Marianne N. v. Department of Child Safety

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

MARIANNE N., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, O.N., I.T., A.G., Appellees.

No. 1 CA-JV 16-0085

FILED 10-4-2016

Appeal from the Superior Court in Coconino County

No. S0300JD20090008

The Honorable Margaret A. McCullough, Judge

AFFIRMED

COUNSEL

Harris & Winger, Flagstaff

By Chad Joshua Winger

Counsel for Appellant

Arizona Attorney General’s Office, Mesa

By Nicholas Chapman-Hushek

Counsel for Appellee Department of Child Safety

OPINION

Presiding Judge Kenton D. Jones delivered the Opinion of the Court, in

which Judge Randall M. Howe and Judge Donn Kessler joined.

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MARIANNE N. v. DCS, et al.

Opinion of the Court

J O N E S, Judge:

¶1 Marianne N. (Mother) appeals the termination of her parental

rights to O.N., I.T., and A.G. (the Children). Contrary to Mother’s

arguments, Arizona Rule of Procedure for the Juvenile Court 64(C), which

permits the juvenile court to deem a parent’s failure to appear at a pretrial

conference without good cause a waiver of the opportunity to contest the

allegations of a pending termination motion, is a proper exercise of judicial

authority and therefore constitutional. Mother also failed to show the trial

court erred in finding she did not establish good cause for her failure to

appear at the pretrial conference and that severance is in the Children’s best

interests. Accordingly, we affirm.

FACTS1 AND PROCEDURAL HISTORY

¶2 In February 2015, DCS filed a petition alleging the Children

were dependent as to Mother on the grounds of neglect and substance

abuse.2 After a contested hearing, the juvenile court adjudicated the

Children dependent as to Mother in June 2015 and approved a case plan of

family reunification concurrent with severance and adoption. Mother’s

participation in services was inconsistent; she also continued to minimize

DCS’s concerns regarding her substance abuse, history of domestic

violence, and mental health and, on the rare occasion she participated in

drug testing, tested positive for methamphetamine.

¶3 In November 2015, the case plan was changed to severance

and adoption. DCS then moved to terminate Mother’s parental rights on

the grounds of neglect, substance abuse, and the length of time the Children

had been in an out-of-home placement. See Ariz. Rev. Stat. (A.R.S.) § 8-

533(B)(2), (3), (8).3

1 We view the facts in the light most favorable to upholding the

juvenile court’s order terminating parental rights. Ariz. Dep’t of Econ. Sec.

v. Matthew L., 223 Ariz. 547, 549, ¶ 7 (App. 2010) (citing Manuel M. v. Ariz.

Dep’t of Econ. Sec., 218 Ariz. 205, 207, ¶ 2 (App. 2008)).

2 The petition also alleged the Children were dependent as to their

fathers on grounds of neglect, abandonment, domestic violence, and/or

lengthy incarceration, but the fathers are not parties to this appeal.

3 Absent material changes from the relevant date, we cite a statute’s

current version.

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MARIANNE N. v. DCS, et al.

Opinion of the Court

¶4 At the initial severance hearing, the juvenile court set a

mediation and pretrial conference for January 20, 2016 and advised Mother

both orally and in writing of the consequences if she failed to attend the

initial severance hearing, pretrial conference, or termination hearing

without good cause. Mother received, signed, and returned the Form 3:

Notice to Parent in Termination Action, which correctly identified the date

and time of the conference. However, Mother was not present at 1:00 p.m.

when the January 20 mediation began. Although Mother attempted to call

into the pretrial conference thirty minutes after it commenced, she had not

received permission to appear telephonically, and the court did not allow

her to participate by phone.

¶5 Through counsel, Mother reported having been given a

handwritten piece of paper at the initial severance hearing indicating the

pretrial conference was scheduled for January 27, 2016. The juvenile court

noted the Form 3 Mother signed and returned contained the correct date

and time for the conference, determined Mother did not have good cause

for her failure to appear in person as ordered, and proceeded in her absence.

