Opinion
2 CA-JV 2021-0022
07-20-2021
Clint A., Appellant, v. Department of Child Safety and C.A., Appellees.
Sarah Michele Martin, Tucson Counsel for Appellant. Mark Brnovich, Arizona Attorney General By Autumn Spritzer, Assistant Attorney General, Tucson Counsel for Appellee Department of Child Safety.
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pima County No. JD20190330, The Honorable Ken Sanders, Judge Pro Tempore
Sarah Michele Martin, Tucson Counsel for Appellant.
Mark Brnovich, Arizona Attorney General By Autumn Spritzer, Assistant Attorney General, Tucson Counsel for Appellee Department of Child Safety.
Presiding Judge Eppich authored the decision of the Court, in which Judge Brearcliffe and Vice Chief Judge Staring concurred.
MEMORANDUM DECISION
EPPICH, PRESIDING JUDGE.
¶1 Clint A. appeals the juvenile court's January 2021 order, and its February 2021 denial of his motion to set aside that order, terminating his parental rights to his son, C.A., born in September 2017, based on length of time in court-ordered care. See A.R.S. § 8-533(B)(8)(a), (c). He argues that A.R.S. § 8-863(C) and Rule 66(D)(2), Ariz. R. P. Juv. Ct., which allow the court to treat a parent's failure to appear for a termination hearing without good cause as a waiver of legal rights and an admission to the allegations in the motion to terminate, are unconstitutional because they violate due process rights. He also contends that the court erred in denying his motion to set aside. For the following reasons, we affirm.
The juvenile court also terminated the parental rights of C.A.'s mother, Lisa L. She is not a party to this appeal.
Factual and Procedural Background
¶2 We view the evidence in the light most favorable to affirming the juvenile court's orders. See Christina G. v. Ariz. Dep't of Econ. Sec., 227 Ariz. 231, ¶ 13 (App. 2011) (termination order); Ezell v. Quon, 224 Ariz. 532, ¶ 2 (App. 2010) (denial of motion to set aside). In June 2019, C.A. was taken into custody after the Department of Child Safety (DCS) received reports that Clint and C.A.'s paternal grandmother had used methamphetamine in C.A.'s presence, that others used drugs in the home, and that C.A. had access to drugs and paraphernalia in the home. DCS filed a dependency petition, alleging that C.A. was dependent as to Clint because he had "failed to maintain a normal parental relationship with the child" and C.A. was "at risk for neglect" in Clint's care. C.A. subsequently tested positive for methamphetamine in a hair test, indicating he had "repeated and consistent exposure" to the drug.
¶3 In September 2019, the juvenile court adjudicated C.A. dependent, finding by a preponderance of the evidence that C.A. was "clearly at risk of neglect in [Clint's] care." DCS attempted to effectuate the case plan goal of family reunification by offering services such as random drug testing, supervised visitation, parenting classes, general case management, and child and family team meetings. Other than supervised visitation, Clint failed to comply with the case plan, and, in September 2020, he stopped participating in visits with C.A.
¶4 That same month, the juvenile court changed the case plan from family reunification to severance and adoption, noting Clint had not "engaged in any services or given the court any reason to not proceed to termination and adopt[ion]." Pursuant to the court's order, see A.R.S. § 8-862(D), DCS filed a motion to terminate the parent-child relationship on the grounds of nine and fifteen months in court-ordered care, see § 8-533(B)(8)(a), (c). DCS also filed a notice, informing Clint that his failure to appear at hearings could result in the court finding he had waived his legal rights and admitted the grounds against him and proceeding in his absence. See Ariz. R. P. Juv. Ct. 64(C). At the initial severance hearing, the court repeated that admonition, and Clint indicated that he had no questions.
¶5 On the first day of the contested severance hearing in December 2020, Clint appeared and consented to proceed telephonically. The juvenile court admitted exhibits but heard no testimony that day. At a dependency review hearing on January 12, 2021, Clint informed the court that he had recently tested positive for COVID-19. At that time, the court again found Clint had "never engaged in services" and "remains non-compliant." It affirmed the date for the second day of the contested severance hearing and again notified Clint that "[f]ailure to appear for the Contested Severance hearings without good cause will result in the proceedings going forward in his absence and the Court will rule on the motion for termination based upon the evidence presented."
