Royce C. v. Dep't of Child Safety

• Citation: 52 Arizona Cases Digest 29,498 P.3d 1094
• Decision Date: 02 September 2021
• Docket Number: No. 2 CA-JV 2021-0005,2 CA-JV 2021-0005
• Parties: ROYCE C., Appellant, v. DEPARTMENT OF CHILD SAFETY and L.C., Appellees.
• Court: Court of Appeals of Arizona

52 Arizona Cases Digest 29

498 P.3d 1094

ROYCE C., Appellant,

v.DEPARTMENT OF CHILD SAFETY and L.C., Appellees.

No. 2 CA-JV 2021-0005

Court of Appeals of Arizona, Division 2.

Filed September 2, 2021

Joel Feinman, Pima County Public Defender, By David J. Euchner, Assistant Public Defender, Tucson, Counsel for Appellant

Mark Brnovich, Arizona Attorney General, By Autumn Spritzer and Dawn R. Williams, Assistant Attorneys General, Tucson, Counsel for Appellee Department of Child Safety

Judge Eckerstrom authored the opinion of the Court, in which Presiding Judge Espinosa and Vice Chief Judge Staring concurred.

ECKERSTROM, Judge:

¶1 Appellant Royce C. appeals from the juvenile court's order denying his motion under Rule 46, Ariz. R. P. Juv. Ct., and Rule 60, Ariz. R. Civ. P., seeking to set aside the court's order granting the Department of Child Safety's motion for termination of his parental rights to his daughter, L.C., born in August 2019. He argues the court abused its discretion in terminating his rights "based on missing a single hearing." He contends he "offered a meritorious defense" in his motion to set aside, and asserts he received ineffective assistance of counsel regarding the filing of that motion. He also contends A.R.S. § 8-537(B) and Rule 64(C), Ariz. R. P. Juv. Ct., "are facially unconstitutional." For the reasons that follow, we remand this matter to the juvenile court.

¶2 The Department of Child Safety (DCS) took L.C. into protective custody when she tested positive for heroin at birth. Over the following year, Royce partially complied with his DCS case plan. He "acknowledge[d] that he needs individual therapy," but did not demonstrate he had benefitted from therapy, as exhibited by his "engaging in the intentional destruction of others’ property on July 12, 2020." Although he "expresse[d] his desire to reunify with" L.C., he "also reported that he [wa]s too busy for agency supervised visits." Additionally, he was neither forthright nor cooperative with DCS in reporting changes to his employment or contact with law enforcement. He tested positive for opiates in May 2020.

¶3 In September 2020, the juvenile court found that the child's mother was not complying with the case plan and that Royce was only in partial compliance. Accordingly, it modified the case plan from reunification to severance of the parents’ rights and adoption. As the court had directed, DCS filed a motion for termination of the parents’ rights in October 2020. It alleged Royce had neglected L.C. by being unable or unwilling to provide her with adequate care and by failing to protect her from her mother's substance abuse. See A.R.S. § 8-533(B)(2).

¶4 The juvenile court set an initial termination hearing, see Ariz. R. P. Juv. Ct. 65, for October 30. Royce was informed of that date during the dependency review hearing he attended on September 16. Nonetheless, he failed to appear at the initial termination hearing. The family's case manager testified that Royce had not protected L.C. from the mother's substance abuse, that he had not participated in individual therapy until the case plan changed to severance, and that even thereafter he had not met any of his treatment goals in therapy. She also testified that Royce was not currently able to provide L.C. with adequate care, food, or shelter. She stated that although Royce had told her he was employed, his employment could not be verified. Likewise, she testified that although Royce had attended some of his required anger management classes, "his consistent attendance ha[d] not been verified." The court determined that Royce's failure to appear constituted an admission to the allegations in the motion to terminate and found that severance was in L.C.’s best interest. The court filed its ruling on November 6.

¶5 That same day, Royce's counsel filed a "Motion for Reconsideration," citing Rules 65(C) and 46(E), Ariz. R. P. Juv. Ct., and Trisha A. v. Dep't of Child Safety , 247 Ariz. 84, 446 P.3d 380 (2019). She asserted that Royce had informed her "he had started a new job, has been doing all his services, and that he did not properly calendar the initial severance hearing." Counsel therefore asked the juvenile court to "find good cause and a meritorious defense, and set aside the termination." The court ordered Royce to file a new motion by November 20, noting that the original motion did not "conform to the requirements of Rule 60(b)-(d), Ariz. R. Civ. P.," as required by Rule 46(E). Counsel filed a new motion, but merely provided the same account of Royce's absence. The court denied the motion, concluding that Royce had failed to show good cause for failing to appear or to demonstrate a meritorious defense. This appeal followed.

