Martha C. v. Dcs ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
MARTHA C., K.C., K.C., Appellants,
v.
DEPARTMENT OF CHILD SAFETY, R.C., E.C., S.C., S.C., Appellees.
No. 1 CA-JV 16-0426
FILED 4-27-2017
Appeal from the Superior Court in Yavapai County
No. P1300JD201500067
The Honorable Anna C. Young, Judge
AFFIRMED
COUNSEL
Law Office of Florence M. Bruemmer P.C., Anthem
By Florence M. Bruemmer
Counsel for Appellant Martha C.
Robert D. Rosanelli Attorney at Law, Phoenix
By Robert D. Rosanelli
Counsel for Appellants K.C. and K.C.
MARTHA C., et al. v. DCS, et al.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Kenton D. Jones delivered the decision of the Court, in
which Judge Patricia K. Norris and Judge Paul J. McMurdie joined.
J O N E S, Judge:
¶1 Martha C. (Mother) appeals the juvenile court’s order
denying her motion to set aside the court’s finding that she lacked good
cause for failing to appear at the initial termination hearing. Additionally,
Mother, along with K.C. and K.C. (the Older Children), appeal the court’s
order terminating Mother’s parental rights to the Older Children, arguing
termination was not in their best interests.1 For the following reasons, we
affirm.
FACTS2 AND PROCEDURAL HISTORY
¶2 In August 2015, DCS assumed physical custody of the Older
Children and the Younger Children (collectively, the Children) after their
father (Father) sought DCS’s assistance because he was unable to feed them
and provide safe and stable housing. DCS then filed a dependency petition
alleging the Children were dependent as to Mother on the grounds of abuse
1 Neither the Department of Child Services (DCS) nor R.C., E.C., S.C.,
or S.C. (the Younger Children) filed an answering brief. Although we may
consider such failure a confession of error, we are not required to do so. See
Hodai v. City of Tucson, 239 Ariz. 34, 45, ¶ 36 (App. 2016) (citing In re 1996
Nissan Sentra, 201 Ariz. 114, 117, ¶ 7 (App. 2001), and Savord v. Morton, 235
Ariz. 256, 259, ¶ 9 (App. 2014)). In our discretion, we choose to address the
merits of the appeal.
2 We view the facts in the light most favorable to upholding the
juvenile court’s orders. See Marianne N. v. Dep’t of Child Safety, 240 Ariz. 470,
471 n.1, ¶ 1 (App. 2016) (citing Ariz. Dep’t of Econ. Sec. v. Matthew L., 223
Ariz. 547, 549, ¶ 7 (App. 2010)).
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MARTHA C., et al. v. DCS, et al.
Decision of the Court
and neglect.3 The juvenile court adjudicated the Children dependent as to
Mother and approved a case plan of family reunification. The court also
ordered DCS to provide Mother with services consisting of psychological
treatment, urinalysis testing, supervised visitation, parenting classes, and a
parent aide.
¶3 In November 2015, Mother missed a psychological evaluation
because she had relocated from Yavapai County to Maricopa County.
During supervised visitation, Mother’s affect was appropriate, and she did
not present any safety concerns. However, Mother tested positive for
methamphetamine and did not participate in substance abuse services or
parenting classes. DCS also expressed concern regarding Mother’s
“untreated mental health” issues.
¶4 DCS lost contact with Mother in December 2015. Six months
later, the Children’s guardian ad litem (GAL) moved to terminate Mother’s
parental rights, alleging Mother had abandoned and neglected the Children
and was unable to discharge parental responsibilities because of mental
illness and chronic substance abuse. See Ariz. Rev. Stat. (A.R.S.) § 8-
533(B)(1)-(3).4 An initial severance hearing was scheduled for July 2016.
