Manuel M. v. Ades, Leila M., Alayena M. ( 2008 )

FILED BY CLERK
IN THE COURT OF APPEALS MAR 25 2008
STATE OF ARIZONA COURT OF APPEALS
DIVISION TWO DIVISION TWO
MANUEL M., )
)
Appellant, ) 2 CA-JV 2007-0071
) DEPARTMENT B
v. )
) OPINION
ARIZONA DEPARTMENT OF )
ECONOMIC SECURITY, LEILA M., )
and ALAYANA M., )
)
Appellees. )
)
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. 17003500
Honorable Charles S. Sabalos, Judge
AFFIRMED
Joan Spurney Caplan Tucson
Attorney for Appellant
Terry Goddard, Arizona Attorney General
By Dawn R. Williams Tucson
Attorneys for Appellee Arizona
Department of Economic Security
E C K E R S T R O M, Presiding Judge.
¶1 Appellant Manuel M. appeals from the juvenile court’s order of August 13,
2007, terminating his parental rights to his five-year-old daughter, Leila, and his four-year-
old daughter, Alayana. Manuel challenges the constitutionality of Rule 66(D)(2), Ariz. R.
P. Juv. Ct., which provides the consequences for a parent’s failure to appear for scheduled
termination proceedings. He also contends the court erred by denying him an opportunity
to examine a case manager for Child Protective Services (CPS) and by considering
inadmissible evidence to conclude the Arizona Department of Economic Security (ADES)
had proven grounds for termination. After considering the record, applicable rules, and
arguments of the parties, we conclude that the court erred by denying Manuel the
opportunity to cross-examine the case manager concerning the sufficiency of the evidence
to support the grounds alleged for termination and abused its discretion in admitting
evidence without proper foundation. But we find these errors were harmless in the context
of this case. We therefore affirm the court’s termination order.1
¶2 Viewed in the light most favorable to affirming the juvenile court’s findings,
see In re Maricopa County Juv. Action No. JS-8490, 179 Ariz. 102, 106, 876 P.2d 1137,
1141 (1994), the evidence establishes the following. After investigating allegations that the
children’s mother, Melissa A., had engaged in domestic violence and substance abuse and
1
Manuel raises other issues that do not meet the criteria for publication. See Ariz. R.
Sup. Ct. 111(b); Ariz. R. Civ. App. P. 28(b). We address them in a separate,
contemporaneously filed memorandum decision. See Ariz. R. Sup. Ct. 111(h); Ariz. R. Civ.
App. P. 28(g).
2
had left Leila and Alayana with their paternal grandmother “who drank daily to the point
of passing out,” did not care for the children, and did not feed them or have food in the
home, CPS took the girls into temporary custody in June 2004. ADES filed a dependency
petition on July 6, 2004.2
¶3 Manuel spent most of the next year incarcerated on drug-related charges and
convictions in Arizona and Illinois. According to reports filed by CPS case manager Joel
Williamson, while Manuel was in prison, CPS had encouraged him “to avail himself of any
programs offered to inmates that would address his substance abuse, parenting, and
individual counseling” needs. Although Manuel had submitted in September 2004 to a
psychological evaluation required by CPS, he had advised Williamson that he “had not had
the time to participate in . . . inmate services.”
¶4 At a dependency review hearing in February 2005, the juvenile court found
that neither Manuel nor Melissa was in compliance with the case plan and approved
concurrent case plan goals of family reunification and severance.3 At the court’s direction,
ADES filed a motion to terminate both parents’ rights but then agreed in May 2005 to
2
CPS initially investigated these allegations in September 2003. At that time, Melissa
had agreed to the appointment of a family friend, Jessica F., as guardian for the children.
In late June 2004, however, Jessica told CPS she was unable and unwilling to continue
caring for Leila and Alayana and demanded their immediate removal from her home.
3
Although the record does not indicate the children were ever formally adjudicated
dependent as to Manuel, he admitted their dependency and did not dispute the court’s later
finding that “the status of dependency continue[d] to exist.”
3
continue the initial termination hearing to afford Melissa additional time to comply with the
case plan. When the hearing was held on October 28, 2005, the court found reunification
was the appropriate case plan goal, and ADES withdrew its motion for termination.
¶5 For Manuel, the reunification case plan called for him to resolve his legal
issues, participate in random urinalysis, comply with the recommendations from his
psychological evaluation, and maintain a safe home environment. Although he did not
participate in the plan until four months after his release from prison and was initially slow
to comply with its requirements related to his substance abuse, he was “very attentive to
[his] parenting education [program] and supervised visitation.”
