Clint A. v. Department of Child Safety and C.A.

• Decision Date: 20 July 2021
• Docket Number: 2 CA-JV 2021-0022
• Parties: Clint A., Appellant, v. Department of Child Safety and C.A., Appellees.
• Court: Arizona Court of Appeals

Clint A., Appellant, v. Department of Child Safety and C.A., Appellees.

No. 2 CA-JV 2021-0022

Court of Appeals of Arizona, Second Division

July 20, 2021

Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court

Appeal from the Superior Court in Pima County No. JD20190330, The Honorable Ken Sanders, Judge Pro Tempore

Sarah Michele Martin, Tucson Counsel for Appellant.

Mark Brnovich, Arizona Attorney General By Autumn Spritzer Assistant Attorney General, Tucson Counsel for Appellee Department of Child Safety.

Presiding Judge Eppich authored the decision of the Court, in which Judge Brearcliffe and Vice Chief Judge Staring concurred.

MEMORANDUM DECISION

EPPICH, PRESIDING JUDGE.

¶1 Clint A. appeals the juvenile court's January 2021 order and its February 2021 denial of his motion to set aside that order, terminating his parental rights to his son, C.A., born in September 2017, based on length of time in court-ordered care.^[1] See A.R.S. § 8-533(B)(8)(a), (c). He argues that A.R.S. § 8-863(C) and Rule 66(D)(2), Ariz. R. P. Juv. Ct., which allow the court to treat a parent's failure to appear for a termination hearing without good cause as a waiver of legal rights and an admission to the allegations in the motion to terminate, are unconstitutional because they violate due process rights. He also contends that the court erred in denying his motion to set aside. For the following reasons, we affirm.

Factual and Procedural Background

¶2 We view the evidence in the light most favorable to affirming the juvenile court's orders. See Christina G. v. Ariz. Dep't of Econ. Sec., 227 Ariz. 231, ¶ 13 (App. 2011) (termination order); Ezell v. Quon, 224 Ariz. 532, ¶ 2 (App. 2010) (denial of motion to set aside). In June 2019, C.A. was taken into custody after the Department of Child Safety (DCS) received reports that Clint and C.A.'s paternal grandmother had used methamphetamine in C.A.'s presence, that others used drugs in the home, and that C.A. had access to drugs and paraphernalia in the home. DCS filed a dependency petition, alleging that C.A. was dependent as to Clint because he had "failed to maintain a normal parental relationship with the child" and C.A. was "at risk for neglect" in Clint's care. C.A. subsequently tested positive for methamphetamine in a hair test, indicating he had "repeated and consistent exposure" to the drug.

¶3 In September 2019, the juvenile court adjudicated C.A. dependent, finding by a preponderance of the evidence that C.A. was "clearly at risk of neglect in [Clint's] care." DCS attempted to effectuate the case plan goal of family reunification by offering services such as random drug testing, supervised visitation, parenting classes, general case management, and child and family team meetings. Other than supervised visitation, Clint failed to comply with the case plan, and, in September 2020, he stopped participating in visits with C.A.

¶4 That same month, the juvenile court changed the case plan from family reunification to severance and adoption, noting Clint had not "engaged in any services or given the court any reason to not proceed to termination and adopt[ion]." Pursuant to the court's order, see A.R.S. § 8-862(D), DCS filed a motion to terminate the parent-child relationship on the grounds of nine and fifteen months in court-ordered care, see § 8-533(B)(8)(a), (c). DCS also filed a notice, informing Clint that his failure to appear at hearings could result in the court finding he had waived his legal rights and admitted the grounds against him and proceeding in his absence. See Ariz. R. P. Juv. Ct. 64(C). At the initial severance hearing, the court repeated that admonition, and Clint indicated that he had no questions.

¶5 On the first day of the contested severance hearing in December 2020, Clint appeared and consented to proceed telephonically. The juvenile court admitted exhibits but heard no testimony that day. At a dependency review hearing on January 12, 2021, Clint informed the court that he had recently tested positive for COVID-19. At that time, the court again found Clint had "never engaged in services" and "remains non-compliant." It affirmed the date for the second day of the contested severance hearing and again notified Clint that "[f]ailure to appear for the Contested Severance hearings without good cause will result in the proceedings going forward in his absence and the Court will rule on the motion for termination based upon the evidence presented."

