Kathleen H. v. Ariz. Dep't Of Econ. Sec.
| Citation | 237 P.3d 632,225 Ariz. 279 |
| Decision Date | 10 August 2010 |
| Docket Number | No. 1 CA-JV 09-0211.,1 CA-JV 09-0211. |
| Parties | Bob H., Kathleen H., Appellants, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, B.F., Appellees. |
| Court | Arizona Court of Appeals |
OPINION TEXT STARTS HERE
Terry Goddard, Arizona Attorney General By Kathryn E. Harris, Assistant Attorney General, Mesa, Attorneys for Appellee Arizona Department of Economic Security.
Jennifer Perkowski, Mesa, Attorney for Appellant Bob H.
Denise L. Carroll, Scottsdale, Attorney for Appellant Kathleen H.
Vierling Law Office By Thomas A. Vierling, Phoenix, Attorney for Appellee B.F.
Virginia S. Matte, Phoenix, Minor's guardian ad litem.
¶ 1 Bob H. (Father) and Kathleen H. (Mother) appeal from the juvenile court's order terminating their parent-child relationships with their child, B.F. 1 For the following reasons, we affirm in part and reverse and remand in part.
¶ 2 On October 2, 2009, the Arizona Department of Economic Security (ADES) filed a motion for termination of the parent-child relationships (Motion for Termination) between Mother and Father and B.F. Pursuant to Arizona Revised Statutes (A.R.S.) section 8-533 (Supp. 2009), 2 ADES alleged Mother and Father had abandoned B.F. The juvenile court set an initial severance hearing (Severance Hearing) for 8:30 a.m. on November 2, 2009. Through a Form III Notice to Parent in Termination Action (Form III), 3 Mother and Father were provided with notice of the Severance Hearing's date and time. Mother and Father were also provided thirty-day bus passes to ensure transportation to the Severance Hearing.
¶ 3 The morning of November 2, 2009, the juvenile court delayed the start of the hearing after Mother's counsel called and said he would be thirty minutes late because he had to appear at another court hearing several miles away. Eventually, the juvenile court proceeded at approximately 8:56 a.m. even though Mother's counsel had not arrived. When the Severance Hearing began, both Mother and Father were also absent. The juvenile court confirmed that both Mother and Father were served a Form III, then found that there was “no good cause for either parent's failure to appear ... and they therefore waive [d] their right to contest the allegations in the motion to terminate.” The juvenile court then proceeded to hear testimony from the ADES caseworker on the substance of the Motion for Termination.
¶ 4 At approximately 9:10 a.m., Mother and Father arrived at the Severance Hearing. The juvenile court informed them that it had already found there was no good cause shown for their failure to appear. A few minutes later, Father requested a trial and objected to the juvenile court's finding that he had waived his right to contest the Motion for Termination. He stated that he was misinformed as to the time of trial and that he had just “[driven] 1100 miles.” The juvenile court denied Father's request but allowed Father's counsel to cross-examine the ADES witness. 4 Mother then requested the juvenile court reconsider (Motion to Reconsider) its finding that Mother had waived her right to contest the Motion for Termination by failing to appear. Mother argued that she was in court by 9:00 a.m. and that she had to arrange her own transportation to get to the hearing. The juvenile court denied Mother's Motion to Reconsider because “[a]rranging your own transportation is not good cause for not appearing on time.”
¶ 5 Mother's counsel arrived at 9:30 a.m., an hour past the scheduled time of the hearing. He explained that he “had a conflict with a downtown case.” The juvenile court replied, Nevertheless, the court allowed Mother's counsel to cross-examine ADES's witness.
¶ 6 The juvenile court granted ADES's Motion for Termination. Both Mother and Father filed timely notices of appeal and we have jurisdiction pursuant to A.R.S. §§ 8-235.A (2007), 12-120.21.A.1, and -2101.B (2003).
¶ 7 Father presents two issues on appeal: (1) whether the juvenile court abused its discretion in denying his request that a trial be set; and (2) whether the juvenile court should have stayed the proceedings to allow Father's counsel to prepare and participate meaningfully. Mother also presents two issues: (1) whether the trial court abused its discretion in denying her Motion to Reconsider; and (2) whether the trial court abused its discretion in commencing the hearing before Mother's counsel arrived.
