David S. v. Dcs, K.S. ( 2017 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
DAVID S., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, K.S., Appellees.
No. 1 CA-JV 17-0031
FILED 7-27-2017
Appeal from the Superior Court in Maricopa County
No. JD 528384
The Honorable Janice K. Crawford, Judge
AFFIRMED
COUNSEL
The Stavris Law Firm PLLC, Scottsdale
By Christopher Stavris
Counsel for Appellant
Arizona Attorney General’s Office, Mesa
By Ashlee N. Hoffmann
Counsel for Appellee, Department of Child Safety
DAVID S. v. DCS, K.S.
Decision of the Court
MEMORANDUM DECISION
Judge Jennifer B. Campbell delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Patricia K. Norris1 joined.
C A M P B E L L, Judge:
The sole issue on appeal is whether Father’s untimely
appearance at a pretrial conference regarding a motion to terminate
parental rights constituted a “failure to appear” without good cause under
Arizona Rule of Procedure for the Juvenile Court 64(C). Because the
juvenile court did not abuse its discretion in finding that Father failed to
appear without good cause and entering an order terminating his parental
rights, we affirm.
FACTS AND PROCEDURAL HISTORY
David S. (“Father”) is a biological parent to K.S., born in July
2008. The Department of Child Safety (“DCS”) took temporary physical
custody of K.S. in January 2015 and filed a dependency action alleging K.S.
dependent due to Father’s neglect. The juvenile court subsequently
adjudicated K.S. dependent.2 In October 2016, DCS moved to terminate the
parent-child relationship, alleging fifteen or more months in out-of-home
placement.
At the initial hearing on DCS’s motion for termination, the
juvenile court set a pretrial conference for January 11, 2017. Father was
present and admonished, both verbally and in writing, of the possible
consequences of his failure to appear at that hearing. Father was not present
for the majority of the pretrial conference, which the court began
approximately 25 minutes after the scheduled start time. At the
1 The Honorable Patricia K. Norris, Retired Judge of the Arizona Court
of Appeals, Division One, has been authorized to sit in this matter pursuant
to Article VI, Section 3 of the Arizona Constitution.
2 DCS filed its dependency action against both Mother and Father
alleging neglect of K.S. The juvenile court adjudicated K.S. dependent as to
both parents and terminated both parents’ legal rights; however, Mother is
not a party to this appeal.
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DAVID S. v. DCS, K.S.
Decision of the Court
commencement of the hearing, the juvenile court asked if anyone had
information regarding Father’s whereabouts. Father’s counsel stated he had
“no idea” about Father’s whereabouts. The DCS caseworker informed the
court she sent a taxi to pick up Father, but after arriving at the designated
location, the driver was unable to locate Father. The court found “no good
cause for Father’s failure to appear.” DCS advised the court it was prepared
to proceed. It then presented evidence supporting the allegations in the
motion to terminate Father’s parental rights. See generally Ariz. R.P. Juv. Ct.
64(C) (court may deem parent’s failure to appear without good cause at a
pretrial conference on a pending termination motion as an admission of the
allegations in the motion). Father’s counsel presented no evidence on
Father’s behalf, but was given the opportunity to do so by the juvenile
court.
After the juvenile court received the evidence, prior to
entering its findings, the court confirmed Father had been advised of the
consequences of failing to appear. The court then found there was “no good
cause” for his failure to appear. While the court was making its statutory
findings on the basis for termination, Father entered the courtroom. The
juvenile court asked Father why he arrived late. Father responded that the
taxi had not arrived to pick him up. The juvenile court informed Father that
if he filed a motion, it would reconsider whether there was good cause for
Father’s failure to appear. The court then found the ground for termination,
fifteen months out-of-home placement, proven by clear and convincing
evidence and that termination was in the best interests of the child. The
juvenile court entered an order terminating Father’s parental rights.
Father moved for reconsideration. After considering the
motion and DCS’s response, the juvenile court denied Father’s motion,
again finding no “good cause” for his failure to appear. Without addressing
any of the factual arguments offered by the parties in their motion papers,3
the court focused on Father’s failure to communicate with his attorney or
the court about his transportation issues the morning of the pretrial
conference. Specifically, it found that Father failed to “provide any
explanation as to why he did not try to reach his attorney or the [c]ourt if,
3 The parties presented conflicting arguments about whether the taxi
had arrived at the designated location at the requested time. Both parties
attached unsworn exhibits to their motion papers, which are not material
to the juvenile court’s finding. See Ariz. R.P. Juv. Ct. 45(A) (admissibility of
evidence); Ariz. R. Evid. 901(a) (proponent of evidence required to produce
evidence sufficient to support finding that item is what proponent claims it
is).
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DAVID S. v. DCS, K.S.