¶6 On January 21, 2021, the second day of the contested severance hearing, Clint failed to appear. Clint's attorney stated that Clint had been "pretty sick" the week prior. After taking a short recess to confirm that Clint had not tried to call in, the juvenile court proceeded in his absence, finding there was "no known good cause for his failure to appear" and he had "been properly advised of the consequences of failing to appear." After hearing evidence and argument, the court found DCS had proven the grounds of nine months and fifteen months in court-ordered care by clear and convincing evidence and termination was in C.A.'s best interests by a preponderance of the evidence. The court thus granted the motion to terminate the parent-child relationship.

¶7 Approximately two weeks later, Clint filed a motion to set aside pursuant to Rule 46(E), Ariz. R. P. Juv. Ct., and Rule 60(b), Ariz. R. Civ. P. Citing Rule 60(b)(1) and (6), he requested that the juvenile court "find there was good cause for his absence on January 21, 2021, and he did not voluntarily waive his right to a trial." He attached a report showing he had tested positive for COVID-19 on January 11, 2021, and he further reasoned that he did not "believe that DCS c[ould] prove the alleged grounds by clear and convincing evidence." In February 2021, the court denied the motion, finding Clint had "failed to set forth good cause for his failure to maintain contact with his attorney, including his failure to notify his attorney that he was purportedly too ill to attend his ongoing termination trial." In addition, the court determined that Clint had failed to present any evidence of a meritorious defense, noting that Clint's "beliefs" were insufficient. In March 2021, Clint filed a motion for a delayed appeal from both the termination order and the denial of his motion to set aside. The court granted the motion, and this appeal followed.

Due Process Rights

¶8 Clint contends that § 8-863(C) and Rule 66(D)(2) are "facially unconstitutional because they violate the due process and liberty rights" granted by the Fourteenth Amendment of the United States Constitution and article II § 4 of the Arizona Constitution.^[2] Section 8-863(C) provides:

If a parent does not appear at the hearing, the court, after determining that the parent has been served . . ., 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.

In relevant part, Rule 66(D)(2) similarly states:

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 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.

¶9 As the state points out, however, Clint failed to raise this argument below. "Generally, failure to raise an argument in the juvenile court waives the issue on appeal." Logan B. v. Dep't of Child Safety, 244 Ariz. 532, ¶ 9 (App. 2018); see also Trantor v. Fredrikson, 179 Ariz. 299, 300 (1994) ("[A]bsent extraordinary circumstances, errors not raised in the trial court cannot be raised on appeal."). But waiver is discretionary, Logan B., 244 Ariz. 532, ¶ 9, and we have applied fundamental-error review to an argument first asserted on appeal by a parent challenging the termination of her parental rights, see Monica C. v. Ariz. Dep't of Econ. Sec., 211 Ariz. 89, ¶¶ 2, 22 (App. 2005). Accordingly, we do the same here.

¶10 To establish fundamental error, the complaining party "must show that the error complained of goes to the foundation of his case, takes away a right that is essential to his defense, [or] is of such magnitude that he could not have received a fair trial." Id. ¶ 24 (quoting State v. Henderson, 210 Ariz. 561, ¶ 24 (2005)); see State v. Escalante, 245 Ariz. 135, ¶ 21 (2018). The first two prongs also require a separate showing of prejudice, which involves a fact-intensive inquiry. Escalante, 245 Ariz. 135, ¶ 21. "[T]o prove prejudice, [the complaining party] 'must show that a reasonable [factfinder] could have reached a different result.'" Brenda D. v. Dep't of Child Safety, 243 Ariz. 437, ¶ 38 (2018) (quoting State v. Dickinson, 233 Ariz. 527, ¶ 13 (App. 2013)).

¶11 Clint asserts, "[T]he juvenile court's ruling that [he had] waived his legal rights and was deemed to have admitted the allegations in the petition by his failure to appear . . . is fundamental error which goes to the very foundation of his case." He contends that parents are entitled to "fundamental fairness" in severance proceedings but § 8-863(C) and Rule...