¶ 8 Father argues that the juvenile court abused its discretion in denying his request that a trial be set. Specifically, Father contends he was not given an opportunity to present a reason for his failure to appear. The record indicates otherwise. The juvenile court entertained Father's explanation of his failure to appear on time when Father requested a trial and objected to the juvenile court's finding that he had waived his right to contest the motion for termination. Father supported his request/objection by stating that he was misinformed as to the time of the hearing and that he had just finished driving 1100 miles. After considering Father's argument, the juvenile court denied the request and impliedly overruled the objection.
¶ 9 We find no abuse of discretion in the juvenile court's decision. See Adrian E. v. Ariz. Dep't of Econ. Sec., 215 Ariz. 96, 101, ¶ 15, 158 P.3d 225, 230 (App.2007) (). In this case, the juvenile court confirmed that Father's counsel had mailed him the Form III. Thus, it was reasonable for the juvenile court to conclude Father knew the date and time of the severance hearing. Father had prior knowledge of the hearing and was fully admonished as to the consequences of a failure to appear. We conclude the record provides sufficient support for the juvenile court's finding that Father failed to appear without good cause and thus waived his right to contest the Motion for Termination. We find no abuse of discretion in the juvenile court's denial of Father's request that a trial be set.
¶ 10 Father next argues that the juvenile court should have stayed the proceedings to give Father's counsel time to prepare. Specifically, Father contends his counsel's ability to provide meaningful representation was hampered. Although it is unclear from Father's opening brief, he appears to be arguing ineffective assistance of counsel. Father, however, cites no legal authority for how or why the juvenile court erred. Accordingly, this argument is waived. See State v. Bolton, 182 Ariz. 290, 298, 896 P.2d 830, 838 (1995) (). Even if the argument is not waived, Father fails to explain how his counsel's performance “fell below the prevailing professional norms” or how he was prejudiced by his counsel's alleged lack of time to prepare. John M. v. Ariz. Dep't of Econ. Sec., 217 Ariz. 320, 322-23, ¶ 8, 173 P.3d 1021, 1023-24 (App.2007) ()
¶ 11 Mother argues that the juvenile court erred in denying the Motion to Reconsider. At the Severance Hearing, Mother argued that there was good cause for her failure to appear because she arrived by 9:00 a.m. and she had to arrange her own transportation. The juvenile court denied Mother's Motion to Reconsider because “[a]rranging your own transportation is not good cause for not appearing on time.”
¶ 12 We find no abuse of discretion in this decision. See Adrian E., 215 Ariz. at 101, ¶ 15, 158 P.3d at 230. The juvenile court is in the best position to make discretionary findings such as what constitutes good cause for failure to appear. See In re Pima County Dependency Action No. 93511, 154 Ariz. 543, 546, 744 P.2d 455, 458 (App.1987). First, Mother's argument that her arrival thirty minutes after the scheduled start of the hearing evidenced good cause for her failure to appear on time is misplaced. Effectively, Mother is attempting to justify her late arrival by arguing simply that she arrived, even if she was late. While 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.
¶ 13 Second, Mother's excuse that she was required to arrange her own transportation is insufficient to establish good cause for failure to appear. Despite the fact that all parties to a dependency action are solely responsible for arranging their own transportation, Mother was provided a thirty-day bus pass for the specific purpose of ensuring her transportation to the Severance Hearing. Accordingly, we cannot say the juvenile court abused its discretion in denying Mother's Motion to Reconsider.
¶ 14 Mother also argues that the juvenile court erred in commencing the Severance Hearing without her counsel being present. Mother's right to counsel in a severance proceeding is afforded by statute ( see A.R.S. § 8-221(B)) and the due process clause. Daniel Y. v. Ariz. Dep't of Econ. Sec., 206 Ariz. 257, 260, ¶ 14, 77 P.3d 55, 58 (App.2003). We have held that because “[a] parent's right to the ‘companionship, care custody and management of his or her children’ is a fundamental constitutionally protectedright,” that right requires due process protection. Michael M. v. Ariz. Dep't Econ. Sec., 202 Ariz. 198, 200, ¶ 8, 42 P.3d 1163, 1165 (App.2002). Therefore, the right to counsel in a severance proceeding is...
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