Page 381
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
Page 382
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 Mothers substance abuse and
neglect. On September 22, over Mothers 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 Mothers
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"). Mothers attorney told the juvenile court he
had informed Mother of the January hearing and he did not
know why she had not appeared. Because Mothers attorney
presented no good cause for Mothers absence, and pursuant to
DCSs 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 childrens 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 Mothers motion to set
aside the severance judgment due to her physical inability to
attend the January hearing.
[¶8]
DCS objected to Mothers 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 Mothers 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
childrens guardian ad litem argued Mother failed to notify
her counsel or the court that she could not attend the
January hearing. In response, Mothers counsel argued that
the Lifewell admission form did not indicate Mothers
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 DCSs request, the court of appeals stayed the
appeal pending this Courts decision in Brenda D. v.
Department of Child Safety, 243 Ariz. 437, 410 P.3d 419
(2018). Trisha A. v. Dept 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 courts
severance order, holding that requiring a meritorious defense
to set aside a Rule 64(C) accelerated hearing judgment
violated Mothers 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 parents 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 childs best interest. See,
e.g., § 8-533; Michael J. v. Ariz. Dept 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,
Page 384
courts should consider a parents 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 parents 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.
Dept 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 parents 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 courts 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 courts discretion under [Civil Rule 60(b)(6)] by
requiring a defendant to assert a meritorious
defense."); Daou v. Harris,139 ...