Brenda D. v. Dep't of Child Safety
| Decision Date | 23 March 2017 |
| Docket Number | No. 1 CA–JV 16–0277,1 CA–JV 16–0277 |
| Citation | 393 P.3d 930 |
| Parties | BRENDA D., Appellant, v. DEPARTMENT OF CHILD SAFETY, Z.D., Appellees. |
| Court | Arizona Court of Appeals |
Law Office of H. Clark Jones LLC, Mesa, By Clark Jones, Counsel for Appellant
Arizona Attorney General's Office, Phoenix, By Amber Pershon, Counsel for Appellee Department of Child Safety
OPINION
McMURDIE, Judge:
¶ 1 In this case, we are asked to determine if a parent has "failed to appear" for a termination adjudication hearing within the meaning of Arizona Revised Statutes ("A.R.S.") section 8–863(C) and Arizona Rule of Juvenile Procedure 66(D)(2), if the parent appeared approximately 25 minutes late. We are also asked to determine if the superior court improperly restricted a parent's counsel's participation at the hearing, and violated the parent's right to be heard by refusing to allow the parent to testify because of tardiness. We hold a parent has not "failed to appear" simply because he or she is tardy without good cause. We further hold the restriction placed on counsel prior to the parent's arrival at the hearing, and refusal to allow the parent to testify based on a tardy arrival, violated the parent's constitutional rights to due process. We therefore reverse and remand the case for further proceedings.
¶ 2 Brenda D. ("Mother") is the biological parent of Z.D., born in July 2005. Z.D. was born with Down Syndrome
, and has permanent special needs.
¶ 3 In July 2014, the Department of Child Safety ("DCS") filed a dependency petition alleging Z.D. dependent due to Mother's neglect, unstable home, and mental illness. Z.D. was adjudicated dependent as to Mother in May 2015. In October 2015, DCS filed a motion to terminate the parent-child relationship between Z.D. and her parents.1 DCS alleged three grounds for severance as to Mother: (1) history of substance abuse; (2) nine or more months in an out-of-home placement; and (3) fifteen or more months in an out-of-home placement.
¶ 4 The severance hearing was scheduled for two days, beginning on June 15, 2016. On the first day of the hearing, Mother's counsel informed the court that Mother was having severe back pain. The court continued the start of the hearing until the next day, but warned Mother's counsel that Mother needed to appear in person with medical documentation supporting her assertion of back pain. The next day, Mother was not present when the hearing began and, given her absence and the lack of an explanation, the superior court found Mother lacked good cause for her absence. The court then advised the parties, "[s]o, the only thing that [Mother's counsel] has an opportunity to address is the weight of the evidence, not the admissibility of the evidence." The hearing then went forward.
¶ 5 DCS called a department case manager to testify. After the direct examination, the superior court gave Mother's counsel limited opportunity to cross examine the case manager, reminding counsel he was limited to the "weight of the evidence."
¶ 6 Mother arrived 25 minutes after the hearing started, but prior to the close of DCS's case. Mother requested she be allowed to testify, and told the court her late arrival was due to a bus delay. The superior court denied Mother's request, and found Mother failed to appear in court at the start of the hearing without good cause.
¶ 7 The superior court found all three grounds for severance proven by clear and convincing evidence, and terminated Mother's parental rights. The court also found the severance was in Z.D.'s best interests. Mother timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 8–235(A), 12–120.21(A)(1) and –2101(A).2
¶ 8 "A parent has a constitutional right to raise his or her child without governmental intervention." Carolina H. v. ADES , 232 Ariz. 569, 571, ¶ 6, 307 P.3d 996 (App. 2013) (citing Troxel v. Granville , 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) ). "The government may not interfere with that fundamental right unless a court finds that: (1) the parent is unable to parent the child for any reason defined by statute; and (2) the parent has been afforded due process." Id. We view the facts "in the light most favorable to affirming the [superior] court's findings." Manuel M. v. ADES , 218 Ariz. 205, 207, ¶ 2, 181 P.3d 1126 (App. 2008). We do not reweigh the evidence on appeal. Jesus M. v. ADES , 203 Ariz. 278, 282, ¶ 12, 53 P.3d 203 (App. 2002).
