitutional interests in a severance proceeding. In response, DCS argues that in deciding whether to set aside a severance order entered in absentia, the juvenile court should apply a default judgment standard taken from civil procedure - requiring good cause, as demonstrated by proof of mistake, inadvertence, surprise, or excusable neglect and a meritorious defense. See, e.g., Richas v. Superior Court, 133 Ariz. 512, 514 (1982).

         I. Introduction

         ¶12Severance cases by their very nature are dependent on the unique factual circumstances of each case, but all of them implicate a parent's constitutional right to parent her children. See Minh T. v. Ariz. Dep't of Econ. Sec., 202 Ariz. 76, 79, ¶ 14 (App. 2001). This fundamental right does not disappear because a parent has not been a model parent or has temporarily lost custody of the children. Michael M. v. Ariz. Dep't of Econ. Sec, 202 Ariz. 198, 200, ¶ 8 (App. 2002) (quoting Maricopa Cty. Juv. Action No. JS-500274, 167 Ariz. 1, 4 (1990) (citation omitted)). Nor does a parent's fundamental right to raise her children disappear because the children "might be better off in another environment." Mary Ellen C. v. Ariz. Dep't of Econ. Sec, 193 Ariz. 185, 194, ¶ 43 (App. 1999) (quoting Maricopa Cty. Juv. Action No. JS-6520, 157 Ariz. 238, 244 (App. 1988)). Although the right to parent one's children is not absolute, justice requires that a parent receive due process and fundamentally fair procedures before this right is severed. Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 24 (2005) (citing Santosky v. Kramer, 455 U.S. 745, 754 (1982)).

         ¶13 Pursuant to Rule 66(D)(2) or Rule 64(C), juvenile courts have discretion to determine whether and to what extent a parent has waived her legal rights when she has failed to appear at a hearing and whether and when to proceed to a final adjudication hearing. Rule 66(D)(2) permits a juvenile court to sever a parent's rights in absentia at a scheduled final adjudication hearing if the court finds that the parent does not have good cause for her absence, the parent was properly served pursuant to Rule 64, and the parent was previously advised of the potential consequences of her failure to appear. Rule 64(C) permits a juvenile court that finds a parent has missed an initial hearing, pretrial conference, or status conference to convert that preliminary proceeding into an accelerated final adjudication hearing, and to sever a parent's rights based on the record created at the accelerated severance hearing.[9]

         ¶14 Not all juvenile court judges follow the same Rule 64(C) procedure when a parent misses a scheduled pre-adjudication hearing; some judges routinely accelerate the final severance hearing, while others do not. Although the waiver language of Rule 64(C) is similar to that of Rule 66(D)(2), the procedures and rights at stake in these rules are distinctly different. Indeed, this case highlights the opposing interests at stake in a severance hearing and the difficulty of applying a uniform procedure to balance a parent's fundamental right to parent her children with the State's interest in efficiently providing the children with permanency, stability, and safety in both the Rule 66(D)(2) and Rule 64(C) contexts. As such, we examine these provisions in detail.

         II. Rule 66(D)(2)

         ¶15Rule 66(D)(2) provides:

If the court finds the parent, guardian or Indian custodian failed to appear at the termination adjudication hearing without good cause shown, had notice of the hearing, was properly served pursuant to Rule 64 and had been previously admonished regarding the consequences of failure to appear, including a warning that the hearing could go forward in the absence of the parent, guardian or Indian custodian and that failure to appear may constitute a waiver of rights, and an admission to the allegation contained in the motion or petition for termination, the court may terminate ...

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