NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
ASHLEY E., Appellant,
v.
DEPARTMENT OF CHILD SAFETY1, J.N., Appellees.
No. 1 CA-JV 16-0080
FILED 10-18-2016
Appeal from the Superior Court in Maricopa County
No. JD 527323
The Honorable James P. Beene, Judge
AFFIRMED
COUNSEL
Vierling Law Offices, Phoenix
By Thomas A. Vierling
Counsel for Appellant
Arizona Attorney General’s Office, Tucson
By Daniel R. Huff
Counsel for Appellee, Department of Child Safety
1 Pursuant to S.B. 1001, Section 157, 51st Leg., 2d Spec. Sess. (Ariz.
2014) (enacted), the Arizona Department of Child Safety is substituted for
the Arizona Department of Economic Security in this matter. See ARCAP
27.
ASHLEY E. v. DCS, J.N.
Decision of the Court
MEMORANDUM DECISION
Judge Margaret H. Downie delivered the decision of the Court, in which
Presiding Judge Patricia K. Norris and Judge Samuel A. Thumma joined.
D O W N I E, Judge:
¶1 Ashley E. (“Mother”) appeals from an order terminating her
parental rights. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 In January 2014, the Department of Child Safety (“DCS”) filed
a petition seeking to have J.N. — born in May 2011 — declared a dependent
child. DCS had taken custody of J.N. several days previously and alleged
in its petition that Mother was “an active heroin user” who had refused
substance abuse treatment and neglected J.N. by failing to provide “basic
necessities of life, including food, clothing, shelter, medical care and
parental supervision.” At a hearing later that month, the juvenile court
found J.N. dependent as to Mother.
¶3 The initial case plan called for family reunification. DCS
identified several behavioral changes required of Mother. Mother, though,
“made little effort to demonstrate that she is sober or working towards any
kind of substance abuse treatment.” Mother also failed to keep DCS
apprised of her whereabouts or “give any assurances that she is not still
using heroin.” DCS made two referrals for substance abuse treatment, but
Mother did not participate on either occasion.
¶4 In May 2015, after the court changed the case plan to
severance and adoption, DCS filed a motion to terminate Mother’s parental
rights on the grounds of: (1) chronic substance abuse, with “reasonable
grounds to believe that the condition will continue for a prolonged
indeterminate period[;]” and (2) out-of-home placement for 15 months or
longer pursuant to court order. See Ariz. Rev. Stat. (“A.R.S.”) §§ 8-533(B)(3),
(B)(8)(c). Along with its motion, DCS filed a Notice of Hearing on Motion
for Termination of Parent-Child Relationship, which advised that an initial
hearing on DCS’s motion would occur on June 15, 2015. The notice also
stated, in bold print:
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ASHLEY E. v. DCS, J.N.
Decision of the Court
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.
¶5 Mother was not present when the June 15 initial hearing
commenced, though her counsel avowed that she was on her way. After
adjourning for nearly 90 minutes, the proceedings reconvened, with
Mother appearing telephonically. The court set the next hearing for July 27,
2015. Mother did not appear on July 27. The court reset the hearing for
August 12. Mother appeared on August 12 and contested the severance
motion. The court set both a mediation session and a pretrial conference
for October 1, 2015.
¶6 Mother failed to attend either the mediation or pretrial
conference on October 1. DCS asked the court to conduct the severance trial
in absentia. Over Mother’s counsel’s objection, the court agreed, noting that
Mother had been present in court when the hearing was set and had
received a Form 3 notice advising her of the consequences of failing to
appear at scheduled hearings. The court found there was no good cause for
Mother’s absence and proceeded with the severance trial. At the conclusion
of the trial, the court ruled that DCS had proven both of the alleged grounds
for termination.
¶7 Mother filed a “Motion for Reconsideration and to Set Aside
for Good Cause.” She argued that the court exceeded its statutory authority
by conducting the severance trial in her absence and contended, without
supporting evidence, that good cause existed for her failure to appear
because, after the hearing, she had “informed her counsel that she had been
hospitalized.” The court set Mother’s motion for an evidentiary hearing.
Mother failed to appear for that hearing. Counsel had no information about
Mother’s whereabouts and offered no evidence to support the claim that
Mother had been hospitalized on October 1.