¶6 After receiving exhibits and testimony from the DCS case

worker, the juvenile court found DCS had proven all three statutory

grounds for severance by clear and convincing evidence and that 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 to the Children. 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. Rule 64(C) is Constitutional.

¶7 Mother first argues Arizona Rule of Procedure for the

Juvenile Court 64(C), which authorizes the juvenile court to proceed on a

motion for termination of parental rights when a parent fails to appear at a

pretrial conference, is unconstitutional because it is an improper exercise of

our supreme court’s rule-making authority. We review constitutional

issues de novo, see In re Andrew C., 215 Ariz. 366, 367, ¶ 6 (App. 2007) (citation

omitted), noting the burden of proving unconstitutionality rests with

Mother, Planned Parenthood Ariz., Inc. v. Am. Ass’n of Pro-Life Obstetricians &

Gynecologists, 227 Ariz. 262, 268, ¶ 9 (App. 2011) (citing Ariz. Dep’t of Pub.

Safety v. Superior Court (Falcone), 190 Ariz. 490, 494 (App. 1997)).

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MARIANNE N. v. DCS, et al.

Opinion of the Court

¶8 Proceedings for the termination of parental rights may be

initiated by motion if the child is dependent and the juvenile court finds a

case plan of severance and adoption is in the child’s best interests, A.R.S.

§ 8-862(D); Ariz. R.P. Juv. Ct. 64(A), or by petition if the child is not

dependent, Ariz. R.P. Juv. Ct. 64(B); see A.R.S. § 8-533(A). With regard to

hearings to terminate parental rights, A.R.S. § 8-863(C) states:

If a parent does not appear at the 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.

Rule 64(C) contains a similar provision permitting the court to consider the

parent’s failure to appear without good cause as a waiver of the

opportunity to contest the allegations of the petition. Rule 64(C) also allows

waiver to be found if the parent fails to appear at an initial severance

hearing, pretrial conference, or status conference. See also Adrian E. v. Ariz.

Dep’t of Econ. Sec., 215 Ariz. 96, 100, ¶ 12 (App. 2007) (interpreting Rule

64(C) to authorize the juvenile court to terminate the parental rights of a

parent who fails to appear without good cause for a status conference on a

pending motion for termination). Mother argues Rule 64(C)’s expansion

beyond the circumstances specifically identified in A.R.S. § 8-863(C)

violates separation of powers principles.

¶9 The Arizona Constitution divides the powers to create,

enforce, and interpret law among the legislative, executive, and judicial

branches, respectively, mandating that “such departments shall be separate

and distinct, and no one of such departments shall exercise the powers

properly belonging to either of the others.” Ariz. Const. art. 3. As

applicable here, our supreme court is granted the exclusive “[p]ower to

make rules relative to all procedural matters in any court.” Ariz. Const. art.

6, § 5; see also State v. Blazak, 105 Ariz. 216, 217 (1969).

¶10 The line between the legislature’s enactment of substantive

law and the court’s adoption of procedural rules is not always clear. See,

e.g., Andrews v. Willrich, 200 Ariz. 533, 535, ¶ 7 (App. 2001) (“[A]n

unyielding separation of powers is impracticable in a complex government,

and some blending of powers is constitutionally acceptable.”) (citations

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MARIANNE N. v. DCS, et al.

Opinion of the Court

omitted). Although the legislature may enact “supplementary provisions

to court-devised procedural rules,” in the event of a conflict in procedure,

our supreme court’s rules control. Pompa v. Superior Court, 187 Ariz. 531,

534 (App. 1997) (citations omitted). Likewise, our supreme court is

prohibited from altering the substantive law created by statute. Daou v.

Harris, 139 Ariz. 353, 357-58 (1984); see also Brush Wellman, Inc. v. Lee, 196

Ariz. 344, 348, ¶ 12 (App. 2000). The distinction between substantive rights

and procedural rules is not pristine or capable of definition in the abstract.