¶5 At the initial severance hearing, Mother’s counsel informed
the juvenile court she had lost contact with Mother. The court found
Mother had been served with the motion for termination, and, therefore,
her failure to appear would be deemed an admission to the motion’s
allegations. One month later, Mother moved to set aside the finding she
lacked good cause for her failure to appear because, although her counsel
had received the motion for termination, Mother became homeless in
December 2015, did not have a telephone by which counsel could contact
her, and did not have a means of transportation to travel from Maricopa
County to Yavapai County for the hearing. The court denied Mother’s
motion.
3 DCS also alleged the Children were dependent as to Father. The
Children were found dependent as to Father, and his parental rights were
terminated in September 2016. He did not contest the severance motion,
did not appeal the termination of his parental rights, and is not a party to
this appeal.
4 Absent material changes from the relevant date, we cite a statute’s
current version.
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Decision of the Court
¶6 The juvenile court held a pretrial conference in September
2016. Mother again failed to appear. The DCS case manager testified
Mother had not completed any recommended services, was unable to
discharge her parental responsibilities due to untreated mental illness, and
had abandoned the Children. Although the case manager advised no
services had been arranged for Mother in Maricopa County, where Mother
had purportedly resided for several months, she noted she was unable to
do so because Mother never provided DCS an address.
¶7 The case manager further testified the Children were
adoptable, although adoptive placements had not been located for all the
Children. The case manager also reported that the Older Children, then
ages sixteen and thirteen, did not want to be adopted, but she nonetheless
believed termination of Mother’s parental rights was still in the Children’s
best interests.
¶8 At the conclusion of the hearing, the juvenile court ordered
the Older Children be provided separate counsel to advocate for their best
interests as to placement. The court then found DCS had made diligent
efforts to provide appropriate rehabilitative services, the GAL had proven
all three grounds for severance by clear and convincing evidence, and
severance was in the Children’s best interests by a preponderance of the
evidence. Accordingly, the court entered an order terminating Mother’s
parental rights. Mother and the Older Children timely appealed. We have
jurisdiction pursuant to A.R.S. §§ 8-235(A), 12-120.21(A)(1), -2101(A)(1),
and Arizona Rule of Procedure for the Juvenile Court 103(A).
DISCUSSION
I. Mother Did Not Have Good Cause for Her Failure to Appear at the
Initial Severance Hearing.
¶9 Mother first seeks review of the denial of her motion to set
aside the juvenile court’s finding that she waived her right to contest the
allegations within the motion for termination because she failed to appear
at the initial termination hearing without good cause. We review a finding
that a parent lacked good cause for her failure to appear, and the court’s
decision on a motion to set aside judgment, for an abuse of discretion. See
Marianne N., 240 Ariz. at 474, ¶ 15 (finding that a parent failed to appear
without good cause) (citing Adrian E. v. Ariz. Dep’t of Econ. Sec., 215 Ariz.
96, 101, ¶ 15 (App. 2007)); Christy A. v. Ariz. Dep’t of Econ. Sec., 217 Ariz. 299,
303, ¶ 12 (App. 2007) (motion to set aside). We will reverse the court’s order
only if “the juvenile court’s exercise of . . . discretion was manifestly
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Decision of the Court
unreasonable, or exercised on untenable grounds, or for untenable
reasons.” Marianne N., 240 Ariz. at 474, ¶ 15 (quoting Adrian E., 178 Ariz.
at 101, ¶ 15).
¶10 In order to establish good cause for failing to appear at the
initial termination hearing, Mother was required to prove “(1) mistake,
inadvertence, surprise or excusable neglect exist[ed] and (2) a meritorious
defense to the claims exist[ed].” Christy A., 217 Ariz. at 304, ¶ 16 (citing
Richas v. Superior Court, 133 Ariz. 512, 514 (1982), and then Ariz. R. Civ. P.
60(c)). “Excusable neglect exists if the neglect or inadvertence ‘is such as
might be the act of a reasonably prudent person in the same
circumstances.’” Id. (quoting Ulibarri v. Gerstenberger, 178 Ariz. 151, 163
(App. 1993)). Furthermore, “[a] meritorious defense must be established by
facts and cannot be established through conclusions, assumptions or
affidavits based on other than personal knowledge.” Id. at 304-05, ¶ 16
(quoting Richas, 133 Ariz. at 517).
