NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STEPHANIE M.,
Appellant,
v.
DEPARTMENT OF CHILD SAFETY, A.M.,
Appellees.
No. 1 CA-JV 15-0061
FILED 7-28-2015
Appeal from the Superior Court in Maricopa County
No. JD27871
The Honorable Connie Contes, Judge
AFFIRMED IN PART, VACATED AND REMANDED IN PART
COUNSEL
Vierling Law Offices, Phoenix
By Thomas A. Vierling
Counsel for Appellant
Arizona Attorney General’s Office, Mesa
By Eric K. Knobloch
Counsel for Appellee Department of Child Safety
STEPHANIE M. v. DCS, A.M.
Decision of the Court
MEMORANDUM DECISION
Judge Patricia A. Orozco delivered the decision of the Court, in which
Presiding Judge Patricia K. Norris and Judge Maurice Portley joined.
O R O Z C O, Judge:
¶1 Stephanie M. (Mother) appeals the juvenile court’s order
terminating her parental rights to A.M. (Child). Because we conclude the
juvenile court acted within its discretion in determining Mother failed to
appear without good cause shown, we affirm the grounds for termination.
The juvenile court made insufficient findings concerning Child’s best
interests, and we therefore vacate the termination order and remand for
findings on best interests in accordance with Arizona law.
FACTS AND PROCEDURAL HISTORY
¶2 Child was born in October 2011. The Department of Child
Safety (DCS) took custody of Child in February 2014 after police found
Mother intoxicated in a car parked at a traffic light. Child was in the car
with Mother and was observed to be filthy and covered with scratches and
sores. DCS filed a dependency petition that alleged Mother was neglecting
Child due to substance abuse. Child was found dependent as to Mother
and a family reunification case plan was established. Mother was offered
services including substance abuse testing and treatment, psychological
evaluations, parenting classes, parent-aide services, and supervised
visitation.
¶3 Mother either did not participate or minimally participated in
the offered services. After Mother failed to appear at a report and review
hearing because she was in jail, DCS moved to change the case plan to
severance and adoption, and the juvenile court agreed. DCS moved to
terminate Mother’s parental rights under Arizona Revised Statutes (A.R.S.)
sections 8-533.B.1, abandonment, -533.B.3., chronic substance abuse, and -
533.B.8(b), six months’ out-of-home placement.
¶4 DCS filed a notice of hearing on the termination motion,
which warned Mother that her failure to personally appear “may result in
a finding that you have waived your legal rights and have admitted the
allegations in the Motion.” The notice also informed Mother that the
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STEPHANIE M. v. DCS, A.M.
Decision of the Court
hearing may proceed “if you fail to appear without good cause,” and her
parental rights could be terminated “based upon the record and the
evidence presented to the Court.” Additionally, the juvenile court ordered
the Maricopa County Sheriff’s Office to secure Mother’s attendance at the
severance hearing.
¶5 Mother did not appear at the initial termination hearing, but
her appearance was waived by the juvenile court because Mother had been
extradited to Illinois. The juvenile court found that service on Mother was
complete through counsel, and the court ordered the community
coordinator to “assist in locating [Mother] while she is incarcerated in
Illinois so that she may appear telephonically at the Continued Initial
Severance Hearing.” The juvenile court also ordered that Mother appear in
person “if Mother is out of custody and back in Arizona at the time of the
Continued Initial [Termination].”
¶6 Mother failed to appear at the continued initial termination
hearing. Although Mother was no longer in jail, the juvenile court noted
that the parties “do not have information relating to [M]other’s current
whereabouts in Illinois.” Accordingly, the juvenile court found Mother had
failed to appear with no good cause “known or showed” and she had thus
“waived her right to contest” the termination motion. Subsequently, the
juvenile court heard testimony and admitted evidence regarding the
termination motion. Based on the evidence and testimony presented, the
juvenile court terminated Mother’s parental rights after finding that DCS
proved, by clear and convincing evidence, all three alleged statutory
grounds for termination and that termination was in Child’s best interests.