¶6 By the time the juvenile court commenced another permanency hearing in June
2006, Manuel had been complying with random urinalysis more routinely, had been actively
participating in parenting classes and visitation, and had been interacting well with his
daughters. Although concerned about Manuel’s history of substance abuse and his failure
to participate in treatment, his CPS case manager opined, “The most appropriate plan for
Leila and Alayana . . . is reunification with their father. The father has maintained his
sobriety, is employed, and is demonstrating effective parenting skills with his daughters
during supervised parenting classes.” The court found Manuel to be in substantial
compliance with reunification services and gave ADES the discretion to increase Manuel’s
visitation, provided the girls’ therapists approved. Based on his improved performance, the
4
court granted ADES authority to place the children with him, which it did on October 27,
2006.
¶7 Then, on February 9, 2007, as the juvenile court was taking the logistical steps,
with the approval of ADES, to dismiss the dependency proceeding, Manuel was arrested on
felony charges of possessing marijuana for sale. Before his arrest, Manuel had left his
daughters in the care of his mother, even though CPS had warned him that his mother could
not act as the children’s caretaker because she had previously been convicted of child
endangerment. After Manuel’s arrest, CPS returned the girls to the foster parents who had
cared for them from July 2004 until they were placed with Manuel in October 2006. The
foster parents have expressed their willingness to provide a permanent home for Leila and
Alayana.
¶8 Following Manuel’s arrest, the juvenile court held another permanency
hearing in May 2007 and changed the case plan goal to severance and adoption. ADES then
filed a motion to terminate Manuel’s parental rights based on the length of the girls’ court-
ordered, out-of-home placement and allegations that, as evidenced by his recent arrest,
Manuel had substantially neglected or wilfully refused to remedy the circumstances causing
their removal, A.R.S. § 8-533(B)(8)(a), or, alternatively, had been unable to remedy those
5
circumstances and would likely be unable to parent the children in the near future, § 8-
533(B)(8)(b).4
¶9 Manuel appeared at the initial termination hearing and entered a denial to the
allegations in the motion; the juvenile court admonished him “that failure to attend future
hearings without good cause shown may result [in] the hearing going forward in his absence
and the termination of his parental rights.” The court also provided Manuel with written
notice that, absent good cause, his failure to appear for a termination hearing—including “an
initial hearing, a pretrial conference, a status conference or termination
adjudication”—could be deemed a waiver of his legal rights and an admission to the
allegations in the motion and could result in termination of his parental rights based on the
record and evidence.5 See Ariz. R. P. Juv. Ct. 64(C). The notice included the dates of the
scheduled hearings, including the pretrial conference set for July 24, 2007.
¶10 Manuel did not appear for the pretrial conference, and his attorney could not
explain his absence. The juvenile court found that Manuel had no good cause for failing to
appear at the hearing, that his absence was voluntary, that he therefore “waived all of his
rights,” and that “the allegations in the motion to terminate parental rights are deemed
The juvenile court terminated Melissa’s parental rights to Leila and Alayana on
4
July 17, 2007. Melissa did not appeal the order.
Although the notice stated that the “right to a trial” was among the legal rights
5
subject to waiver for a failure to appear, we find no authority in applicable rules or statutes
supporting this admonition.
6
admitted as to [him].” The court then proceeded with the termination hearing in Manuel’s
absence. During the hearing, the court admitted ADES’s exhibits over objections raised by
Manuel’s attorney and over objections that previously had been asserted in the pretrial
statement. Manuel’s attorney then sought to question Manuel’s current CPS case manager,
Glenn Dobbin, but when counsel began asking Dobbin about Manuel’s compliance with the
case plan, ADES objected, arguing Manuel had waived his right to examine the witness by
failing to appear.
¶11 In response, Manuel’s counsel argued that Rule 66(D)(2) “does not permit the
Court to proceed by default. There must be . . . some evidence presented to support . . . any
findings by the Court.” When the juvenile court suggested “[t]he evidence . . . could be and
is in all likelihood contained in the exhibits that were admitted,” Manuel’s counsel
responded, “I think the rule’s silent, but I believe that it’s clear that I could cross-examine
if I wish.”
¶12 When asked to provide an offer of proof, Manuel’s counsel replied that she
hoped to establish:
That the children were found by the Court and by Mr. Dobbin,
. . . that they could be safely returned to the father without a
—without a risk of harm or substantial risk of harm and that
accordingly they were. So that up until that time [of the
January 2007 dependency review hearing] . . . there was no
basis for a severance or even a dependency. . . . And the only
thing that’s changed since then is that he’s been arrested and
hasn’t been found guilty yet.
7
The juvenile court reviewed its findings from the May permanency hearing and informed
Manuel’s counsel:
I am exercising my discretion to decline your request to examine
the caseworker because I’ve already found that your client has
waived all of his legal rights by virtue of his failure to appear
today, including the right to examine the witnesses. I’m going
to consider all the exhibits and all the previous evidence that
was admitted during the course of all these proceedings over
your objection.
