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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
IN RE TERMINATION OF PARENTAL RIGHTS AS TO P.P.
No. 1 CA-JV 22-0278
FILED 6-15-2023
Appeal from the Superior Court in Maricopa County
No. JD39038
The Honorable Todd F. Lang, Judge
VACATED AND REMANDED
COUNSEL
Maricopa County Public Advocate’s Office, Mesa
By Suzanne Sanchez
Counsel for Appellant
Arizona Attorney General’s Office, Tucson
By Jennifer Blum
Counsel for Appellee Arizona Department of Child Safety
IN RE TERM OF PARENTAL RIGHTS AS TO P.P.
Decision of the Court
MEMORANDUM DECISION
Judge D. Steven Williams delivered the decision of the court, in which
Presiding Judge Jennifer M. Perkins and Judge Angela K. Paton joined.
W I L L I A M S, Judge:
¶1 Jose P. (“Father”) appeals the juvenile court’s order
terminating his parental rights. For the following reasons, we vacate and
remand.
FACTUAL AND PROCEDURAL HISTORY
¶2 The Department of Child Safety (“DCS”) investigated Hailey
S.’s (“Mother”) home well before she gave birth to Penelope (a pseudonym)
in 2021. Those investigations led to the termination of Mother’s parental
rights to Penelope’s older sibling. Less than two weeks after Penelope was
born, DCS removed her from Mother’s care, in part, because of (1) both
parents’ inability to provide for Penelope’s basic needs including a lack of
stable housing and history of homelessness, (2) Father’s pending domestic
violence charges against Mother, and (3) reports that Mother tested positive
for THC at four separate prenatal visits. DCS petitioned for dependency.
¶3 Father was appointed counsel but never appeared at any
dependency hearing and failed to participate in any reunification services
offered him by DCS. Father did, however, contact DCS once or twice. The
juvenile court found Penelope dependent in 2022.
¶4 When Penelope was nearly eight months old, the juvenile
court granted DCS’s request to change the case plan from family
reunification to severance and adoption and allowed Father’s
court-appointed counsel to withdraw from representation. The next month,
DCS moved to terminate Father’s parental rights on grounds of
abandonment and six-months in an out-of-home placement. The court did
not reappoint counsel to represent Father.
¶5 DCS attempted to serve Father personally but could not locate
him and was told by Father’s brother that Father was homeless. DCS then
served the termination motion through publication. DCS’s publication
notice identified October 25, 2022, as the date of the initial termination
hearing and admonished Father of the potential consequences should he
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IN RE TERM OF PARENTAL RIGHTS AS TO P.P.
Decision of the Court
fail to appear at that hearing, including the court proceeding in his absence
and terminating his parental rights.
¶6 Father failed to appear for the hearing. The juvenile court
found that Father had been properly served, and that “having failed to
appear after proper notice, [was] deemed to have waived his right to contest
the allegations in the [termination] motion.” The court “preserve[d] father’s
failure to appear” for a second hearing, scheduled for November 22, 2022,
to allow DCS to present evidence in support of its termination motion. DCS,
as anticipated, presented evidence at that second hearing and the court
terminated Father’s parental rights.
¶7 Father timely appealed. We ordered supplemental briefing on
an issue both parties touched on in their briefs—the juvenile court’s failure
to appoint Father counsel before terminating his parental rights.
¶8 We have jurisdiction to consider Father’s appeal under Article
6, Section 9, of the Arizona Constitution and A.R.S. §§ 8-235,
12-120.21(A)(1), and 12-2101(A)(1).
DISCUSSION
¶9 Parental rights are fundamental, but not absolute. Dominique
M. v. Dep’t of Child Safety, 240 Ariz. 96, 97, ¶ 7 (App. 2016). When the State
acts to terminate a parent’s rights, it must provide that parent with due
process. See Maricopa Cnty. Juv. Action No. JS-501904, 180 Ariz. 348, 355
(App. 1994). We review de novo issues of due process. Brenda D. v. Dep’t of
Child Safety, 243 Ariz. 437, 442, ¶ 15 (2018).
¶10 Indigent parents have a right to court-appointed counsel in
parental termination proceedings under A.R.S. § 8–221(B); by rule, Arizona
Rule of Juvenile Procedure 303(b); and as a matter of due process, Daniel Y.
v. Ariz. Dep’t. of Econ. Sec., 206 Ariz. 257, 260, ¶ 14 (App. 2003). Section
8–221(B) mandates that, for dependency and termination proceedings, “[i]f
a parent . . . is found to be indigent and entitled to counsel, the juvenile
court shall appoint an attorney to represent the person unless the person
knowingly, intelligently and voluntarily waives counsel.” (Emphasis
added).
¶11 At the beginning of the dependency, the juvenile court
appointed Father counsel, seemingly based, in part, upon DCS’s allegation
that Father’s “history of homelessness” prevented him from providing for
Penelope’s “basic needs, such as . . . shelter.” DCS’s report to the court,
which was dated just two days after filing the dependency petition and
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IN RE TERM OF PARENTAL RIGHTS AS TO P.P.
Decision of the Court
prepared for the initial dependency hearing, stated that Father was
“homeless,” residing at the Phoenix Rescue Mission, and had “no earnable
income.” Though the court never made an express finding of Father’s
indigency, it impliedly—and appropriately—did so when it appointed
counsel. See Mary Lou C. v. Ariz. Dep’t. of Econ. Sec., 207 Ariz. 43, 50, ¶ 17
(App. 2004) (“If the juvenile court fails to expressly make a necessary
finding, we may examine the record to determine whether the facts support
that implicit finding.”).
¶12 The juvenile court thereafter never required more of Father to
prove indigency. And additional record evidence suggests that Father’s
indigent status never changed. For example, when DCS attempted to serve
Father the termination motion at an address it had for him, Father’s brother
spoke to the process server stating that Father did not live there and was
homeless. An affidavit of nonservice to that effect was submitted to the
court. No party ever challenged Father’s indigency throughout either the
dependency or termination proceedings. The court’s appointment of
counsel for Father was entirely proper.
¶13 It is true that Father’s participation here was minimal, at best.
Though Father contacted DCS on one or two occasions, he never
communicated with counsel, never attended any court hearing, and never
engaged in DCS offered services. Regardless of Father’s lackluster
involvement, however, as an indigent parent his right to counsel was not
contingent upon his efforts to reunify with Penelope.
¶14 And though Father was provided notice of the possible
consequences of failing to appear for the initial termination hearing,
including terminating his parental rights, Father was not—nor should he
have been—notified that his failure to appear at a scheduled hearing could
result in waiving his right to court-appointed counsel. Manuel M. v. Ariz.
Dep’t of Econ. Sec., 218 Ariz. 205, 211, ¶ 20 (App. 2008) (“[A] parent’s
non-appearance cannot constitute a constructive waiver of any rights that
the parent has not been specifically informed he or she could lose by failing
to appear.”) (as corrected).
¶15 Because Father was indigent, he was entitled to
court-appointed counsel before having his parental rights terminated.
Father never knowingly, intelligently, and voluntarily waived that right.
Consequently, Father’s due process rights were violated when his parental
rights were terminated without representation. Accordingly, we reverse the
termination order and remand for further proceedings consistent with this
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IN RE TERM OF PARENTAL RIGHTS AS TO P.P.
Decision of the Court
decision. Father’s challenge of the adequacy of notice for the November 22,
2022, hearing is moot.
CONCLUSION
¶16 For the foregoing reasons, we vacate and remand.
AMY M. WOOD • Clerk of the Court
FILED: AA
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