Brittany R. v. Dcs ( 2019 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
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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,
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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.
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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.
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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
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