Shaylene E. v. Ades, B.E. ( 2014 )

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
SHAYLENE E., Appellant,
v.
ARIZONA DEPARTMENT OF ECONOMIC SECURITY, B.E., Appellees.
No. 1 CA-JV 13-0285
FILED 4-24-2014
Appeal from the Superior Court in Maricopa County
No. JD23280
The Honorable Joan M. Sinclair, Judge
AFFIRMED
COUNSEL
Maricopa County Public Advocate, Mesa
By Suzanne W. Sanchez
Counsel for Appellant
Arizona Attorney General’s Office, Phoenix
By Nicholas Chapman-Hushek
Counsel for Appellees
Shaylene E. v. ADES, B.E.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Donn Kessler delivered the decision of the Court, in
which Judge Patricia K. Norris and Judge Maurice Portley joined.
K E S S L E R, Presiding Judge:
¶1 Shaylene E. (“Mother”) appeals the juvenile court’s order
terminating her parental relationship with her daughter, B.E. For the
following reasons, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 Mother is the biological parent of B.E., born in 2010, and
J.E.,1 born in 2013. At the time of his birth, J.E. and Mother tested positive
for amphetamines. Child Protective Services (“CPS”) was contacted and
during its investigation learned that Mother had another child, B.E.,
residing with a maternal great-aunt in Kingman, Arizona. B.E. had been
residing with her great-aunt since she was approximately six weeks old
because Mother was unable to provide for her.
¶3 In April 2013, the juvenile court found B.E. dependent and
set the case plan to family reunification concurrent with severance and
adoption. Mother was referred to TERROS Families First for substance
abuse treatment, but did not participate. Mother was also referred to
TASC to submit random urinalyses. She submitted only one urinalysis,
the results of which were negative.
¶4 In July 2013, B.E.’s Guardian Ad Litem (“GAL”) filed a
motion to terminate Mother’s parental rights, alleging Mother was unable
to fulfill her parental responsibilities due to a history of chronic substance
abuse. The GAL further alleged that termination was in B.E.’s best
interests because termination would allow B.E. to be adopted by her great-
aunt, thereby providing permanency and stability with a relative capable
of meeting B.E.’s needs. At the initial severance hearing on August 22,
2013, Mother contested termination as to B.E. and requested a pretrial
1Mother did not contest termination as to J.E. Therefore the termination as
to J.E. is not a subject of this appeal.
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Shaylene E. v. ADES, B.E.
Decision of the Court
conference, but did not contest the termination as to J.E. As a result, the
pretrial conference for B.E. was scheduled for September 27, 2013, and
following testimony, the court severed Mother’s parental rights to J.E.2
¶5 Mother did not attend the scheduled pretrial conference
hearing. Mother’s attorney was unaware where her client was and had
not had any contact with her since the August 22 hearing. The case
manager testified that Mother came to the CPS office on September 6 and
Mother had acknowledged the hearing date at that time. Therefore, the
court found Mother waived her rights by failing to appear.
¶6 The court received testimony to support the severance
action. The CPS case manager opined that Mother’s parental rights
should be terminated because Mother had failed to maintain a normal
parent-child relationship, was unable to provide financial support for B.E.,
and had refused to participate in reunification services. The case manager
also opined that termination was in B.E.’s best interests because it would
allow B.E.’s great-aunt, with whom B.E. had been living with most of her
life, to adopt her. Based on the case manager’s testimony and CPS’s May
17, 2013 Progress Report, the court ordered termination of Mother’s
parent-child relationship with B.E. pursuant to Arizona Revised Statutes
(“A.R.S.”) section 8-533(B)(1) (2014)3 (abandonment).
¶7 Mother filed a motion to reconsider and to set aside the
termination order on October 15, 2013, arguing that she had good cause
for failing to appear. Mother alleged that she received correspondence
that the severance publication hearing for the fathers, also scheduled on
September 27, had been vacated and rescheduled for December 3, 2013.
The motion alleged that Mother mistakenly understood the order also
rescheduled her pretrial conference and, as a result, Mother failed to
appear for her hearing. While her motion for reconsideration was
pending, Mother filed a timely notice of appeal from the severance order.
As a result, the juvenile court issued a minute entry on November 15, 2013
refusing to rule on Mother’s motion to reconsider. The court concluded
that Mother’s notice of appeal deprived it of jurisdiction to rule on the
motion. This Court subsequently issued an order suspending Mother’s
2 After scheduling the pretrial conference for the contested severance as to
B.E., Mother asked to be excused for the remainder of the hearing related
to the uncontested severance of J.E.
3 We cite to the current versions of statues when no revisions material to
this decision have since occurred.
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Shaylene E. v. ADES, B.E.
Decision of the Court
appeal and remanding the matter to the juvenile court to rule on the
merits of Mother’s motion to reconsider.
¶8 On March 12, 2014, the juvenile court issued a minute entry
denying Mother’s motion to reconsider. The juvenile court found Mother
had received notice of the pretrial conference date at the August 22
hearing and in the subsequent minute entry.4 The juvenile court also
found Mother’s reliance on the order rescheduling the severance
publication hearing as to fathers was unreasonable because the hearing
related to Mother and the hearing related to fathers were clearly outlined
in the August 22 minute entry. Additionally, the order rescheduling the
publication hearing made no reference to Mother or the pretrial
conference.
¶9 Mother filed a timely amended appeal on March 19, 2014 but
did not file a supplemental brief. We have jurisdiction pursuant to A.R.S.
§§ 8-235(A) (2014) and 12-120.21(A)(1) (2003).
DISCUSSION
¶10 Mother argues that the juvenile court erred by denying her
motion to reconsider because she established good cause for failing to
appear.5 She also argues that the court erred by proceeding by default
and finding termination was in the best interests of B.E.