Manuel’s counsel responded, “Over my vehement objection.” The court then found that
ADES had proven the allegations in its motion, “specifically [the] length of time in care
pursuant to A.R.S. [§] 8-533(B)(8)(a) and (B)(8)(b),” by clear and convincing evidence and
that terminating Manuel’s parental rights was in the best interests of the children.
Void for Vagueness
¶13 On appeal, Manuel argues that Rule 66(D)(2), the rule setting forth how a
juvenile court may proceed if a parent fails to appear at the termination adjudication hearing,
is unconstitutionally vague. Specifically, he complains Rule 66(D)(2) simultaneously
provides that a failure to appear constitutes an admission to the motion’s allegations and yet
requires the court to consider the record and evidence presented to determine whether
ADES has proven grounds for termination. According to Manuel, no proof would be
necessary if the allegations of the motion were deemed admitted, and the rule is therefore
“internally inconsistent.” He urges us to resolve this alleged ambiguity by nullifying the
portion of Rule 66(D)(2) providing that a parent’s “failure to appear may constitute . . . an
8
admission to the allegation[s] contained in the motion,” because, he maintains, terminating
parental rights based only on a constructive admission, “without a showing that
[termination] is necessary or justified,” would violate a parent’s right to due process.
¶14 In pertinent part, Rule 66(D)(2) provides:
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[s] 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.
This rule establishes procedures to give effect to A.R.S. § 8-863(C), which similarly
provides:
If a parent does not appear at the [termination adjudication]
hearing, the court, after determining that the parent has been
served as provided in subsection A of this section, 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.6
6
Section 8-863 and Rule 66(D)(2), which pertain to termination adjudication
hearings, are applicable to these proceedings even though the July 24, 2007, hearing that
Manuel failed to attend had originally been scheduled as a pretrial conference. The juvenile
court had “convert[ed the pretrial conference] to a termination hearing . . . because of
9
See also § 8-537(C) (same for termination proceeding initiated by petition).7
¶15 As this court has stated,
[a] statute is unconstitutionally vague if it fails to give “a person
of ordinary intelligence a reasonable opportunity to know what
is prohibited, so that he may act accordingly” or if it allows for
arbitrary and discriminatory enforcement by failing to provide
an objective standard for those who are charged with enforcing
or applying the law.
In re Maricopa County Juv. Action No. JS-5209 & No. JS-4963, 143 Ariz. 178, 183, 692
P.2d 1027, 1032 (App. 1984), quoting Grayned v. City of Rockford, 408 U.S. 104, 108
(1972). Manuel does not argue that the provisions of Rule 66(D)(2), or the warnings
required by Rules 64(C) and 65(D)(3), Ariz. R. P. Juv. Ct., fail to apprise a parent that
failing to appear at one of the specified termination proceedings may have dire
consequences. Nor does he assert that Rule 66(D)(2) allows for arbitrary or discriminatory
enforcement against parents who absent themselves from proceedings.
[Manuel]’s failure to appear.” We have previously held that this procedure is implicitly
authorized by Rule 64(C), Ariz. R. P. Juv. Ct., which requires notification to a parent that
failure to appear at an initial termination hearing, pretrial conference, or status conference
could be deemed a waiver of the parent’s legal rights and a constructive admission to the
allegations in the termination motion. Adrian E. v. Ariz. Dep’t of Econ. Sec., 215 Ariz. 96,
¶¶ 8-9, 12, 158 P.3d 225, 228-29 (App. 2007), distinguishing Don L. v. Ariz. Dep’t of
Econ. Sec., 193 Ariz. 556, ¶ 8, 975 P.2d 146, 149 (App. 1998) (holding, under prior
statutes and rules, that no statute or rule authorized juvenile court to “default” parent for
failing to appear at status conference in termination proceedings).
7
In light of the consistency between these statutes and Rule 66(D)(2), we find no
merit in Manuel’s argument that the rule is contrary to statutory intent.
10
¶16 And, although Manuel offers an interpretation of Rule 66(D)(2) that would
render one of its provisions at odds with another, his claim fails if any logical construction
can be placed on the language that harmonizes those provisions. See State v. Hansen, 215
Ariz. 287, ¶ 7, 160 P.3d 166, 168 (2007) (statutory construction principles applied to
interpret court rules); Maricopa County No. JS-5209, 143 Ariz. at 183, 692 P.2d at 1032
(statute “will not be held void for vagueness if any reasonable and practical construction can
be given to its language”).8 As discussed below, a reasonable and practical construction
emerges when we consider each provision of the rule in the context of the others. See
Medders v. Conlogue, 208 Ariz. 75, ¶ 10, 90 P.3d 1241, 1244 (App. 2004) (provisions of
court rule must be considered in context of entire rule and consideration given to all
provisions). Accordingly, we agree with ADES that Manuel has failed to establish that Rule
66(D)(2) is unconstitutionally vague.