¶6 On January 21, 2021, the second day of the contested severance hearing, Clint failed to appear. Clint's attorney stated that Clint had been "pretty sick" the week prior. After taking a short recess to confirm that Clint had not tried to call in, the juvenile court proceeded in his absence, finding there was "no known good cause for his failure to appear" and he had "been properly advised of the consequences of failing to appear." After hearing evidence and argument, the court found DCS had proven the grounds of nine months and fifteen months in court-ordered care by clear and convincing evidence and termination was in C.A.'s best interests by a preponderance of the evidence. The court thus granted the motion to terminate the parent-child relationship.
¶7 Approximately two weeks later, Clint filed a motion to set aside pursuant to Rule 46(E), Ariz. R. P. Juv. Ct., and Rule 60(b), Ariz. R. Civ. P. Citing Rule 60(b)(1) and (6), he requested that the juvenile court "find there was good cause for his absence on January 21, 2021, and he did not voluntarily waive his right to a trial." He attached a report showing he had tested positive for COVID-19 on January 11, 2021, and he further reasoned that he did not "believe that DCS c[ould] prove the alleged grounds by clear and convincing evidence." In February 2021, the court denied the motion, finding Clint had "failed to set forth good cause for his failure to maintain contact with his attorney, including his failure to notify his attorney that he was purportedly too ill to attend his ongoing termination trial." In addition, the court determined that Clint had failed to present any evidence of a meritorious defense, noting that Clint's "beliefs" were insufficient. In March 2021, Clint filed a motion for a delayed appeal from both the termination order and the denial of his motion to set aside. The court granted the motion, and this appeal followed.
Due Process Rights
¶8 Clint contends that § 8-863(C) and Rule 66(D)(2) are "facially unconstitutional because they violate the due process and liberty rights" granted by the Fourteenth Amendment of the United States Constitution and article II, § 4 of the Arizona Constitution. Section 8-863(C) provides:
Clint seems to refer to § 8-863(C) and Rule 66(D)(2) interchangeably with A.R.S. § 8-537(C) and Rule 64(C). Although substantively similar, the statutes differ insofar as § 8-863 governs motion-initiated terminations, while § 8-537(C) applies to petition-initiated terminations. See Marianne N. v. Dep't of Child Safety, 243 Ariz. 53, ¶¶ 15, 26-30 (2017). Rule 64(C) provides notice requirements in termination proceedings, whether initiated by motion or petition, and mentions the consequences of a parent's failure to appear for certain hearings. See id. ¶ 16. Rule 66(D)(2) again discusses the consequences of failing to appear but specifically in the context of a termination hearing. Because this was a motion-initiated termination and Clint failed to appear for the contested termination hearing, we focus our analysis on § 8-863(C) and Rule 66(D)(2), as we assume Clint intended to do.
If a parent does not appear at the hearing, the court, after determining that the parent has been served . . ., 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.
In relevant part, Rule 66(D)(2) similarly states:
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 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.
¶9 As the state points out, however, Clint failed to raise this argument below. "Generally, failure to raise an argument in the juvenile court waives the issue on appeal." Logan B. v. Dep't of Child Safety, 244 Ariz. 532, ¶ 9 (App. 2018); see also Trantor v. Fredrikson, 179 Ariz. 299, 300 (1994) ("[A]bsent extraordinary circumstances, errors not raised in the trial court cannot be raised on appeal."). But waiver is discretionary, Logan B., 244 Ariz. 532, ¶ 9, and we have applied fundamental-error review to an argument first asserted on appeal by a parent challenging the termination of her parental rights, see Monica C. v. Ariz. Dep't of Econ. Sec., 211 Ariz. 89, ¶¶ 2, 22 (App. 2005). Accordingly, we do the same here.
