from the Superior Court in Maricopa County The Honorable
Arthur T. Anderson, Judge No. JD529230
of the Court of Appeals, Division One 245 Ariz. 24 (App.
Sabrina Ayers Fisher, Maricopa County Public Advocate,
Suzanne M. Nicholls (argued), Deputy Public Advocate, Mesa,
Attorneys for Trisha A.
Brnovich, Arizona Attorney General, O.H. Skinner, Solicitor
General, Brunn W. Roysden III, Division Chief Counsel,
Appeals and Constitutional Litigation Division, JoAnn Falgout
(argued), Assistant Attorney General, Phoenix, Attorneys for
Department of Child Safety
JUSTICE LOPEZ authored the opinion of the Court, in which
CHIEF JUSTICE BRUTINEL, VICE CHIEF JUSTICE TIMMER, and
JUSTICES GOULD, BALES (Retired), and PELANDER (Retired)
joined. JUSTICE BOLICK dissented.
We consider whether a parent must provide evidence of a
"meritorious defense" to succeed on a Rule 46(E)
motion to set aside a severance judgment following a Rule
64(C) acceleration of a final adjudication as a result of a
missed initial hearing, pretrial conference, or status
conference. See Ariz. R.P. Juv. Ct. 46(E), 64(C). We
hold Rule 46(E) requires evidence of a meritorious defense.
Trisha A. ("Mother") is the mother of two minor
children. On September 9, 2015, Mother was hospitalized for
substance abuse treatment for heroin and methamphetamine use.
Four days later, Mother left the hospital against medical
advice without completing the treatment program. That day,
the Department of Child Safety ("DCS") took custody
of her two children, placed them with their maternal
grandmother, and filed a dependency action, alleging the
children were dependent due to Mother's substance abuse
and neglect. On September 22, over Mother's objection,
the juvenile court found the children dependent.
Over the next eleven months, DCS offered Mother services to
help her achieve sobriety and to reunify her with her
children, including substance abuse testing and treatment,
parent-aide services, and visitation with the children.
However, Mother shunned the substance abuse testing and
treatment, failed to achieve sobriety, missed most of the
parent-aide sessions and many visits with her children, and
failed to maintain contact with the DCS case manager.
On August 3, 2016, nearly a year after the dependency
determination, DCS filed a petition to sever Mother's
parental rights on the grounds of abandonment, substance
abuse, and out-of-home placement. See A.R.S. §
8-533(B)(1), (3), (8)(a). As part of the proceedings, Mother
received and signed a "Notice of Parental Termination
Action," notifying her that failure to appear at certain
proceedings could result in the court finding she had waived
her legal rights and admitted the grounds against her and
proceeding in her absence with a final termination
Mother appeared at her initial severance hearing and initial
mediation but, despite notice, failed to appear for a
combined report and review status hearing and pretrial
conference set for January 18, 2017 (the "January
hearing"). Mother's attorney told the juvenile court
he had informed Mother of the January hearing and he did not
know why she had not appeared. Because Mother's attorney
presented no good cause for Mother's absence, and
pursuant to DCS's request, the court proceeded to an
accelerated severance hearing under Rule 64(C).
At the accelerated severance hearing, the DCS case manager
testified that Mother had only sporadic contact with the
children during the sixteen-month dependency, was unable to
maintain a normal parental relationship with them, and failed
to provide them with food and shelter. The case manager also
opined that Mother was unable to discharge her parental
duties due to substance abuse and her inability to maintain
sobriety. Based on this testimony and the record in the case,
the court found the three severance grounds proven by clear
and convincing evidence and, by a preponderance of the
evidence, that termination was in the children's best
Nine days later, Mother moved to set aside the severance
judgment pursuant to Rule 46(E), arguing that she failed to
appear at the January hearing because she had been admitted
that same day to an in-patient drug treatment program
("Lifewell"). Without giving DCS an opportunity to
respond, the juvenile court granted Mother's motion to
set aside the severance judgment due to her physical
inability to attend the January hearing.
DCS objected to Mother's motion and filed a motion to
have the court reconsider its order setting aside the
severance judgment, arguing that she failed to notify her
counsel or the court of her intended admission to Lifewell;
she had refused to participate in drug treatment for more
than a year and waited until the day of the pretrial
conference to do so; and she checked out of Lifewell only
four days after admission and did not complete the program.
DCS also urged the court to deny Mother's motion because
she failed to assert any meritorious defense to the
underlying severance action. The court set a February 23
status hearing to consider whether to "set aside the
set-aside" of the severance (the "February
Mother also failed to appear at the February hearing. DCS
argued that Mother failed to establish good cause for her
nonappearance at the January hearing because her Lifewell
admission form indicated that she was admitted at noon on
January 18 - an hour and a half after the time the January
hearing had been scheduled - and that Mother left four days
after admittance, against medical advice. The children's
guardian ad litem argued Mother failed to notify her counsel
or the court that she could not attend the January hearing.
In response, Mother's counsel argued that the Lifewell
admission form did not indicate Mother's check-in time
and that Mother had emailed him on February 19, stating that
she had been in jail and the hospital since January 8. The
court reinstated its January severance order finding Mother
failed to establish good cause for her absence. Mother
appealed, arguing only that the juvenile court erroneously
reinstated its severance judgment.
On appeal, the court of appeals ordered supplemental briefing
regarding (1) whether Rule 64(C) violates due process; (2)
whether the court should reconsider Christy A. v. Arizona
Department of Economic Security, 217 Ariz. 299 (App.
