Christy A. v. Ariz. Dept. of Economic Sec.
| Decision Date | 24 December 2007 |
| Docket Number | No. 1 CA-JV 07-0078.,1 CA-JV 07-0078. |
| Citation | 173 P.3d 463,217 Ariz. 299 |
| Parties | CHRISTY A., Appellant, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, Courtney A., Billy A., Appellees. |
| Court | Arizona Court of Appeals |
Robert D. Rosanelli, Phoenix, Attorney for Appellant.
Terry Goddard, Arizona, Attorney General by Carol A. Salvati, Assistant Attorney General, Phoenix, Attorneys for Appellee Arizona Department of Economic Security.
Bruce Peterson, Office of the Legal Advocate by Pamela J. Eaton, Deputy Legal Advocate, Phoenix, Guardian ad Litem for Appellees Courtney A. and Billy A.
¶ 1 Christy A. ("Mother") appeals from the juvenile court's order denying her motion to set aside the entry of default and default judgment terminating her parent-child relationship with Courtney A. and Billy A. (collectively "the children") pursuant to Arizona Revised Statutes ("A.R.S.") section 8-533(B)(8)(a)-(b) (2007),1 the provisions permitting severance based on nine-month and fifteen-month out-of-home placement. Mother argues that the court (1) abused its discretion in denying her motion to set aside the entry of default and default judgment, (2) denied her due process by excluding her from the evidentiary adjudication hearing, (3) denied her effective assistance of counsel by conducting that adjudication hearing in absence of counsel, and (4) denied her due process by advising Arizona Department of Economic Security ("ADES") of the appropriate procedure to use in responding to a potential motion to set aside judgment. For the following reasons, we affirm in part, vacate in part, and remand for further proceedings consistent with this decision.
¶ 2 On April 22, 2005, the Peoria Police Department executed a lawfully authorized search warrant on the property where Mother and the children resided.2 Because of concerns that drugs, drug paraphernalia, and firearms found in the front house were within the reach of the children, the trailer had rotting food and exposed wiring, and the children were "somewhat dirty," the Peoria Police Department called Child Protective Services ("CPS"). The children were taken into CPS's custody and eventually placed with Mother's great aunt and uncle.
¶ 3 On April 28, 2005, ADES filed a dependency petition regarding the children, alleging that Mother was unable to parent due to unsafe conditions at home, substance abuse, and neglect stemming from the April 22 incident. At a preliminary protective hearing on May 3, 2005, Mother denied the allegations of the petition and submitted the issue to the juvenile court. The juvenile court found the allegations of the petition to be true by a preponderance of the evidence and that the children were dependent as to Mother. ADES offered reunification services, including visitation with the children, urinalysis testing, parenting classes, Value Options, mental health assessment, TERROS Family First, psychological evaluation with recommendations, transportation, bus tickets, and assistance in obtaining stable housing and income. Mother failed to substantially comply with most of the services offered but was "fairly consistent" in visiting her children. At an April 7, 2006 permanency planning hearing, the juvenile court granted ADES's motion to change the case plan from reunification to severance and adoption.
¶ 4 On April 12, 2006, ADES filed a motion to terminate Mother's parental rights on the grounds that she was unable to discharge her parental responsibilities due in part to a history of chronic substance abuse and that she had substantially neglected or willfully refused to remedy the circumstances that caused the children to remain in out-of-home placement for a cumulative time period of nine months or more. See A.R.S. § 8-533(B)(3), (8)(a). ADES later amended the motion to include out-of-home placement for a cumulative time period of fifteen months or more as an additional ground for severance. See A.R.S. § 8-533(B)(8)(b). The motion further alleged that termination of Mother's parental rights was in the children's best interests.3
¶ 5 At a May 5, 2006 initial severance hearing, Mother denied the allegations of the motion and requested a jury trial, and the juvenile court advised and provided her with a Form III, "Notice to Parent in Termination Action."4
¶ 6 The juvenile court originally scheduled a severance jury trial for July 31, 2006. However, after being rescheduled several times,5 the trial was eventually scheduled for December 15, 2006.
¶ 7 Mother failed to personally appear on December 15, 2006, but her court-appointed counsel did appear, and re-urged the pending motion to withdraw as counsel. ADES and the guardian ad litem for the children moved to default Mother and to permit ADES to proceed with the severance hearing in absentia. The juvenile court entered a default against Mother; however, due to court congestion and the scheduling of other matters, testimony to establish the severance grounds and best interests was postponed until December 22, 2006. The court then granted the motion to withdraw filed prior to trial by Mother's court-appointed counsel.