¶10 To establish fundamental error, the complaining party "must show that the error complained of goes to the foundation of his case, takes away a right that is essential to his defense, [or] is of such magnitude that he could not have received a fair trial." Id. ¶ 24 (quoting State v. Henderson, 210 Ariz. 561, ¶ 24 (2005)); see State v. Escalante, 245 Ariz. 135, ¶ 21 (2018). The first two prongs also require a separate showing of prejudice, which involves a fact-intensive inquiry. Escalante, 245 Ariz. 135, ¶ 21. "[T]o prove prejudice, [the complaining party] 'must show that a reasonable [factfinder] could have reached a different result.'" Brenda D. v. Dep't of Child Safety, 243 Ariz. 437, ¶ 38 (2018) (quoting State v. Dickinson, 233 Ariz. 527, ¶ 13 (App. 2013)).
¶11 Clint asserts, "[T]he juvenile court's ruling that [he had] waived his legal rights and was deemed to have admitted the allegations in the petition by his failure to appear . . . is fundamental error which goes to the very foundation of his case." He contends that parents are entitled to "fundamental fairness" in severance proceedings but § 8-863(C) and Rule 66(D)(2) allow the court to "transform" a termination hearing into a "default judgment hearing." Clint points out that when a party seeks a civil default judgment, "there are additional statutory requirements such as a written application, notice, and proof of service." See Ariz. R. Civ. P. 55(a). He additionally argues that § 8-863(C) and Rule 66(D)(2) "are at odds" with the requirement that DCS must present clear and convincing evidence supporting the grounds for termination. See A.R.S. § 8-537(B).
¶12 "Parents possess a fundamental liberty interest in the care, custody, and management of their children." Kent K. v. Bobby M., 210 Ariz. 279, ¶ 24 (2005). However, "parental rights are not absolute." Id. A juvenile court may terminate parental rights, "so long as the parents whose rights are to be severed are provided with 'fundamentally fair procedures' that satisfy due process requirements." Id. (quoting Santosky v. Kramer, 455 U.S. 745, 754 (1982)). "In termination proceedings, '[d]ue process requires notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and to afford them an opportunity to present their objections.'" Monica C., 211 Ariz. 89, ¶ 16 (quoting In re Maricopa Cnty. Juv. Action No. JS-501904 , 180 Ariz. 348, 355 (App. 1994)); see also Trisha A. v. Dep't of Child Safety, 247 Ariz. 84, ¶ 25 (2019) (when evaluating fundamental fairness, courts must balance parent's interest, risk of erroneous deprivation of parent's interest, and state's interest).
¶13 This court has previously compared the procedure of finding a parent has waived his or her legal rights and is deemed to have admitted the termination allegations after failing to appear at a hearing without good cause-as discussed in § 8-863(C) and Rule 66(D)(2)-to a civil default proceeding. See, e.g., Manuel M. v. Ariz. Dep't of Econ. Sec., 218 Ariz. 205, ¶¶ 30-31 (App. 2008); Christy A. v. Ariz. Dep't of Econ. Sec., 217 Ariz. 299, ¶ 16 (App. 2007). And our supreme court recognized that the legislature added § 8-863(C) in response to a concern that "the juvenile court lacked authority to sever parental rights by default in the absence of a court rule or statute granting that authority." Marianne N. v. Dep't of Child Safety, 243 Ariz. 53, ¶ 23 (2017) (quoting S. Fact Sheet for S.B. 1109, 44th Leg., 1st Reg. Sess. (Ariz. Apr. 30, 1999)). The court explained that the goal of this so-called "default" procedure was to "provide[] a strong incentive for attendance and prevent[] delay in the resolution of the child's status." Id. ¶ 29; see also Trisha A., 247 Ariz. 84, ¶ 30 (describing child's need for timely permanency as "important interest").
¶14 In addition, Arizona courts have consistently concluded that the civil default procedure, as discussed in Rule 55(a), does not violate due process, provided the party against whom judgment is entered receives proper notice. See, e.g., McClintock v. Serv-Us-Bakers, 103 Ariz. 72, 74 (1968); Carpenter v. Superior Court, 101 Ariz. 565, 572 (1966); Hanson v. Maryland Nat. Ins. Co., 5 Ariz.App. 122, 123 (1967). Notice is similarly required in the context of § 8-863(C) and Rule 66(D)(2). Rule 64(C) requires notice to parents that their absence at a hearing without good cause may result in the juvenile court finding they have waived their legal rights and are deemed to have admitted the termination allegations and that the court may proceed in their absence. A court can only proceed under § 8-863(C) and Rule 66(D)(2) if the parent had proper notice of these consequences of failing to appear. See Manuel M., 218 Ariz. 205, ¶ 20.