It has, however, been described as follows:

[S]ubstantive law is that part of the law which creates, defines

and regulates rights; . . . procedural law is that which

prescribes the method of enforcing the right or obtaining

redress for its invasion. It is often said the [procedural] law

pertains to and prescribes the practice, method, procedure or

legal machinery by which the substantive law is enforced or

made effective.

State v. Birmingham, 96 Ariz. 109, 110 (1964) (citations omitted).

¶11 Mother argues “the substantive scope wherein one may be

deprived of [her] substantive legal right to one’s natural child for failure to

appear in court” has been authorized in A.R.S. § 8-863(C) only when the

parent fails to appear at the termination hearing itself, and Rule 64(C)

impermissibly alters the substantive law by authorizing the juvenile court

to proceed in her absence based upon a failure to appear at a pretrial

conference. Mother, however, misunderstands the effect of her failure to

appear under Rule 64(C).

¶12 A parent’s absence from a pretrial proceeding does not

automatically result in the termination of her parental rights. See Tina T. v.

Dep’t of Child Safety, 236 Ariz. 295, 299, ¶ 16 (App. 2014) (noting the Arizona

Rules of Procedure for the Juvenile Court protect a parent from losing

parental rights solely upon the basis that she does not contest the

allegations of the petition) (citing In re Brittany Ann H., 607 N.W.2d 607, 619,

¶ 52 (Wis. 2002)). Rather, it results in a waiver of the parent’s opportunity

to contest the allegations of the petition. See Ariz. R.P. Juv. Ct. 64(C)

(advising a parent that failure to appear without good cause “may result in

a finding that the parent . . . has waived legal rights, and is deemed to have

admitted the allegations in the motion or petition for termination”); see also

A.R.S. § 8-863(C) (“If a parent does not appear at the hearing, the court . . .

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.”);

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MARIANNE N. v. DCS, et al.

Opinion of the Court

Christy A. v. Ariz. Dep’t of Econ. Sec., 217 Ariz. 299, 304, ¶ 14 (App. 2007)

(advising that juvenile courts should not use “default terminology” when a

parent fails to appear, but should consider “whether the parent can show

‘good cause’ . . . and whether, under the circumstances, such failure should

constitute a ‘waiver of rights’”).

¶13 Upon concluding the parent has waived those rights, the

juvenile court does not simply enter a severance by default, but must still

hear testimony, receive evidence, and enter appropriate findings and

orders based upon the record. See Ariz. R.P. Juv. Ct. 65(C)(6)(c), 66(D)(2),

(F); Tina T., 236 Ariz. at 299, ¶ 16 (“[S]imply because parents d[o] not . . .

contest a request for termination does not mean their rights are

automatically severed. Instead, the juvenile court must comply with Rule

66(D)(1), which includes determining whether the party seeking

termination has presented evidence establishing the existence of a factual

basis to support the alleged grounds for termination.”); Manuel M., 218

Ariz. at 211-12, ¶¶ 19-20, 23 (“[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 [petitioner] has proven a statutory

ground for termination by clear and convincing evidence . . . .”) (internal

quotations omitted). The parent retains her rights, through counsel, to

attend and participate in the termination hearing, pose evidentiary

objections, cross-examine witnesses, and present evidence relevant to the

child’s best interests. See Christy A., 217 Ariz. at 306, ¶ 24 (“[A] finding of

waiver of rights[] precludes Mother from affirmatively presenting

testimony or other documentary evidence to contest the statutory bases for

termination, but the requirement of fair procedures mandates giving

Mother the opportunity to remain in the courtroom and participate. That

right of participation includes cross-examination of [DCS]’s witnesses and

testifying if she so desires as it relates to the issue of the best interests of the

children.”); see also Manuel M., 218 Ariz. at 211-12, ¶¶ 20-21, 23.