¶7 Approximately two weeks later, Mother, through counsel,
moved to set aside the termination order, alleging that Mother had “called
the telephone number she was provided by the case manager on the
morning of [the continued severance hearing] and was placed on hold.
Then the line was disconnected. Mother claims she called back
approximately four to five times and the calls were either disconnected or
not answered.” In its response, DCS argued that Mother never claimed she
attempted to contact DCS or her attorney for assistance, and Mother could
not corroborate, by affidavit or otherwise, her claim about disconnected or
unanswered calls. The juvenile court denied Mother’s motion to set aside.
¶8 Mother timely appealed. This court has jurisdiction pursuant
to Article 6, Section 9, of the Arizona Constitution, A.R.S §§ 8-235.A, 12-
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STEPHANIE M. v. DCS, A.M.
Decision of the Court
120.21.A.1, and -2101.A (West 2015),1 and Arizona Rule of Procedure for the
Juvenile Court 103(A).
DISCUSSION
¶9 Mother’s sole argument on appeal is that she was denied due
process by the juvenile court’s finding that she failed to appear without
good cause shown and the juvenile court’s failure to hold a hearing on her
motion to set aside the termination order. We review the juvenile court’s
denial of the motion to set aside a termination order for an abuse of
discretion. See Christy A. v. Ariz. Dep’t of Econ. Sec., 217 Ariz. 299, 305, ¶ 19
(App. 2007).
¶10 Mother contends that in failing to set a hearing on the motion
to set aside the termination order, the juvenile court “did not have an
adequate evidentiary basis to conclude that Mother’s failure to appear was
the product of her own voluntary, knowing, and intelligent conduct or
waiver.” However, Arizona law does not require a juvenile court to
conduct a hearing on a motion to set aside a termination order. Arizona
Rule of Procedure for Juvenile Court (Rule) 64.C provides that a parent
contesting a termination motion must receive a “notice of hearing”
informing the parent that a failure to appear may result in proceedings
going forward, which “may result in the termination of parental rights
based upon the record and evidence presented.” Rule 65.C.6.c additionally
requires merely that a juvenile court may proceed with adjudicating a
termination if:
[T]he court finds the parent . . . 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 . . . and that failure to appear may
constitute a waiver of rights and an admission to the
allegations contained in the termination motion or petition.
See also A.R.S. § 8-537.C (West 2015).
¶11 Here, it is uncontested that Mother had notice of the
continued severance hearing, and the juvenile court found proper service
through counsel. Although Mother contends that “there is no record
showing that Mother received a Form [3] informing her of the consequences
1 We cite the current version of applicable statutes and rules when no
revisions material to this decision have since occurred.
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STEPHANIE M. v. DCS, A.M.
Decision of the Court
. . . if she fails to appear[,]” she does not assert she never received the Notice
of Hearing filed by DCS with the written termination motion. The Notice
of Hearing stated:
You have a right to appear as a party in this proceeding. You
are advised that your failure to personally appear in court at
the initial hearing, pretrial conference, status conference, or
termination adjudication, without good cause shown, may
result in a finding that you have waived your legal rights and
have admitted the allegations in the Motion. In addition, if
you fail to appear without good cause, the hearing may go
forward in your absence and may result in termination of
your parental rights based upon the record and the evidence
presented to the Court.
This language sufficiently admonished Mother of the possible
consequences that failing to appear could produce. Arizona law does not
require an admonition be made on a Form 3. See Ariz. R.P. Juv. Ct. 64.C.
We therefore conclude that the Notice of Hearing was a sufficient
admonition of potential consequences in this case.
¶12 Even if the juvenile court had granted Mother a hearing on
the motion to set aside the termination order, Mother made no claim and
presented no evidence suggesting she could corroborate her assertion of
faulty telephonic communications as the reason for her failure to appear or
that she had a meritorious defense. See Christy A., 217 Ariz. at 304, ¶ 16
(noting that meritorious defenses cannot be established merely by
conclusions, assumptions, or affidavits based on anything other than
personal knowledge). Accordingly, the juvenile court did not abuse its
discretion in finding Mother had failed to appear without good cause
shown.