Right to Participation by Counsel at Termination Hearing
¶17 Manuel argues the juvenile court erred when it prohibited his counsel from
cross-examining the CPS case manager during the termination hearing that proceeded in
Manuel’s absence. He contends both the language of Rule 66(D)(2) and his fundamental
8
Manuel argues that it would violate due process to terminate his parental rights based
only on his constructive admission of the allegations in the motion for termination after he
failed to appear. We need not address this argument at any length because Rule 66(D)(2)
does not authorize such a procedure. Rather, although a parent’s failure to appear may
“constitute . . . an admission,” Rule 66(D)(2) also expressly requires that termination be
based on the “record and evidence presented if the moving party . . . has proven grounds
upon which to terminate parental rights.”
11
constitutional rights entitled his counsel to conduct that examination. We agree that the
rule’s own language contemplates the participation of counsel to the extent sought by
Manuel’s counsel here.9
¶18 We review questions involving the interpretation of court rules de novo, and
we “evaluate procedural rules using principles of statutory construction, reading those rules
in conjunction with related statutes and harmonizing the two whenever possible” so as to
“avoid[] any unconstitutional construction.” Fragoso v. Fell, 210 Ariz. 427, ¶¶ 7, 13, 111
P.3d 1027, 1030, 1032 (App. 2005) (citation omitted). Furthermore, “[w]e interpret statutes
and rules in accordance with the intent of the drafters, and we look to the plain language of
the statute or rule as the best indicator of that intent.” Id. ¶ 7. If the language of a rule is
ambiguous, however, we may consider “a variety of elements, including the rule’s context,
the language used, the subject matter, the historical background, the effects and
consequences, and its spirit and purpose,” to determine the framers’ intent. State ex rel.
Romley v. Superior Court, 168 Ariz. 167, 169, 812 P.2d 985, 987 (1991).
9
For that reason, we do not address whether Manuel possessed any fundamental or
constitutional right that would have independently required the court to allow that
examination. See City of Tempe v. Outdoor Sys., Inc., 201 Ariz. 106, ¶ 7, 32 P.3d 31, 34
(App. 2001) (appellate court does not reach constitutional issue when matter can be decided
on nonconstitutional grounds). At any rate, we would be reluctant to reach the
constitutional aspect of this claim because Manuel did not meaningfully develop it in his
opening brief. See, e.g., Ariz. Libertarian Party v. Schmeral, 200 Ariz. 486, n.4, 28 P.3d
948, 953 n.4 (App. 2001) (not addressing free-speech issue when parties failed to develop
argument in briefs).
12
¶19 As a threshold matter, the pertinent rules governing termination proceedings
contemplate that the parent is entitled to assistance of counsel, assistance which expressly
includes the right to have counsel secure the attendance of witnesses on the parent’s behalf
and cross-examine any adverse witnesses. See Ariz. R. P. Juv. Ct. 65(C)(2) and (5)
(requiring juvenile court to appoint counsel and advise parent of right to counsel, right to
cross-examine adverse witnesses, right to trial by court on termination motion,10 and right
to subpoena witnesses). Such rights to procedural due process may be waived, however, see
Arizona Department of Economic Security v. Redlon, 215 Ariz. 13, ¶ 9, 156 P.3d 430, 434
(App. 2007), and Rule 66(D)(2) states that a parent’s failure to appear at a termination
adjudication proceeding “may constitute a waiver of rights.”
¶20 But we can only find that a party has waived specific rights if the waiver has
been voluntary, knowing, and intelligent. Webb v. State ex rel. Ariz. Bd. of Med. Exam’rs,
202 Ariz. 555, ¶ 10, 48 P.3d 505, 508 (App. 2002). For that reason, a parent’s
nonappearance cannot constitute a constructive waiver of any rights that the parent has not
been specifically informed he or she could lose by failing to appear. See, e.g., Monica C.
v. Ariz. Dep’t of Econ. Sec., 211 Ariz. 89, ¶ 20, 118 P.3d 37, 41 (App. 2005) (general
notice that parent’s failure to appear might lead to waiver of legal rights insufficient to
The “trial” to which a parent is entitled is the termination adjudication hearing, “an
10
adjudicatory hearing in which the court determines whether the moving party . . . has met
the burden of proving grounds upon which to terminate parental rights and whether
termination is in the best interests of the child.” Ariz. R. P. Juv. Ct. 66(A).