¶15 That said, additional protections and safeguards distinguish the application of § 8-863(C) and Rule 66(D)(2) from a civil default proceeding. First, even if the juvenile court finds a waiver of legal rights and the parent is deemed to have admitted the termination allegations, that admission "cannot, standing alone, support the termination of the parent's rights." Id. ¶ 26. The admission is limited to the "factual contentions contained in the motion," and "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." Id. ¶ 28. Put another way, "DCS must still prove, by clear and convincing evidence, the underlying statutory severance ground and, by a preponderance of the evidence, that severance is in the child's best interest." Trisha A., 247 Ariz. 84, ¶ 14; see § 8-537(B). Second, despite a parent's failure to appear at a termination hearing, the parent is still entitled to counsel, who can cross-examine the witnesses and present evidence as to the best interests of the child. Christy A., 217 Ariz. 299, ¶¶ 23-25; see also Manuel M., 218 Ariz. 205, ¶ 22 (counsel can try to persuade court against imposing some or all of consequences of failing to appear). The parent's interests are thus protected by the presence and participation of counsel. Christy A., 217 Ariz. 299, ¶ 25.
Although our supreme court has expressed due-process concerns with an "accelerated severance hearing" under Rule 64(C)-specifically, "an attorney's time to prepare a defense and the parent's opportunity to remedy parenting deficiencies"-those are presumably not present when a parent fails to appear for a scheduled termination hearing. Trisha A., 247 Ariz. 84, ¶¶ 28-29.
¶16 Because Clint asserts that § 8-863(C) and Rule 66(D)(2) are "facially unconstitutional," he must establish that under no circumstances could they be constitutional. See Lisa K. v. Ariz. Dep't of Econ. Sec., 230 Ariz. 173, ¶ 8 (App. 2012). But, in this case, Clint was afforded each of the safeguards discussed above. He was repeatedly warned that if he failed to appear for certain hearings-including the termination hearing-the juvenile court could find he had waived his legal rights and was deemed to have admitted the allegations in the motion. When Clint failed to appear for the second day of the contested termination hearing, his counsel spoke on his behalf, reporting that he had been "pretty sick" the week prior and had "been present at all of the previous hearings." After finding Clint had been properly admonished, the court heard testimony from the ongoing case manager, whom Clint's counsel cross-examined. Clint's counsel was also given the opportunity to present witnesses, evidence, and argument. Although the court deemed Clint's absence to be "an admission to the allegations contained in the motion for termination," it nonetheless found DCS had proven the allegations "based upon his admission as well as the exhibits . . . and the testimony of . . . the assigned case manager." We are therefore unconvinced that Clint was not afforded fundamentally fair procedures that satisfy due process, such that § 8-863(C) and Rule 66(D)(2) could never be constitutional. See Kent K., 210 Ariz. 279, ¶ 24.
¶17 Even assuming fundamental error-specifically, error that went to the foundation of his case-occurred, however, Clint has made no showing of prejudice. See Escalante, 245 Ariz. 135, ¶ 21; Monica C., 211 Ariz. 89, ¶ 25. For example, Clint has not established that "the evidence was insufficient to establish the grounds for severance or the juvenile court's finding of [C.A.]'s best interests" or that he "would have presented particular testimony or other additional evidence to challenge [DCS's] evidence." Brenda D., 243 Ariz. 437, ¶ 39. Because Clint has presented no evidence that a reasonable fact-finder could have reached a different result, he has not met his burden of establishing fundamental, prejudicial error. See id. ¶ 38; see also Monica C., 211 Ariz. 89, ¶ 26.