¶6 Royce first argues the juvenile court erred because it "required an affidavit to support the allegation of a meritorious defense" and "resolved the facts in favor of DCS without holding a trial." In its ruling, the court stated, "There is no affidavit from the father or verification from him accompanying the Amended Motion." But the court elaborated that Royce had failed to show he had started a job, failed to show he "had to work on that day," and failed to explain "how he realized he had missed the hearing." It further stated that Royce had not "provide[d] case law or evidence that shows that mis-calendaring a hearing or starting a new job rise to the level of mistake or excusable neglect to justify relief under Rule 60(b)." Thus, the court did not deny the motion solely on the grounds that it lacked an affidavit.¹ Rather, it concluded that Royce's reasons for failing to appear were simply insufficient to meet the Rule 60 standard. Royce has not explained how that conclusion was incorrect.

¶7 Likewise, we reject Royce's claim that the juvenile court erred in concluding he had not established a meritorious defense. As our supreme court has explained, "A parent must show a meritorious defense under Rule 46(E) because the motion to set aside seeks to overcome the presumptively valid judgment's finality." Trisha A. , 247 Ariz. 84, ¶ 22, 446 P.3d 380. This is so because "a child who has been abused or neglected requires permanency and stability, and a severance judgment should not be disturbed without a legitimate basis." Id. A parent need "demonstrate no more than a substantial, facially meritorious defense to the proven severance ground," id. ¶ 29, but "[a] meritorious defense must be established by facts and cannot be established through conclusions, assumptions or affidavits based on other than personal knowledge," Christy A. v. Ariz. Dep't of Econ. Sec. , 217 Ariz. 299, ¶ 16, 173 P.3d 463 (App. 2007) (quoting Richas v. Superior Court , 133 Ariz. 512, 517, 652 P.2d 1035, 1040 (1982) ). On the record before us, we cannot say the court abused its discretion in concluding that the bare assertions in Royce's motion failed to meet that standard. See Trisha A ., 247 Ariz. 84, ¶ 32, 446 P.3d 380 (juvenile court did not abuse its discretion in ruling on Rule 46 motion).

¶8 Royce further contends he received ineffective assistance of trial counsel based on counsel's failure to file a "proper motion to set aside the judgment." As noted above, after counsel filed an initial motion for reconsideration, the juvenile court ordered her to file a new motion that "conforms to the requirements of Rule 60(b)-(d), Ariz. R. Civ. P." Counsel failed to do so, filing a new motion that only added citations to Rule 46(E), Ariz. R. P. Juv. Ct., and Rule 60, Ariz. R. Civ. P., and a sentence stating, "Given the fundamental rights at stake, and the serious nature of the proceedings the father is requesting that the Court find that his absence was the product of a mistake or excusable neglect and not a waiver of his right to a trial."

¶9 On appeal, Royce makes several claims with more detail regarding the allegations in the motion to terminate his parental rights, including that he had participated in anger management programming and individual counseling, that he was employed, and that L.C.’s placement had "ceased cooperating with Royce on visitation." He also asserts that "[h]is trial attorney did not request that he execute an affidavit ... explaining why he missed court or what defense ... he could make at trial."

¶10 Section 8-221(B), A.R.S., provides, in relevant part, that "[i]f a ... parent ... is found to be indigent and entitled to counsel, the juvenile court shall appoint an attorney to represent the person or persons" unless counsel is properly waived. Our courts have determined that, in the context of severance proceedings, this statute "implements a due process right." Daniel Y. v. Ariz. Dep't of Econ. Sec. , 206 Ariz. 257, ¶ 15, 77 P.3d 55 (App. 2003) ; see also Brenda D. v. Dep't of Child Safety , 243 Ariz. 437, ¶ 30, 410 P.3d 419 (2018) ; Christy A. , 217 Ariz. 299, ¶ 28, 173 P.3d 463.

¶11 Nearly fourteen years ago this court observed that, although the due process standard for appointment of counsel had been determined, "[f]ew Arizona cases have considered[,] ... and none has squarely addressed" whether "ineffective assistance of counsel justif[ies] reversal of a juvenile court's order terminating parental rights and, if so, under what circumstances." John M. v. Ariz. Dep't of Econ. Sec. , 217 Ariz. 320, ¶¶ 11-12, 173 P.3d 1021 (App. 2007). Since that time, we have acknowledged the possibility that, given the parent's right to representation, ineffective assistance of counsel might give rise to reversal of an order terminating the parent's rights. See, e.g. , Bob H. v. Ariz. Dep't of Econ. Sec. , 225 Ariz. 279, ¶ 10, 237 P.3d 632 (App. 2010). But we have observed that if such a claim were to exist, the parent challenging a termination order would only be entitled to relief if the parent could satisfy, at minimum, the test set forth in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), for claims of ineffective assistance of counsel in criminal...