¶11 In her motion to set aside, Mother acknowledged her counsel
was served with the motion for termination. See Ariz. R.P. Juv. Ct. 64(D)(2)
(directing service of a motion for termination in accordance with Arizona
Rule of Civil Procedure 5(c)); Ariz. R. Civ. P. 5(c)(1) (requiring service after
appearance be made upon a party’s attorney); Mara M. v. Ariz. Dep’t of Econ.
Sec., 201 Ariz. 503, 508, ¶ 28 (App. 2002) (concluding that although “service
of process on counsel . . . may not in fact apprise a parent . . . of the pendency
of termination proceedings, . . . it is a means reasonably calculated under
the circumstances to notify the parent and to protect her rights”). However,
Mother argued she should have been excused from attending the initial
termination hearing because her counsel had no way of contacting her
because Mother was “homeless and had no address,” did not have the
“financial means to obtain a telephone,” and did not have transportation to
the hearing.
¶12 While we are sympathetic to the challenges Mother faced as a
result of her living arrangements and financial limitations, we cannot say
the juvenile court abused its discretion in concluding Mother’s failure to
maintain contact with her attorney, DCS, the GAL, or the court, was the act
of a reasonably prudent person facing termination of her parental rights or
otherwise sufficient to establish excusable neglect or good cause. See Hackin
v. First Nat’l Bank of Ariz., Phx., 5 Ariz. App. 379, 385 (1967) (“We recognize
that where a client wil[l]fully or negligently fails to keep in touch with an
attorney so that the attorney cannot properly inform him as to the pending
litigation that he cannot complain because he does not realize the date of
the trial.”) (citing Wright v. Burhart, 35 Ariz. 246, 252-53 (1929)). Mother
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MARTHA C., et al. v. DCS, et al.
Decision of the Court
received notice of the proceeding, and the court did not abuse its discretion
in finding Mother did not prove excusable neglect.
¶13 Furthermore, Mother did not establish any meritorious
defense to severance on the ground of neglect.5 As to this ground, Mother
argued only that DCS failed to make reasonable efforts to provide
appropriate reunification services because it did not offer her services in
Maricopa County. DCS is not required to “provide every conceivable
service,” but must only provide the parent “with the time and opportunity
to participate in programs designed to help him or her become an effective
parent.” Tanya K. v. Dep’t of Child Safety, 240 Ariz. 154, 157, ¶ 11 (App. 2016)
(quoting Maricopa Cty. Juv. Action No. JS-501904, 180 Ariz. 348, 353 (App.
1994)). “Similarly, DCS is not required to leave the window of opportunity
for remediation open indefinitely.” Id. (citing Maricopa Cty. Juv. Action No.
JS-501568, 177 Ariz. 571, 577 (App. 1994)). The record reflects Mother was
granted such an opportunity; however, because Mother never provided
DCS with an address or any other means to contact her, she was not able to
participate. Again, Mother cannot infuse error into the proceedings
through her failure to maintain sufficient contact with DCS or her attorney.
Accordingly, we find no abuse of discretion in either the juvenile court’s
finding that Mother lacked good cause for her failure to appear, or its denial
of Mother’s motion to set aside.
II. Sufficient Evidence Supports the Juvenile Court’s Finding that
Severance was in the Older Children’s Best Interests.
¶14 Mother and the Older Children argue the juvenile court erred
in finding that severance was in the Older Children’s best interests.6 See
Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 47, ¶ 8 (App. 2004)
(holding a statutory ground for severance cannot, alone, justify termination
of parental rights; termination must also be “in the best interest of the
child”) (quoting Michael J., 196 Ariz. at 249, ¶ 12); see also Ariz. R.P. Juv. Ct.