¶8 The juvenile court affirmed its determination of “no good
cause” for Mother’s failure to appear on October 1, as well as its findings in
support of the severance decision. The court later issued a signed, written
3
ASHLEY E. v. DCS, J.N.
Decision of the Court
order terminating Mother’s parental rights, from which Mother timely
appealed.2 We have jurisdiction pursuant to Arizona Rule of Procedure for
the Juvenile Court (“Rule”) 103(A) and A.R.S. §§ 8-235(A), 12-120.21(A)(1),
-2101(A)(1).
DISCUSSION
¶9 Mother’s sole contention on appeal is that the juvenile court
lacked the authority to proceed to a severance trial when she failed to
appear for the October 1 pretrial conference. Specifically, she argues there
is a substantive distinction between a severance motion and a severance
petition and that the court may proceed in absentia after a parent fails to
appear for a pretrial conference only if a severance petition has been filed.
See A.R.S. § 8-863(C) (“If a parent does not appear at the [initial] hearing,
the court, after determining that the parent has been served as provided in
subsection A of this section, may find that the parent has waived the
parent’s legal rights and is deemed to have admitted the allegations of the
petition by the failure to appear. The court may terminate the parent-child
relationship as to a parent who does not appear based on the record and
evidence presented as provided in rules prescribed by the supreme court.”).
¶10 We review Mother’s arguments de novo because they require
interpretation of statutes and court rules. See Chartone, Inc. v. Bernini, 207
Ariz. 162, 167, ¶ 14 (App. 2004) (interpretation of court rules is a question
of law that is reviewed de novo); E. Vanguard Forex, Ltd. v. Ariz. Corp.
Comm’n, 206 Ariz. 399, 406, ¶ 19 (App. 2003) (appellate court reviews
questions of statutory interpretation de novo).
¶11 This Court recently addressed the same argument presented
in a different severance case, concluding that Rule 64(C) “authorizes the
juvenile court to proceed on a motion for termination of parental rights
when a parent fails to appear at a pretrial conference.”3 Marianne N. v. Dep’t
2 J.N.’s father’s parental rights were also terminated, but he is not a
party to this appeal.
3 Rule 64(C) states:
A notice of hearing shall accompany the motion or petition
for termination of parental rights and shall advise the parent
. . . of the location, date and time of the initial termination
hearing. In addition to the information required by law, the
notice of hearing shall advise the parent . . . that failure to
4
ASHLEY E. v. DCS, J.N.
Decision of the Court
of Child Safety, 1 CA-JV 16-0085, 2016 WL 5746243, at *2, ¶ 7 (Ariz. App. Oct.
4, 2016). We rejected the notion that Rule 64(C) unconstitutionally expands
the statutory bases for proceeding in a parent’s absence, holding that the
rule “is procedural and is not an unconstitutional exercise of judicial
authority.” Id. at *4, ¶ 14; see also Adrian E. v. Ariz. Dep’t of Econ. Sec., 215
Ariz. 96, 100, ¶ 12 (App. 2007) (interpreting Rule 64(C) as authorizing court
to terminate parental rights when parent fails to appear for status
conference on pending termination motion).
¶12 Mother does not contend she received inadequate notice of
the October 1 pretrial conference. Indeed, her counsel conceded at the
October 1 hearing that notice was not an issue. Nor does Mother challenge
the determination that her failure to appear was without good cause.
Under these circumstances, and because Rule 64(C) authorized the court to
conduct the severance trial in Mother’s absence, she has shown no error.
appear at the initial hearing, pretrial conference, status
conference or termination adjudication hearing, without good
cause, may result in a finding that the parent . . . has waived
legal rights, and is deemed to have admitted the allegations
in the motion or petition for termination. The notice shall
advise the parent . . . that the hearings may go forward in the
absence of the parent . . . and may result in the termination of
parental rights based upon the record and evidence
presented.
5
ASHLEY E. v. DCS, J.N.
Decision of the Court
CONCLUSION
¶13 For the foregoing reasons, we affirm the juvenile court’s order
terminating Mother’s parental rights.
AMY M. WOOD • Clerk of the Court
FILED: AA
6
Ashley E. v. Dcs, J.N.
Combined Opinion