Brittany R. v. Dcs ( 2019 )


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  •                       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    UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
    BRITTANY R., Appellant,
    v.
    DEPARTMENT OF CHILD SAFETY, X.R., E.R., I.R., Appellees.
    No. 1 CA-JV 18-0411
    FILED 5-21-2019
    Appeal from the Superior Court in Maricopa County
    No. JD23594
    The Honorable M. Scott McCoy, Judge
    AFFIRMED
    COUNSEL
    The Stavris Law Firm, PLLC, Scottsdale
    By Christopher Stavris
    Counsel for Appellant
    Arizona Attorney General’s Office, Tucson
    By Michelle R. Nimmo
    Counsel for Appellee Department of Child Safety
    BRITTANY R. v. DCS, et al.
    Decision of the Court
    MEMORANDUM DECISION
    Judge Maria Elena Cruz delivered the decision of the Court, in which
    Presiding Judge Jennifer B. Campbell and Judge James B. Morse Jr. joined.
    C R U Z, Judge:
    ¶1             Brittany R. (“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 her initial severance hearing. For the following
    reasons, we affirm.
    FACTS AND PROCEDURAL HISTORY
    ¶2            In January 2017, the Department of Child Safety (“DCS”)
    removed X.R., E.R., and I.R. (the “children”) from Mother’s care after
    Mother admitted methamphetamine use; and DCS offered reunification
    services. That month, Mother signed Form I, “Notice to Parent in
    Dependency Action,” requiring her to attend all court hearings and that the
    failure to appear could result in a finding that Mother waived her legal
    rights, admitted the allegations in the motion and the court could proceed
    based on the record presented.
    ¶3           In February 2017, the court adjudicated the children
    dependent as to Mother based on allegations of Mother’s substance abuse
    and approved a family reunification case plan. In December 2017, Mother
    signed Form III, “Notice to Parent in Termination Action,” which states that
    Mother was to attend all hearings and failure could result in waiver of legal
    rights and admission of the allegations included in the motion for
    termination. The form also explained that the hearing could proceed in
    Mother’s absence, resulting in termination of parental rights based on the
    record and evidence presented.
    ¶4           After Mother demonstrated sobriety, DCS returned the
    children to Mother’s care in May 2018. The juvenile court, however, did not
    dismiss the dependency action and in June 2018, Mother failed to attend a
    dependency review hearing. Mother relapsed in June 2018 and DCS once
    again removed the children from Mother’s custody in July 2018. The
    relapse was confirmed by Mother’s hair follicle tests, which were positive
    for methamphetamine in June and July 2018.
    2
    BRITTANY R. v. DCS, et al.
    Decision of the Court
    ¶5            In August 2018, Mother again failed to appear for a
    dependency review hearing, where the juvenile court changed the case plan
    to severance and adoption. Later that month, DCS moved to terminate
    mother’s parental rights on the grounds that her history of chronic
    substance abuse rendered her unable to discharge her parental
    responsibilities, Arizona Revised Statutes (“A.R.S.”) section 8-533(B)(3),
    and that the duration of the children’s cumulative time in an out-of-home
    placement had exceeded fifteen months with a substantial likelihood that
    Mother would not be able to parent in the near future, A.R.S. § 8-
    533(B)(8)(c). The juvenile court set the initial severance hearing for
    September 18, 2018, and Mother received timely notice by mail, which the
    juvenile court later confirmed at the initial severance hearing, without
    objection from Mother’s attorney.
    ¶6            During July and August 2018, Mother exchanged emails with
    her DCS case manager explaining she was actively, but unsuccessfully,
    seeking inpatient substance abuse treatment at Crossroads. Mother’s last
    email on August 28, 2018 stated, “you will be on the ROI [Release of
    Information] so that [you] can call [and] make sure that [I] am there.” The
    emails also reflect that Mother knew she would have limited access to a
    telephone.
    ¶7           Mother failed to appear at the September 18 initial severance
    hearing, and her attorney provided no excuse for her absence. The juvenile
    court found service was complete, and that Mother failed to appear at the
    hearing without good cause. The juvenile court granted DCS’s request to
    proceed to termination immediately. DCS presented evidence to justify
    severance, and the juvenile court issued Findings of Fact and Conclusions
    of Law terminating Mother’s parental rights.
    ¶8            In October 2018, Mother filed a motion to set aside the
    juvenile court’s finding that she failed to appear without good cause.
    Mother contended there was good cause for her failure to appear because
    at the time of the hearing she was a patient at Crossroads rehabilitation
    facility. An email from a Crossroads employee attached to the motion
    stated that Mother had been a resident at Crossroads since September 10,
    2018, at which time she tested positive for “Meth and Benzos.” The email
    further stated that Mother and Crossroads staff attempted to contact DCS
    numerous times, and DCS failed to respond.
    ¶9           In response, DCS stated the last contact DCS received from
    Mother was a September 10, 2018 voicemail, explaining Mother was trying
    to get accepted at Crossroads but had not yet been accepted. However,
    3
    BRITTANY R. v. DCS, et al.
    Decision of the Court
    when DCS contacted Crossroads, they refused to confirm whether Mother
    was in their program. The next time DCS received any contact from
    Crossroads or Mother was after the severance hearing, on October 3, 2018.