13
constitute waiver of specific right to jury trial); A.J. Bayless Markets, Inc. v. Indus. Comm’n,
134 Ariz. 243, 245, 655 P.2d 363, 365 (App. 1982) (waiver of fundamental right to cross-
examine requires clear showing of intent). To that end, Rule 66(D)(2) requires that the
parent has previously been admonished that the consequences of a failure to appear may be
deemed a waiver of specific legal rights, including “that the hearing could go forward in the
absence of the parent,” that the allegations in the petition may be deemed admitted, and that
the juvenile court may terminate parental rights “based upon the record and evidence
presented.” Because the rule does not specify that the parent also waives the right to
assistance of counsel by failing to appear and because waiver of that specific right could not
result without such a warning, we may infer that the framers of the rule did not contemplate
such a sanction.11
¶21 Other language in the rule supports this construction. The rule’s warning that
a “hearing” may go forward in the parent’s absence suggests that an ex parte determination
is not contemplated and that the parent, albeit personally absent, will have an opportunity
to be “heard.” Moreover, the rules provide that, in a termination proceeding, the parent will
have the right to representation by counsel and that such representation includes the right
to have counsel secure witnesses on the parent’s behalf and challenge any adverse witnesses
11
Manuel was provided warnings about various rights he risked waiving—warnings
that went beyond those required by the rule. But, here, where we are concerned about the
intent of the rule’s framers, the specific warnings Manuel received are not relevant to our
analysis. Nor does the state contend that, by that method, the juvenile court could provide
a parent fewer procedural rights than those contemplated by Rule 66(D)(2).
14
through cross-examination. See Rule 65(C)(5) (itemizing right of parent to counsel and right
of parent to cross-examine and call witnesses). Each of those roles for counsel, as
contemplated by that rule, is an important component of the fact-finding process, intended
to enhance the accuracy of the juvenile court’s determinations. See Ariz. State Dep’t of
Pub. Welfare v. Barlow, 80 Ariz. 249, 253, 296 P.2d 298, 300 (1956) (“hearing” in custody
proceeding necessarily includes right to be represented by counsel); In re Maricopa County
Juv. Action No. JD-561, 131 Ariz. 25, 28, 638 P.2d 692, 695 (1981) (“adversary process
is subverted and made meaningless” without opportunity to test reliability of witnesses
through cross-examination); Monica C., 211 Ariz. 89, ¶¶ 26-27, 118 P.3d at 43 (termination
hearing sufficient when it included representation by counsel, cross-examination, and
opportunity to present evidence and argument); see also Black’s Law Dictionary 852 (4th
rev. ed. 1968) (hearing defined as “[p]roceeding of relative formality . . . with definite issues
of fact or of law to be tried, in which parties proceeded against have right to be heard”). Had
the supreme court intended to dispense with the traditional and salutary roles of counsel as
to a determination of such magnitude, we believe it would have said so expressly.
¶22 Moreover, the admonition required by Rule 66(D)(2) makes clear that the
potential consequences of the parent’s failure to appear are discretionary with the court
rather than mandatory: the parent is advised that the termination proceedings “could” go
forward in the parent’s absence, that the failure to appear “may” constitute a waiver of rights
and an admission to the allegations. See Rule 66(D)(2). The discretionary nature of those
15
determinations, coupled with the absence of any language suggesting the court may make
them ex parte, suggests an implicit role for parent’s counsel in persuading the court to refrain
from imposing some or all of those consequences.
¶23 Finally, as discussed below, a parent’s failure to appear does not relieve the
juvenile court of its obligation to assess the “record and evidence” presented and to
determine whether the state has proven a statutory ground for termination by clear and
convincing evidence—actions that could be enhanced by adversarial participation. In light
of the fact that Rule 66(D)(2) contemplates there will be some form of adjudicatory hearing,
the salutary role of counsel at such hearings, and the absence of any specific admonition or
other notice to the parent that counsel’s participation would be forfeited or foreclosed in the
parent’s absence, we conclude that, in promulgating Rule 66(D)(2), the supreme court did
not intend to deprive parents who fail to appear at a termination proceeding of their right to
the assistance of counsel at that hearing.
Scope of Attorney Participation at Termination Hearing
¶24 In any legal proceeding, the scope of counsel’s participation is necessarily
confined to the relevant topics to be addressed. See Ariz. R. Evid. (implicitly confining
counsel’s role in presenting information and conducting cross-examination to relevant and
admissible topics). Thus, the scope of counsel’s participation in a termination hearing held
pursuant to Rule 66(D)(2) is no broader than the scope of such hearings as set forth in the
rule. That rule authorizes the juvenile court to construe the parent’s absence as “an
16
admission to the allegation contained in the motion or petition for termination.” When the
court has chosen to do so, the parent’s attorney may no longer contest the “allegation[s]”
in the petition because the truth of those allegations is no longer in dispute.