2007); and (3) whether, to the extent Christy A.
remains controlling law, a meritorious defense is required to
set aside Rule 64(C) accelerated hearing judgments. At
DCS's request, the court of appeals stayed the appeal
pending this Court's decision in Brenda D. v.
Department of Child Safety, 243 Ariz. 437 (2018).
Trisha A. v. Dep't of Child Safety, 245 Ariz.
24, 29 ¶ 10 (App. 2018).
After supplemental briefing and Brenda D.'s
issuance, the court of appeals vacated the juvenile
court's severance order, holding that requiring a
meritorious defense to set aside a Rule 64(C) accelerated
hearing judgment violated Mother's right to due process.
Id. at 27 ¶ 1, 35 ¶¶ 33-34. The court
reasoned that the meritorious defense requirement, as
recognized in Christy A., should apply only to Rule
66(D)(2) cases involving missed final termination hearings
rather than to Rule 64(C) cases involving missed pre-final
termination proceedings. Id. at 32-34 ¶¶
We granted review because the standard concerning a Rule
46(E) motion to set aside a severance order following a Rule
64(C) accelerated severance hearing presents a recurring
issue of statewide importance. We have jurisdiction pursuant
to article 6, section 5(3) of the Arizona Constitution.
As a preliminary matter, we do not consider the
constitutionality of Rule 64(C) accelerated severance
hearings because Mother did not raise the issue on appeal,
and we presume that such hearings are constitutional. See
State ex rel. Brnovich v. City of Tucson, 242 Ariz. 588,
599-600 ¶ 45 (2017) ("We generally do not reach out
to decide important constitutional issues or to upset
established precedent when no party has raised or argued such
issues."); Gallardo v. State, 236 Ariz. 84, 87
¶ 9 (2014) (noting that we "presume that the
legislature acts constitutionally" (internal quotation
marks omitted)). Although the dissent addresses the
constitutionality of Rule 64(C) accelerated severances,
infra ¶¶ 33-48, we are not persuaded to
depart from our customary approach to refrain from addressing
constitutional issues that are not raised by the parties.
We note, however, that even if a juvenile court proceeds with
an accelerated severance hearing following a parent's
waiver of rights under Rule 64(C), DCS must still prove, by
clear and convincing evidence, the underlying statutory
severance ground and, by a preponderance of the evidence,
that severance is in the child's best interest. See,
e.g., § 8-533; Michael J. v. Ariz. Dep't of
Econ. Sec, 196 Ariz. 246, 248-49 ¶ 12 (2000).
Moreover, in certain circumstances, parents are allowed at
least six months, or as many as fifteen months, to resolve
issues before DCS files a motion to sever parental rights.
See § 8-533(B)(8)(a)-(c). We also emphasize, as
we did in Brenda D., that juvenile courts'
authority to accelerate termination hearings under Rule 64(C)
is discretionary. 243 Ariz. at 448 ¶ 40. When exercising
this discretion, courts should consider a parent's
willingness to participate in the case, including availing
themselves of services intended to remedy the issues leading
to dependency, and the stage of the process.
We consider only whether the meritorious defense requirement
infringes a parent's due process rights in the context of
a Rule 46(E) motion to set aside a severance judgment entered
after a Rule 64(C) accelerated hearing. We note, however,
that the juvenile court did not consider, much less impose, a
meritorious defense requirement on Mother; rather, the court
reinstated the severance order because Mother failed to show
good cause for her nonappearance at the January hearing. But
because the court of appeals sua sponte raised the
meritorious defense issue, and the issue is a recurring one
of statewide importance and is fully briefed, we exercise our
discretion to review it. See Marianne N. v. Dep't of
Child Safety, 243 Ariz. 53, 56 ¶ 13 (2017);
Jimenez v. Sears, Roebuck & Co., 183 Ariz. 399,
406 n.9 (1995).
We review de novo whether requiring parents to show a
meritorious defense to set aside a judgment entered after a
Rule 64(C) accelerated severance procedure violates
parents' rights to due process. See Brenda D.,
243 Ariz. at 442 ¶ 15 (noting constitutional claims are
reviewed de novo).
Rule 64(C) (which applies to initial hearings, pretrial
conferences, status conferences, or termination adjudication
hearings), Rule 65(C) (which applies to the initial
termination hearings), and Rule 66(D)(2) (which applies to
final severance hearings) establish the procedures if a
parent fails to appear without "good cause." The
court of appeals reasoned that the "good cause"
standard varies between Rules 64(C), 65(C), and 66(D)(2)
because the "procedures and rights at stake in these
rules are distinctly different." Trisha A., 245
Ariz. at 30 ¶ 14. But the standard for good cause under
these rules should be consistent because the language of
these rules is identical or substantially similar, and Rule
64(C) pertains to all types of hearings, including initial
hearings, pretrial and status conferences, and termination
adjudication hearings. See Antonin Scalia &
Bryan A. Garner, Reading Law 170 (2012) (explaining
under the presumption of consistent usage canon that
"[a] word or phrase is presumed to bear the same meaning
throughout a text"). Notably, in Marianne N. v.
Department of Child Safety, we observed that, upon
acceleration, the termination hearing becomes a severance
hearing under A.R.S. § 8-863. 243 Ariz. at 58 ¶ 22
("When the juvenile court 'go[es] forward'
[under Rule ...