    ¶10           The superior court heard argument on Mother’s motion to set
    aside the severance orders. Counsel for DCS informed the court that after
    the case manager’s last exchange with Mother, the case manager went to
    Mother’s last known address and contacted Crossroads, but the facility
    would not confirm whether Mother was a patient there. The juvenile court
    denied Mother’s motion. Mother timely appealed. We have jurisdiction
    pursuant to A.R.S. §§ 8-235, 12-120.21(A)(1), and 12-2101(A)(2).
    DISCUSSION
    ¶11          Mother argues that the juvenile court erred in denying her
    motion to set aside the court’s termination order, contending that she had
    good cause for her failure to appear at the initial termination hearing. We
    disagree.
    ¶12            When a parent has failed to appear at an initial severance
    hearing without good cause, and the court finds the parent had proper
    notice and was previously admonished as to the consequences of failing to
    appear, Arizona Rule of Procedure for the Juvenile Court 65(C)(6)(c) allows
    a court to find the parent waived her right to contest the allegations on the
    motion for termination, deem the parent to have admitted the statutory
    basis for severance, and “proceed with the adjudication of termination
    based upon the record and evidence presented.” See also A.R.S. § 8-863(C);
    Ariz. R.P. Juv. Ct. 64(C).
    ¶13            To show good cause to set aside a termination order arising
    out of a scheduled initial severance hearing, a parent must only prove
    mistake, inadvertence, surprise, or excusable neglect. Trisha A. v. Dep’t of
    Child Safety, 
    245 Ariz. 24
    , 31-32, ¶¶ 17, 22 (App. 2018). A finding of good
    cause for failure to appear is largely discretionary. John C. v. Sargeant ex rel
    Maricopa Cty., 
    208 Ariz. 44
    , 47, ¶ 13 (App. 2004), superseded on other grounds
    as recognized by Ariz. Dep’t of Econ. Sec. v. Reinstein, 
    214 Ariz. 209
    (App. 2007).
    “Excusable neglect exists if the neglect or inadvertence is such as might be
    the act of a reasonably prudent person in the same circumstances.” Christy
    A. v. Ariz. Dep’t of Econ. Sec., 
    217 Ariz. 299
    , 304, ¶ 16 (App. 2007) (internal
    quotations and citation omitted).
    ¶14          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 Adrian E. v. Ariz. Dep’t of Econ.
    4
    BRITTANY R. v. DCS, et al.
    Decision of the Court
    Sec., 
    215 Ariz. 96
    , 101, ¶ 15 (App. 2007); Christy 
    A., 217 Ariz. at 303
    , ¶ 12
    (addressing a motion to set aside). We will reverse a finding that a parent
    lacked good cause for failing to appear only if the juvenile court’s exercise
    of discretion was “manifestly unreasonable, or exercised on untenable
    grounds, or for untenable reasons.” Adrian 
    E., 215 Ariz. at 101
    , ¶ 15
    (citations and quotation omitted).
    ¶15           Mother does not deny receiving notice of the September 18
    hearing, as well as notice that her failure to appear for scheduled hearings
    could result in the waiver of certain legal rights and an admission of DCS’s
    allegations. She instead argues there was good cause for her failure to
    appear.
    ¶16            We find no error in the juvenile court’s finding that Mother
    failed to demonstrate good cause for her absence from the initial severance
    hearing. Despite having adequate notice of the exact date and time of the
    hearing, she made no effort to contact her counsel or the court. Although
    she asserts that Crossroads staff attempted to contact DCS, she cites no
    evidence suggesting her residence at Crossroads was an insurmountable
    barrier to contacting the court before September 18. To the contrary,
    Crossroads’ October 11, 2018 email reveals Mother left Crossroads without
    permission on October 10, 2018, purportedly to go to the DCS office.
    Further, Mother’s emails to her DCS case manager acknowledge that she
    knew she would have limited access to telephones and that she needed to
    sign a Release of Information for DCS to confirm she was a Crossroads
    patient. However, when Mother’s case manager contacted Crossroads to
    confirm Mother was a patient there, the facility refused to provide any
    information. Mother does not argue she ever signed the ROI authorizing
    DCS to obtain information from Crossroads as planned.1 Therefore, the
    court could reasonably conclude that, entering treatment and failing to sign
    the ROI, Mother thwarted DCS’s efforts to communicate with Mother or to
    verify her status as a Crossroads patient at the time of the hearing. On this
    record, we cannot say that the juvenile court abused its discretion. Mother’s
    conduct was not that of a reasonably prudent person facing termination of
    her parental rights. Accordingly, the superior court did not err.
    1        In an email dated November 7, 2018, DCS references an October 3,
    2018 voicemail wherein a Crossroads representative inquired about future
    court dates and informed DCS that Crossroads had an ROI which allowed
    it to receive information about Mother’s court case. Even if this ROI existed,
    it would not necessarily permit Crossroads to release information about
    Mother to third parties.
    5
    BRITTANY R. v. DCS, et al.
    Decision of the Court
    CONCLUSION
    ¶17          Mother does not challenge the juvenile court’s findings in
    support of severance, and because we find no error in the determination
    that she failed to appear without good cause, we affirm the order
    terminating Mother’s parental rights to the children.
    AMY M. WOOD • Clerk of the Court
    FILED: AA
    6
    

Document Info

Docket Number: 1 CA-JV 18-0411

Filed Date: 5/21/2019

Precedential Status: Non-Precedential

Modified Date: 5/21/2019