¶ 9 Mother asserts her due process rights were violated. We are confronted with a situation where the superior court did not allow Mother to testify and restricted Mother's counsel's participation at the hearing because Mother did not appear at the start of the termination hearing.3 For the reasons discussed below, we agree with Mother's claim. We reverse and remand the case to the superior court for further proceedings consistent with this opinion.
¶ 10 Arizona Revised Statutes section 8–863(C) provides as follows regarding when parents waive their legal rights and are deemed to have admitted the allegations contained in a motion filed pursuant to section 8–862(D) ( "Permanency hearing"):
If a parent does not appear at the 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.
A.R.S. § 8–863(C) ; see also § 8–537(C) ().4 The Supreme Court has promulgated Rule 66(D)(2) to give effect to the statutory directives:
If the court finds the parent ... failed to appear at the termination adjudication hearing without good cause shown, 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 allegation[s] contained in the motion or petition for termination, the court may terminate parental rights based upon the record and evidence presented if the moving party or petitioner has proven grounds upon which to terminate parental rights.
¶ 11 Courts interpreting the statutes and rule have disagreed regarding when and how a superior court should apply a parent's failure to appear. See Manuel M. , 218 Ariz. at 214, ¶ 31, 181 P.3d 1126 ( with Christy A. , 217 Ariz. at 306, ¶ 24, 173 P.3d 463 ); but cf. Bob H. , 225 Ariz. at 283, ¶ 17, 237 P.3d 632 (). We add our voice to the interpretation of the statutes and rule as it applies to the facts of this case, and as noted below, disagree in part with the holding in Bob H.
¶ 12 In this case, we hold the superior court erred when it determined Mother failed to appear, because she arrived after the hearing started, but before the presentation of all evidence concluded. Further, even though Mother was present and prepared to proceed after DCS's portion of the case, the superior court erroneously found Mother waived her right to testify and to contest both the truth, as well as the sufficiency, of DCS's factual allegations supporting the grounds of severance, and to present evidence relevant to the best interests of her child.
¶ 13 In determining whether a parent failed to appear for purposes of waiver of his or her right to testify, we disagree with the decision and reasoning stated in Bob H. , 225 Ariz. at 282, ¶¶ 11–13, 237 P.3d 632. In Bob H. , mother arrived 30 minutes late, but before the close of DCS's case, and in time to testify in her own case. See id. This court affirmed the superior court's finding of no good cause for mother's failure to appear at the scheduled start of the hearing, and the court's waiver of mother's rights. See id. The court explained, "[w]hile it might be said that arriving late is better than not arriving at all, we cannot see how arriving late can constitute good cause for a failure to timely appear." Id. at 282, ¶ 12, 237 P.3d 632 (emphasis added).
¶ 14 The requirement to "timely appear," however, is prescribed neither by A.R.S. §§ 8–863(C), –537(C), nor by Rule 66(D).5 Neither the statutes nor the procedural rule require a parent to be present during DCS's case, or during his or her own counsel's presentation of evidence outside of the parent's testimony. See Manuel M. , 218 Ariz. at 214, ¶ 31, 181 P.3d 1126.
¶ 15 Both sections 8–863(C) and –537(C) state: "If a parent does not appear at the hearing, the court ... 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 ." A.R.S. §§ 8–863(C), –537(C) (emphasis added). The word "timely" does not appear in either statute. See id . If the legislature intended to prescribe sanctions for the failure to timely appear, it would have included the word "timely," as it has done in various other sections of Title 8. See, e.g. , A.R.S. § 8–106.01(G) (); A.R.S. § 8–390(A) and (D) (); A.R.S. § 8–459(A)(1) (); A.R.S. § 8–515.03(5) (); A.R.S. § 8–530(A)(3) (...
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