Decision of the Court
as he contends, he was having transportation problems.” We have
jurisdiction over Father’s appeal of termination under A.R.S. §§ 8-235(A),
12-120.21(A)(1), and 12-2101(A)(1).
DISCUSSION
Father does not challenge the juvenile court’s finding of a
statutory ground for termination or its best interests finding. Instead, Father
argues that the juvenile court terminated his parental rights “because [he]
appeared late for the pre-trial conference hearing,” or essentially
terminated his rights in “default.” We disagree. The juvenile court
terminated Father’s rights because it found a ground for termination under
A.R.S. § 8-533(B)(8)(c) and that termination was in K.S.’s best interest under
A.R.S. § 8-533(B).
Father next argues that in his motion for reconsideration he
demonstrated good cause for failing to appear. Reviewing the juvenile
court’s order for an abuse of discretion, Frank R. v. Mother Goose Adoptions,
239 Ariz. 184, 190, ¶ 21 (App. 2016), we reject this argument.
I. Waiver of Rights
A court may terminate parental rights only after: (1) finding
by clear and convincing evidence that at least one of the statutory grounds
for termination is met, and (2) finding by a preponderance of the evidence
that termination is in the best interests of the child. Marina P. v. Ariz. Dep’t
of Econ. Sec., 214 Ariz. 326, 329, ¶ 18 (App. 2007).
A court may consider a parent’s failure to appear at a pretrial
conference on a pending termination motion as an admission of the
allegations of the motion and thus a waiver of the opportunity to contest
the motion’s allegations if the parent has received proper notice of the
hearing. Ariz. R.P. Juv. Ct. 64(C).4 A court may terminate parental rights,
based on the record and evidence presented, if the court finds: the parent
had notice of the proceeding; was properly served and admonished as to
the possible consequences of failing to appear; was advised the hearing
could proceed in his or her absence; was advised that a failure to appear
may constitute a waiver of legal rights and admission of the allegations
contained in DCS’s petition. Ariz. R.P. Juv. Ct. 64(C); see also A.R.S.
§ 8-537(C).
4 Neither side argues the constitutionality of Rule 64(C). See Marianne
N. v. DCS, 240 Ariz. 470 (App. 2016) (review granted in part April 18, 2017).
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DAVID S. v. DCS, K.S.
Decision of the Court
The record is clear: Father did not appear at the pretrial
conference until after the court found there was no good cause for his
failure to appear, after it received evidence from DCS supporting the
allegations in the motion, and as it was setting forth its findings of fact and
conclusions of law. This court has previously held that a juvenile court may
treat a parent’s absence at a hearing as a waiver of his or her legal rights
and deem the parent to have admitted the allegations in the petition if the
parent “failed to appear by the time both parties have fully presented their
case.” Brenda D. v. Dep’t of Child Safety, 761 Ariz. Adv. Rep. 41, 47, ¶ 18 (App.
2017). Accordingly, the juvenile court did not abuse its discretion in
proceeding without Father and terminating his parental rights based on the
record and evidence presented.
II. Good Cause
To demonstrate good cause for a failure to appear, a parent
must show the existence of “(1) mistake, inadvertence, surprise or excusable
neglect” and “(2) a meritorious defense to the claim.” Christy A. v. Ariz.
Dep’t of Econ. Sec., 217 Ariz. 299, 304, ¶ 16 (App. 2007) (citation omitted).
The juvenile court is in the best position to make findings as to what
constitutes good cause for failure to appear. Bob H. v. Ariz. Dep’t of Econ.
Sec., 225 Ariz. 279, 282, ¶ 12 (App. 2010); see also Brenda D., 761 Ariz. Adv.
Rep. at 47, ¶ 18 (juvenile court retains “full discretion” in determining what
constitutes good cause for failure to appear) (citation and quotation
omitted).
Here, as they did in the juvenile court, the parties dispute
whether transportation issues outside Father’s control prevented him from
appearing at the hearing. As discussed above, the juvenile court did not
address the conflicting factual arguments of the parties, and found Father
had failed to demonstrate good cause because he had not provided any
explanation as to why he had not contacted the court or his own counsel.
Importantly, Father has not contested this finding on appeal. Accordingly,
Father has failed to show the juvenile court abused its discretion in making
this finding, and rejecting Father’s good cause argument.
Further, Father failed to raise a meritorious defense to the
termination of his parental rights in his motion to reconsider. Thus, Father
failed to satisfy the second prong of the good cause analysis. See supra ¶ 11.
Accordingly, the juvenile court did not abuse its discretion in finding Father
had not shown good cause for his failure to appear at the pretrial
conference.
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DAVID S. v. DCS, K.S.
Decision of the Court
CONCLUSION
For the foregoing reasons, we affirm the juvenile court’s order
terminating Father’s parental rights to K.S.
AMY M. WOOD • Clerk of the Court
FILED: AA
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