¶ 8 Now unrepresented,6 Mother appeared at the start of the December 22, 2006 hearing and made an oral request that the previously entered default be set aside. The juvenile court reappointed the same counsel to assist Mother in determining whether there were grounds to file an appeal or a motion to set aside judgment, but then excluded Mother from the hearing. After Mother was ordered to leave, the juvenile court received testimony from Sandra Lopez, the assigned case manager, and documentary evidence offered by ADES. At the conclusion of the hearing, the juvenile court granted the motion for termination of Mother's parental rights, finding that ADES had proven by clear and convincing evidence that grounds for severance existed pursuant to A.R.S. § 8-533(B)(8)(a)-(b) and that termination of Mother's parental rights was in the children's best interests.7 On January 8, 2007, the juvenile court filed a signed order terminating Mother's parental rights as to the children.
¶ 9 Because appointed counsel might be a potential witness if a motion to set aside judgment were filed, the juvenile court, on January 12, 2007, appointed Stephen Wallin as Mother's counsel.
¶ 10 On March 7, 2007, Mother filed a motion to set aside the entry of default and default judgment, and ADES and the guardian ad litem for the children filed responses.8 On March 28, 2007, the juvenile court held an evidentiary hearing on Mother's motion and took the matter under advisement. On April 16, 2007, the juvenile court in a signed minute entry denied Mother's motion.
¶ 11 Appellant filed a timely notice of appeal. We have appellate jurisdiction pursuant to A.R.S. § 8-235(A) (2007) and Rule 88(A) of the Arizona Rules of Procedure for the Juvenile Court ("ARPJC").
¶ 12 On appeal, Mother argues that the juvenile court abused its discretion in denying her motion to set aside the entry of default. We disagree.
¶ 13 On December 15, 2006, the date set for the termination adjudication hearing, Mother failed to appear. Before defaulting Mother, the juvenile court questioned Mother's attorney and Ms. Lopez regarding Mother's nonappearance. Mother's attorney told the court that his law firm sent a letter on October 22, 2006 to Mother's last known address advising her of the December 15, 2006 trial date. According to Ms. Lopez, she hand-delivered a letter to Mother on October 26, 2006, informing her of the date, time, and place of the December 15 trial and orally discussed with Mother the importance of being present at all the hearings and of contacting her attorney. The juvenile court found that Mother had been previously provided with a Form III notice advising her of the need to appear at all court hearings, had been advised at prior hearings that her presence was required at all hearings, had been advised by counsel and Ms. Lopez regarding the date and time of the trial, and had not shown good cause for her absence. Accordingly, the juvenile court entered a default as to Mother pursuant to A.R.S. § 8-537(C) (2007) and ARPJC 66(D)(2).9
¶ 14 As an initial matter, we observe that neither A.R.S. § 8-537(C) nor ARPJC 66(D)(2) expressly adopts or references the concept of "default"; rather, both speak in terms of "waiver of rights." However, it is apparent that, in practice, the juvenile court has engrafted the concept of "default" from Rule 55 of the Arizona Rules of Civil Procedure ("ARCP") into the juvenile court rules or, at least, is utilizing the "default" terminology when a parent fails to appear. We think the better course would be for the juvenile court to instead consider whether the parent can show "good cause" as to why they failed to personally appear, and whether, under the circumstances, such failure should constitute a "waiver of rights."
¶ 15 In her subsequent motion to set aside the default, Mother argued that on December 14, 2006, she was told by Ms. Lopez that the trial had been continued again and that Ms. misstatement constituted excusable neglect.10 Mother also argued that she had a "meritorious defense"11 on the issue of best interests because she had consistently visited her children and was strongly bonded to them.
¶ 16 Although not completely analogous in parental cases, we find the general case law concerning defaults in civil cases, particularly as it relates to finding a waiver of rights, to be instructive. A trial court may set aside an entry of default if there is "good cause shown." Ariz. R. Civ. P. 55(c). "The test of good cause is the same for an entry or judgment of default." Webb v. Erickson, 134 Ariz. 182, 185-86, 655 P.2d 6, 9-10 (1982). In order to show good cause, the moving party must show that (1) mistake, inadvertence, surprise or excusable neglect exists and (2) a...
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