¶25 To resolve Manuel’s claim, however, we must also determine the scope of the
parent’s “admission to the allegation[s]” under the rule. As exemplified in this case, the
allegations in a motion or petition for termination can include both factual assertions and
more general conclusions of law. See Ariz. R. P. Juv. Ct. 64(A) (requiring motion for
termination of parental rights to include “grounds for termination”); § 8-533(B) (itemizing
legal grounds that sufficient evidence must support to justify termination). Here, the record
demonstrates that Manuel’s counsel sought to cross-examine the case manager not to contest
the factual assertions but rather to draw attention to other facts that would address
(1) whether the evidence supported the legal conclusion that Manuel was an unfit parent
and (2) whether the best interests of the children would justify termination of his parental
rights. Therefore, we must determine whether the rule contemplates that, by failing to
appear, a parent admits the legal conclusions urged by the motion or petition, or whether
the parent admits only the specific factual assertions contained therein.
¶26 The other portions of Rule 66(D) assist us in resolving that question.
Although the rule does not directly define the scope of a parent’s admission to an allegation,
it clarifies that such an admission cannot, standing alone, support the termination of the
parent’s rights. Notwithstanding the language in the rule allowing the court to deem the
17
allegations of the motion admitted, the rule provides that the court may terminate a parent’s
rights only if the petitioner or moving party has “proven grounds” for termination “based
upon the record and evidence presented.”
¶27 This requirement—that there be evidence meeting a standard of proof in
support of the grounds alleged—mandates more than a cursory review of the record for a
“factual basis.” Significantly, Rule 66(D)(1)(c) provides that such a cursory review is
sufficient when a parent admits the allegation of a petition or motion in person. See Ariz.
R. P. Juv. Ct. 66(D)(1)(c) (when parent enters oral admission, juvenile court need only
“determine whether factual basis exists” to support termination). From this, we can
confidently conclude that Rule 66(D)(2) contemplates something different—and more
rigorous—when it employs different language to more carefully describe the juvenile court’s
fact-finding duties when, as here, a parent has admitted allegations by failing to appear. See
State v. Jennings, 150 Ariz. 90, 93, 722 P.2d 258, 261 (1986) (if drafter had intended
language found in one provision to apply to related provision, it could have employed same
language in both). Notably, the rule’s requirement that grounds be proven by the moving
party is the rule’s only major deviation from the text of the statute that the rule was designed
to facilitate.12 We assume the supreme court chose this language intentionally and was
aware of the implications of doing so.
12
We do not suggest that the language added by the supreme court is inconsistent with
the statute. Indeed, § 8-863(C) specifically invites the supreme court to prescribe procedural
rules to apply the statute’s terms.
18
¶28 In sum, although the rule provides that a parent’s failure to appear may be
construed as a constructive admission to the allegations of a motion or petition, the
contemplated scope of those admissions must be understood in the context of the rule’s
other provisions. See State v. Hansen, 215 Ariz. 287, ¶ 7, 160 P.3d 166, 168 (2007)
(principles of statutory construction used to interpret court rules); State v. Wagstaff, 164
Ariz. 485, 491, 794 P.2d 118, 124 (1990) (“We strive to construe a statute and its
subsections as a consistent and harmonious whole.”). That language imposes a duty on the
juvenile court to determine whether the grounds for termination have been proven by the
record and evidence—a process that would become unnecessary if we construed a parent’s
failure to appear as a wholesale admission to the legal grounds contained in the allegations.
See State v. Bonnell, 171 Ariz. 435, 437, 831 P.2d 434, 436 (App. 1992) (appellate court
required to avoid interpretation of rule provision that would render another meaningless).13
Thus, when we read the pertinent language relating to a parent’s constructive admissions so
as to harmonize it with the express requirements for a termination hearing set forth in that
13
And, because we cannot read one provision to render another redundant or
superfluous, we clarify that the state’s burden to independently prove the allegations, as
expressly required by the rule, exists regardless of whether the allegations have been deemed
admitted by the parent. Such a construction safeguards the interests of the child in an
accurate determination of whether the parental relationship should be terminated, an interest
that persists even when a parent has failed to appear for a hearing. See Ariz. R. P. Juv. Ct.
36 (“The rules should be interpreted in a manner designed to protect the best interests of the
child . . . .”). It is also consistent with the approach set forth in Rule 66(D)(1). Even under
the relaxed standard applied there for a parent’s in person admissions, the rule requires the
juvenile court to determine independently whether a “factual basis exists” to support those
admissions to the allegations. See Ariz. R. P. Juv. Ct. 66(D)(1)(c).
19
subsection of the rule, we conclude that the parent admits only the factual contentions
contained in the motion. The parent does not thereby concede that those factual allegations
sustain the quantum of evidence required to establish the legal grounds for terminating a
parent’s rights. Rather, the determination of whether the evidence, including admissions,
establishes clearly and convincingly at least one ground for terminating a parent’s rights
remains a relevant and contestable topic at the hearing.14
¶29 Division One of this court has reached a similar, although not identical,
conclusion. In Christy A. v. Arizona Department of Economic Security, 217 Ariz. 299, ¶¶
7-8, 33, 173 P.3d 463, 467, 472 (App. 2007), the court remanded the severance case for
rehearing after the juvenile court prohibited the mother or her attorney from attending the
second day of a termination adjudication hearing, based on a “default” that had been entered
after the mother failed to appear on the first day of the hearing. The appellate court
concluded:
[I]n light of a parent’s fundamental parenting interest, we hold
the entry of default or, more properly stated, a finding of waiver
of rights, precludes [the mother] from affirmatively presenting
testimony or other documentary evidence to contest the
statutory bases for termination, but the requirement of fair
procedures mandates giving [the mother] the opportunity to
remain in the courtroom and participate. That right of
participation includes cross-examination of ADES’s witnesses
....