¶13 Although Mother waived her rights by failing to appear
without good cause shown, the juvenile court was still required to assess
the record and evidence presented to determine whether the legal grounds
for termination were established. See Manuel M. v. Ariz. Dep’t of Econ. Sec.,
218 Ariz. 205, 213, ¶ 28 (App. 2008). Terminating parental rights is a two-
step process that requires: (1) finding one of the grounds for termination in
A.R.S. § 8-533.B established by clear and convincing evidence; and (2) a
preponderance of evidence that termination is in the child’s best interests.
Ariz. Dep’t of Econ. Sec. v. Rocky J., 234 Ariz. 437, 440, ¶ 13 (App. 2014).
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STEPHANIE M. v. DCS, A.M.
Decision of the Court
¶14 The record supports the Juvenile court’s finding that DCS
established grounds for termination by clear and convincing evidence.
Mother was reportedly “high” when police encountered her in the event
that led to DCS’s involvement with Child. Mother repeatedly tested
positive for drugs while receiving services from DCS, and she did not or
could not provide a prescription for any drugs. Mother reportedly
admitted to a parent aide in August 2014 that she had a “pain pill” habit.
Although Mother received drug testing services and a TERROS referral
from DCS, Mother minimally participated and did not complete any of the
offered services. Accordingly, the juvenile court reasonably concluded that
Mother is unable to discharge her parental responsibilities due to chronic
substance abuse and that Mother’s condition will continue for a prolonged
indeterminate period. See A.R.S. § 8-533.B.3.
¶15 Concerning the juvenile court’s best interests finding, both the
hearing transcript and the juvenile court’s minute entry simply state that
DCS “met its burden of proof by a preponderance of the evidence that
termination is in the best interests of [Child].” Our supreme court has held,
however, that “a determination of the child's best interest[s] must include a
finding as to how the child would benefit from a severance or be harmed
by the continuation of the relationship.” Maricopa Cnty. Juv. Action No. JS-
500274, 167 Ariz. 1, 5 (1990). Findings must be specific enough to allow the
appellate court “to determine exactly which issues were decided and
whether the lower court correctly applied the law.” Ruben M. v. Ariz. Dep’t
of Econ. Sec., 230 Ariz. 236, 240, ¶ 24 (App. 2012); see also Ariz. R.P. Juv. Ct.
66.F.2.a.
¶16 Here, the general statement that DCS met its burden of proof,
without any indication of the conclusions drawn by the juvenile court about
how terminating Mother’s parental rights would benefit Child or prevent
further harm, is insufficient to allow this court to review whether the law
was correctly applied. Although the record contains evidence that Child is
adoptable and in an adoptive placement, see Audra T. v. Ariz. Dep’t of Econ.
Sec., 194 Ariz. 376, 378, ¶ 6 (App. 1998) (affirming a best interests finding
based on evidence that the child was adoptable and in an adoptive
placement), the juvenile court – not this court – is required to make best
interest findings. We therefore affirm the juvenile court’s findings pursuant
to A.R.S. § 8-533, but vacate its finding that termination was in Child’s best
interest. We remand to the juvenile court to reconsider whether
termination is in Child’s best interest. We leave it to the discretion of the
juvenile court to determine whether further testimony is necessary or if it
can make specific findings from the current record.
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STEPHANIE M. v. DCS, A.M.
Decision of the Court
CONCLUSION
¶17 The juvenile court did not abuse its discretion in finding
Mother failed to appear with no good cause shown and subsequently
denying Mother’s motion to reconsider without a hearing. Although we
affirm the termination grounds, because the juvenile court’s findings on
Child’s best interests are insufficient, we remand to the juvenile court to
make specific findings in accordance with Arizona law and to enter any
other orders it deems necessary.
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