Trisha A. v. Department of Child Safety

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

         Opinion of the Court of Appeals, Division One, 245 Ariz. 24, 424 P.3d 425 (App. 2018).

         Sabrina Ayers Fisher, Maricopa County Public Advocate, Suzanne M. Nicholls (argued), Deputy Public Advocate, Mesa, Attorneys for Trisha A.

         Mark 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.

         OPINION

          LOPEZ, JUSTICE

         [¶1] 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

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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.

          I.

         [¶2] 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.

         [¶3] 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.

         [¶4] 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 adjudication hearing.

         [¶5] 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).

         [¶6] 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 interests.

         [¶7] 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.

         [¶8] 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 hearing").

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         [¶9] 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.

         [¶10] 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, 173 P.3d 463 (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, 410 P.3d 419 (2018). Trisha A. v. Dep’t of Child Safety, 245 Ariz. 24, 29 ¶ 10, 424 P.3d 425, 430 (App. 2018).

         [¶11] 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, 424 P.3d at 428, 436. 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 ¶¶ 22-28, 424 P.3d at 433-35.

         [¶12] 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.

          II.

         [¶13] 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, 399 P.3d 663, 674-75 (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, 336 P.3d 717, 720 (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.

         [¶14] 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, 995 P.2d 682, 684-85 (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, 410 P.3d at 430. When exercising this discretion,

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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.

         [¶15] 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, 401 P.3d 1002, 1005 (2017); Jimenez v. Sears, Roebuck & Co., 183 Ariz. 399, 406 n.9, 904 P.2d 861, 868 (1995).

          III.

         [¶16] 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, 410 P.3d at 424 (noting constitutional claims are reviewed de novo).

          A.

         [¶17] 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, 424 P.3d at 431. 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, 401 P.3d at 1007 ("When the juvenile court ‘go[es] forward’ [under Rule 64(C)] with the adjudication termination hearing in the parent’s absence, it can proceed as contemplated by § 8-863(C)...." (first alteration in original)). Consequently, we reject the court of appeals’ conclusion that the "good cause" standard varies between these rules.

         [¶18] Rule 46(E), which governs motions in juvenile court to set aside judgments in dependency, guardianship, and terminations of parental rights, expressly requires that a motion to set aside a juvenile court’s judgment conform to the requirements of Arizona Rule of Civil Procedure 60(b)-(d). See Ariz. R.P. Juv. Ct. 46(E). Arizona Rule of Civil Procedure 60(b) ("Civil Rule 60(b)"), in turn, sets forth the requirements for relief from civil judgments and orders, namely, six grounds a party can rely upon to set aside a judgment. Although Civil Rule 60(b) does not expressly include a meritorious defense requirement, we have interpreted the rule (and its antecedents) since territorial times to require a party seeking to set aside a judgment to also prove a meritorious defense. See, e.g., Gonzalez v. Nguyen,243 Ariz. 531, 534 ¶ 12, 414 P.3d 1163, 1166 (2018) ("[W]e have consistently bounded a trial court’s discretion under [Civil Rule 60(b)(6)] by requiring a defendant to assert a meritorious defense."); Daou v. Harris,139 ...