¶14 Rule 64(C) does not create, define, regulate, or alter a person’s

substantive right to parent; it merely outlines the circumstances by which a

parent may waive her ability to contest the allegations of the motion. And

we have routinely held that rules regarding waiver are procedural, not

substantive. See, e.g., Dombey v. Phx. Newspapers, Inc., 150 Ariz. 476, 482

(1986); Azore, L.L.C. v. Bassett, 236 Ariz. 424, 427, ¶ 7 (App. 2014) (“[W]aiver

is a procedural concept . . . .”). We therefore conclude Rule 64(C) is

procedural and is not an unconstitutional exercise of judicial authority.

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MARIANNE N. v. DCS, et al.

Opinion of the Court

II. Mother Failed to Provide Good Cause for Her Failure to Appear.

¶15 Mother next argues the juvenile court erred in concluding she

lacked good cause for her failure to appear at the pretrial conference. We

review the court’s finding that a parent lacked good cause for her failure to

appear 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., 215

Ariz. at 101, ¶ 15 (quoting Lashonda M. v. Ariz. Dep’t of Econ. Sec., 210 Ariz.

77, 83, ¶ 19 (App. 2005)).

¶16 Mother does not dispute she was properly served with the

motion for termination and had previously received notice that her parental

rights could be terminated if she failed to attend proceedings without good

cause; she argues only that her mistake regarding the date of the hearing

was reasonable and excusable. However, the record reflects Mother signed

and returned the Form 3: Notice to Parent in Termination Action, which

clearly and correctly listed the date and time of the initial severance hearing.

And, although given the opportunity, Mother never provided any evidence

or testimony to support her assertion that she had previously been advised

of a different date. Moreover, Mother has not identified any meritorious

defense to the allegations contained in the termination motion. See Christy

A., 217 Ariz. at 305, ¶¶ 18-19 (considering the parent’s lack of a meritorious

defense in evaluating whether she had good cause for her failure to appear).

¶17 Under these circumstances, Mother has shown no abuse of

discretion. See, e.g., Bob H. v. Ariz. Dep’t of Econ. Sec., 225 Ariz. 279, 281-82,

¶¶ 8-9, 11-13 (App. 2010) (affirming both findings of lack of good cause

where father reported he was misinformed regarding the time of the

hearing and had just finished driving 1100 miles, and where mother argued

she had to arrange her own transportation and was only thirty minutes

late); Adrian E., 215 Ariz. at 101-02, ¶ 19 (same where parent testified he lost

the notice and could not recall the dates set for trial); Christy A., 217 Ariz. at

305, ¶¶ 18-19 (same where DCS caseworker disputed a parent’s claim that

she had advised the parent the trial had been continued and the parent had

no meritorious defense).

III. Termination of Mother’s Parental Rights Is in the Children’s Best

Interests.

¶18 Mother argues the juvenile court erred by failing to make any

factual findings to support its conclusion that severance was in the

Children’s best interests. See Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207

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MARIANNE N. v. DCS, et al.

Opinion of the Court

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. v. Ariz. Dep’t of Econ.

Sec., 196 Ariz. 246, 249, ¶ 12 (2000)); see also Ariz. R.P. Juv. Ct. 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). This

argument is not supported by the record.

¶19 Although the juvenile court did not announce its factual

findings on the record at the conclusion of the termination hearing, it later

issued written findings of fact and conclusions of law. Within that

document, the court found “[t]ermination of parental rights would free the

children for adoption with a family who would be able to provide them

with security and stability in their lives . . . [and] further the plan of

adoption.” These findings are sufficient to support the best interests

determination. See Mary Lou C., 207 Ariz. at 50, ¶ 19 (holding evidence “that

the child is adoptable . . . [and] in appropriate foster care/adoption

placement” is sufficient to support a best interests finding in a termination

order); Maricopa Cty. Juv. Action No. JS-501904, 180 Ariz. 348, 352 (App.

1994) (finding a child benefits from severance if it would free the child for

an adoption or if the child “would benefit psychologically from the stability

an adoption would provide”). Accordingly, Mother has shown no error.

CONCLUSION

¶20 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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