I. Good Cause for Failure to Appear
¶11 We review a juvenile court’s decision on good cause for non-
appearance for an abuse of discretion and “will reverse only if the juvenile
court’s exercise of that discretion was manifestly unreasonable, or
exercised on untenable grounds, or for untenable reasons.” Adrian E. v.
Ariz. Dep’t of Econ. Sec., 215 Ariz. 96, 101, ¶ 15, 158 P.3d 225, 230 (App.
2007) (internal quotations and citation omitted).
¶12 The juvenile court may proceed with a severance hearing by
default if a parent fails to appear at the hearing without good cause after
having been notified of the hearing and the consequences of a failure to
4 In the minute entry denying Mother’s motion, the juvenile court stated
that the initial severance hearing was held August 27, 2013 however; the
record indicates the hearing was August 22.
5 Because Mother did not file a supplemental brief, we will only consider
the arguments presented in her opening and reply briefs.
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Decision of the Court
appear. See A.R.S. § 8-537(C) (2014); Ariz. R.P. Juv. Ct. 64(C). To
demonstrate good cause to set aside a default finding, the moving party
must show that:
(1) mistake, inadvertence, surprise or excusable neglect
exists, and (2) a meritorious defense to the claims exists.
Excusable neglect exists if the neglect . . . is such as
might be the act of a reasonably prudent person in the
same circumstances. A meritorious defense must be
established by facts and cannot be established through
conclusions, assumptions or affidavits based on other
than personal knowledge.
Christy A. v. Ariz. Dep’t of Econ. Sec., 217 Ariz. 299, 304-05, ¶ 16, 173 P.3d
463, 468-69 (App. 2007) (internal quotations and citations omitted).
¶13 In support of its order denying Mother’s motion to
reconsider, the juvenile court found that Mother’s reliance upon the order
rescheduling the severance publication hearing was unreasonable and did
not constitute excusable neglect sufficient to demonstrate good cause.
Mother attended the initial severance hearing, was present for the pretrial
conference date and the subsequent minute entry from that proceeding
clearly distinguished between the pretrial conference for Mother on
September 27, 2013, and the severance publication hearing for fathers. A
reasonably prudent person, therefore, would not have confused the two,
and the court did not abuse its discretion in denying Mother’s motion to
reconsider.
¶14 Mother argues that only deliberate conduct justifies default,
and explains that a party’s conduct is deliberate if she intends to delay
proceedings. Mother asserts that the court should have found good cause
because her failure to appear was merely a misunderstanding of the
correct date, and she did not intend to delay the proceedings.
¶15 We disagree with Mother. As explained above, the court
may find that a parent has waived her rights if she fails to appear after
being informed that the matter may proceed by default if she fails to
attend any hearing. See also Manuel M. v. Ariz. Dep’t of Econ. Sec., 218 Ariz.
205, 211, ¶ 20, 181 P.3d 1126, 1132 (App. 2008). Here, Mother was told at
the August 22, 2013 hearing and by minute entry that failure to appear
may result in a waiver of her rights and an adjudication of the issues.
Because Mother had notice of what could occur if she failed to attend the
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Decision of the Court
pretrial conference, the court did not abuse its discretion by proceeding by
default.
¶16 Mother’s reliance on FOC Financial Limited Partnership v.
National City Commercial Capital Corporation, 612 F. Supp. 2d 1080, 1082 (D.
Ariz. 2009), is misplaced. FOC merely addressed when an entry of default
could be set aside in a breach of contract case. Id.
II. Best Interests
¶17 Before terminating a parent-child relationship, the court
must consider the best interests of the child. A.R.S. § 8-533(B). That
termination is in the best interests of the child must be demonstrated by a
preponderance of the evidence. Ariz. Dep’t of Econ. Sec. v. Matthew L., 223
Ariz. 547, 549, ¶ 7, 225 P.3d 604, 606 (App. 2010). The court must make “a
finding as to how the [child] would benefit from a severance or be harmed
by the continuation of the relationship.” Raymond F. v. Ariz. Dep’t of Econ.
Sec., 224 Ariz. 373, 379, ¶ 30, 231 P.3d 377, 383 (App. 2010) (internal
quotations and citation omitted). The court may consider a number of
factors in making a best interest determination, including: (1) whether
adoptive placement is immediately available, (2) whether the existing
placement is meeting the child’s needs, and (3) whether the child is
adoptable. Id. On appeal, we review the juvenile court’s findings of fact
in the light most favorable to upholding the order and will not disturb its
determination unless no reasonable evidence exists to support its factual
findings. Matthew L., 223 Ariz. at 549, ¶ 7, 225 P.3d at 606.
¶18 Mother does not dispute B.E.’s adoptability. Instead, Mother
argues that because the court erred by finding no good cause for her non-
appearance and proceeding by default, she was denied the opportunity to
testify regarding her bond with B.E., thereby rendering the best interests
finding defective. Although Mother was not present, the court heard
testimony that supports its best interests finding. Namely, the CPS case
manager testified regarding Mother’s inability to care for B.E. given her
history of chronic drug abuse, and that severance would allow B.E. to be
adopted by her great-aunt and allow both siblings to remain together.
Consequently, we find no abuse of discretion.
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Shaylene E. v. ADES, B.E.
Decision of the Court
CONCLUSION
¶19 The juvenile court did not abuse its discretion in finding no
good cause for Mother’s failure to appear, and we affirm its order to
proceed by default. Additionally, because the evidence sufficiently
supported a best interests finding, we affirm the juvenile court’s order to
terminate Mother’s parental rights to B.E.
:MJT
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