14
During oral argument, the state did not dispute this interpretation of the rule.
20
Id. ¶ 24. In holding the mother’s right to participate in the hearing would be “limited,” the
court in Christy A. found guidance in “established case law concerning the entry of default
judgments.” Id. ¶¶ 16, 23, 29.
¶30 Like Division One in Christy A., we also find some guidance in cases
addressing the effect of an entry of default under Rule 55, Ariz. R. Civ. P. As explained in
the context of Rule 55:
A default is not treated as an absolute confession by the
defendant of his liability and of the plaintiff’s right to recover.
All well-pleaded facts are admitted by a default, Postal Ben.
Ins. Co. v. Johnson, 64 Ariz. 25, 165 P.2d 173 (1946), but the
defendant is not held to admit facts that are not well-pleaded or
to admit conclusions of law.
S. Ariz. Sch. for Boys, Inc. v. Chery, 119 Ariz. 277, 281-82, 580 P.2d 738, 742-43 (App.
1978); Moran v. Moran, 188 Ariz. 139, 146, 933 P.2d 1207, 1214 (App. 1996) (same;
court properly declined default judgment where unsupported by law). Thus, our courts have
construed the effect of an admission by default in the context of our civil rules of procedure
consistently with our interpretation of Rule 66(D)(2)—that factual allegations are deemed
admitted but legal conclusions are not.
¶31 In reaching our conclusion, based wholly on our construction of Rule
66(D)(2), we disagree with Christy A. to the extent it could be read to preclude a parent’s
counsel from “contest[ing] the statutory bases for termination” and from presenting
affirmative evidence to do so. 217 Ariz. 299, ¶ 24, 173 P.3d at 470. We can find no
language in the rule supporting either prohibition. As we have stated, the rule requires that
21
there be sufficient support for terminating a parent’s rights. Nor does any language in the
rule address the ways in which an attorney may participate at the “default” termination
hearing. And we cannot assume that the rule’s implicit limitation of the relevant scope of
the hearing necessarily requires any limitation in the traditional means of attorney
participation, a topic on which the rule is silent.15
¶32 Applying the above analysis here, Manuel’s counsel was entitled to participate
in the termination hearing to the extent that participation fell within the scope of the
contested issues at the proceeding. The truth of the factual allegations contained in the
motion was not a contested issue because the juvenile court found Manuel had admitted
these allegations by failing to appear for the hearing. However, Rule 66(D)(2) also required
the court to determine whether those factual allegations, coupled with the record and
evidence presented, proved the grounds for termination alleged in the motion. Manuel’s
counsel was therefore entitled to elicit evidence in support of Manuel’s contention that the
15
Our opinion differs from Christy A. in approach as well. In Christy A., the court
found a parent’s fundamental right to due process in the severance proceeding included the
right to have counsel participate. 217 Ariz. 299, ¶¶ 28-29, 173 P.3d at 471. But due
process rights may be waived, see Arizona Department of Economic Security v. Redlon,
215 Ariz. 13, ¶ 9, 156 P.3d 430, 434 (App. 2007), and Christy A. does not address whether
the notice and admonition to the parent contemplated by Rule 66(D)(2), coupled with the
parent’s failure to appear, constitute a valid waiver of the specific rights addressed in Christy
A. We have herein addressed the waiver question only to the extent it informs the supreme
court’s intent in drafting Rule 66(D)(2) and do not suggest that Christy A. has necessarily
imposed an unjustified due process overlay on the rule. See Monica C. v. Ariz. Dep’t of
Econ. Sec., 211 Ariz. 89, ¶ 20, 118 P.3d 37, 41 (App. 2005) (general notice to parent that
failure to appear might lead to waiver of legal rights insufficient to constitute waiver of
specific right to jury trial).