5 The moving party need only prove one statutory ground for
severance. See Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 249, 251,
¶¶ 12, 27 (2000). Because Mother has failed to establish a meritorious
defense on the ground of neglect, we need not address her asserted defenses
to the other grounds.
6 The Older Children do not challenge any of the statutory grounds
for severance, and we rejected Mother’s only asserted defense to severance
on the grounds of neglect. See supra ¶ 13. Accordingly, the finding that
severance was warranted on the ground of neglect is affirmed.
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Decision of the Court
66(C) (requiring the moving party to prove by a preponderance of the
evidence that termination of parental rights is in the child’s best interests).
Because the court is in the best position to weigh the evidence and
credibility of the parties, we review the termination order for an abuse of
discretion and will affirm if reasonable evidence exists to sustain the court’s
ruling. See Mary Lou C., 207 Ariz. at 47, ¶ 8.
¶15 To prove severance is in the Older Children’s best interests,
the GAL was required to “show either that severance affirmatively benefits
the children (such as showing they are adoptable or more stable in an
existing placement), or eliminates a detriment to the children if the parent-
child relationship is not severed.” Dominique M. v. Dep’t of Child Safety, 240
Ariz. 96, 98, ¶ 8 (App. 2016) (citing Maricopa Cty. Juv. Action No. JS-500274,
167 Ariz. 1, 6-7 (1990), and Ariz. Dep’t of Econ. Sec. v. Oscar O., 209 Ariz. 332,
334, ¶ 6 (App. 2004)). The factors considered in making the best interests
determination are “whether: [(]1) an adoptive placement is immediately
available; [(]2) the existing placement is meeting the needs of the child; and
[(]3) the children are adoptable.” Raymond F. v. Ariz. Dep’t of Econ. Sec., 224
Ariz. 373, 379, ¶ 30 (App. 2010) (citing Audra T. v. Ariz. Dep’t of Econ. Sec.,
194 Ariz. 376, 377, ¶ 5 (App. 1998), and JS-501904, 180 Ariz. at 352).
Furthermore, the juvenile court “may take into account that ‘in most cases,
the presence of a statutory ground [for severance] will have a negative effect
on the children.’” Bennigno R. v. Ariz. Dep’t of Econ. Sec., 233 Ariz. 345, 350,
¶ 23 (App. 2013) (quoting Maricopa Cty. Juv. Action No. JS-6831, 155 Ariz.
556, 559 (App. 1988)).
¶16 Mother and the Older Children argue that the juvenile court
was precluded from making a finding that the Older Children were
adoptable because the Older Children have withheld their consent to be
adopted. Although A.R.S. § 8-106(A)(3) requires the court obtain the
consent of “[a] child who is twelve years of age or older” before granting a
petition to adopt that child, such consent is only required once a specific
adoption is proposed to the court for its approval. A minor child’s failure
to give consent to a specific adoptive placement at the time of the severance
hearing does not render him terminally unadoptable. Moreover,
adoptability is just one factor in the best interests analysis. See supra ¶ 15.
¶17 Here, Mother’s DCS case manager testified she believed
severing Mother’s parental rights to the Children was in their best interests.
Evidence was presented the Older Children’s current placement was
meeting their needs and willing to care for them until they reached the age
of eighteen, with or without a formal adoption. The record reflects Mother
abandoned and neglected the Older Children and was otherwise unable or
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Decision of the Court
unwilling to parent them as a result of mental illness or chronic abuse of
dangerous drugs. Thus, the evidence supports the juvenile court’s finding
that severance would benefit the Older Children by providing them the
opportunity for “a permanent, stable home” — precisely the type of home
Mother had thus far been unable or unwilling to provide. Therefore, the
juvenile court did not err in concluding severance was in the Older
Children’s best interests.
CONCLUSION
¶18 The juvenile court’s order terminating Mother’s parental
rights to the Children is affirmed.
AMY M. WOOD • Clerk of the Court
FILED: AA
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