22
factual allegations, albeit true, did not justify such a finding. Because the record
demonstrates that Manuel’s counsel did not seek to examine the CPS case manager to
contest the factual assertions in the motion but rather to emphasize other evidence suggesting
that the factual allegations were insufficient to prove the grounds for termination, the court
erred in precluding that examination.16
¶33 However, we also find this error harmless. See Monica C., 211 Ariz. 89, ¶ 22,
118 P.3d at 42 (harmless error review appropriate for violation of procedural rule). Through
counsel, Manuel had argued passionately that his arrest, standing alone, should not be the
basis for terminating his parental rights in light of his improved efforts to provide a fit home
for his children during the course of the dependency. Manuel’s counsel sought to examine
the case manager to elicit such facts—and to emphasize that the state had drawn conclusions
and taken actions that implicitly acknowledged Manuel’s fitness as a parent. But the record
and the evidence ADES presented at the hearing included each of those facts, and the
juvenile court was therefore well aware of the procedural history of the case. Thus, the
record before us demonstrates that the court was fully aware of, and properly considered,
16
We recognize that allegations stated in motions to terminate may be, and often are,
phrased to assert mixed questions of law and fact. For this reason, we acknowledge that
enforcing the precise boundaries of appropriate attorney participation will require the
juvenile court to exercise sound judgment when analyzing the distinction between a factual
allegation and a legal conclusion based thereon. But we can find no further guidance in the
rule for a more specific standard, and it is the province of our supreme court to amend or
clarify the rule if it feels such further guidance in necessary. See Bergeron ex rel. Perez v.
O’Neil, 205 Ariz. 640, ¶ 28, 74 P.3d 952, 962 (App. 2003) (domain of supreme court to
supplement or supercede its procedural rules).
23
all of the information Manuel’s counsel sought to present when seeking leave to examine
the case manager.
Admission of Exhibits
¶34 Manuel next maintains the juvenile court erred by admitting exhibits into
evidence without supporting testimony. Relying on our decision in Adrian E. v. Arizona
Department of Economic Security, 215 Ariz. 96, ¶ 23, 158 P.3d 225, 231-32 (App. 2007),
the state maintains that, because its exhibits had been admitted at previous hearings, they
were part of the record upon which the court could base its findings. Although the court
failed to adhere to the rules of evidence in admitting one of ADES’s exhibits, we agree with
ADES that, pursuant to Adrian E., those exhibits that had been duly admitted at prior
hearings were part of the record and thus properly considered by the court.17
¶35 However, the court erred in admitting and considering exhibit 21, apparently
a portion of a Pima County Sheriff’s Department incident report describing the
circumstances of Manuel’s arrest in February 2007. Although the report was admitted at
the permanency hearing in May 2007 and therefore, as ADES argues, was also part of the
record subject to the juvenile court’s review, Manuel objected to its admission at both the
Although Manuel suggested at oral argument that the “record,” undefined by Rule
17
66(D)(2), should not include these documents, he did not raise this issue in his briefs. We
therefore will not consider it. See Van Loan v. Van Loan, 116 Ariz. 272, 274, 569 P.2d
214, 216 (1977).
24
May permanency hearing and the termination adjudication hearing on the ground that it
lacked foundation.18
¶36 We agree with Manuel that the juvenile court abused its discretion in admitting
the sheriff’s incident report without requiring evidence of its authenticity, as it does not
appear to be a self-authenticating document under Rule 902, Ariz. R. Evid. See Ariz. R.
Evid. 901(a) (requiring authentication as condition precedent to admissibility); Ariz. R. P.
Juv. Ct. 45(A) (applicability of Arizona Rules of Evidence to dependency and termination
proceedings). Nonetheless, we find no prejudice resulting from the admission of this report.
Although it provides details of Manuel’s arrest not found in any other document in the
record, a CPS case manager’s report of February 13, 2007, admitted at the permanency
hearing and again at the termination adjudication hearing, stated the nature of the charges
against Manuel as well as the effect of Manuel’s arrest on his children, who had been left
for several days with an unauthorized caretaker as a result. In light of this and other
evidence in the case, we cannot conclude the court would have ruled any differently if the
sheriff’s incident report had not been admitted. See Brown v. U.S. Fid. & Guar. Co., 194
Ariz. 85, ¶ 7, 977 P.2d 807, 810 (App. 1998).
This court previously declined to accept jurisdiction of Manuel’s petition for special
18
action challenging the juvenile court’s permanency order. See Manuel M. v. Sabalos, No.
2 CA-SA 2007-0059 (order filed July 18, 2007). We take judicial notice of the transcript
of the May 4 permanency hearing submitted as an appendix to that special action petition.
25
Conclusion
¶37 Although we find the juvenile court erred in admitting evidence without proper
foundation and in denying Manuel’s counsel an opportunity to cross-examine a CPS case
manager about the sufficiency of the evidence to support the grounds alleged for termination,
we conclude these errors were harmless. For the foregoing reasons, as well as those stated
in our separate memorandum decision, we affirm the juvenile court’s order terminating
Manuel’s parental rights.
____________________________________
PETER J. ECKERSTROM, Presiding Judge
CONCURRING:
_____________________________________
PHILIP G. ESPINOSA, Judge
_____________________________________
GARYE L. VÁSQUEZ, Judge
26