Motion to Set Aside
¶18 Clint also contends the juvenile court erred by denying his motion to set aside. Based on his attendance at previous hearings, "the extraordinary circumstances caused by the pandemic," and his positive COVID-19 test, Clint argues "it is clear that his failure to appear was inadvertent, a mistake, and/or excusable neglect" under Rule 60(b)(1), Ariz. R. Civ. P. He therefore reasons that he was "at the very least" entitled to an evidentiary hearing. We review the denial of a motion to set aside for an abuse of discretion. Trisha A., 247 Ariz. 84, ¶ 27.
Clint does not reassert his claim under Rule 60(b)(6). We therefore do not address it. See Polanco v. Indus. Comm'n, 214 Ariz. 489, n.2 (App. 2007) (finding issue waived on appeal because party failed to develop it).
¶19 In a termination proceeding, a party may file a motion to set aside pursuant to Rule 46(E), Ariz. R. P. Juv. Ct., which must generally conform to the requirements of Rule 60(b), Ariz. R. Civ. P. The primary purpose of Rule 60(b) is "to allow relief from judgments that, although perhaps legally faultless, are unjust because of extraordinary circumstances that cannot be remedied by legal review." Francine C. v. Dep't of Child Safety, 249 Ariz. 289, ¶ 23 (App. 2020) (quoting Hyman v. Arden-Mayfair, Inc., 150 Ariz. 444, 446-47 (App. 1986)). Rule 60(b)(1) provides that the juvenile court may "[o]n motion and just terms . . . relieve a party or its legal representative from a final judgment, order, or proceeding for . . . mistake, inadvertence, surprise, or excusable neglect." "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., 217 Ariz. 299, ¶ 16 (quoting Ulibarri v. Gerstenberger, 178 Ariz. 151, 163 (App. 1993)). When a Rule 60(b)(1) motion is based on a parent's nonappearance at a hearing, the parent "must provide 'good cause' for their nonappearance and prove a meritorious defense." Trisha A., 247 Ariz. 84, ¶ 22.
Rule 60(b) was previously numbered Rule 60(c), but the two versions are substantively identical. Ariz. Sup. Ct. Order R-16-0010 (Sept. 2, 2016). We refer to Rule 60(b) throughout this decision.
¶20 As stated above, the juvenile court concluded Clint had failed to establish good cause for his nonappearance at the termination hearing. It pointed out that he had failed to inform his attorney that he was too sick to attend. Admittedly, serious illness that renders a party unable to intelligently discuss a case may constitute excusable neglect. See Swisshelm Gold Silver Co. v. Farwell, 59 Ariz. 162, 167-68 (1942); see also Walker v. Kendig, 107 Ariz. 510, 512 (1971) (lesser non-sudden illness or disability must be evaluated in ad hoc manner and left to sound judicial discretion of trial court). Although Clint provided proof of his positive COVID-19 test and asserted he was "extremely sick," he failed to explain why he could not call into the hearing, if only to report his illness, or otherwise communicate with his attorney beforehand regarding the situation. We are not convinced Clint acted as a reasonably prudent person in similar circumstances. See Christy A., 217 Ariz. 299, ¶ 16.
¶21 But even assuming Clint's illness constituted good cause, the juvenile court also determined that he had failed to establish a meritorious defense. To prove a meritorious defense, a party need only show a substantial defense that is not "facially unmeritorious." Trisha A., 247 Ariz. 84, ¶ 26 (quoting Emcasco Ins. v. Sambrick, 834 F.2d 71, 74 (3d Cir. 1987)). As the court found, Clint's bald assertion that he did not "believe" DCS could prove the alleged grounds is insufficient. Clint does not challenge that finding on appeal or otherwise develop any argument on this issue. See Ariz. R. Civ. App. P. 13(a)(7)(A) (argument in opening brief shall contain "supporting reasons for each contention" and "citations of legal authorities and appropriate references to the portions of the record"); Ariz. R. P. Juv. Ct. 106(A) (with limited exceptions not relevant here, Rule 13, Ariz. R. Civ. App. P., applies in appeals from juvenile court); cf. State v. Carver, 160 Ariz. 167, 175 (1989) ("Failure to argue a claim usually constitutes abandonment and waiver of that claim."). The court therefore did not abuse its discretion by denying Clint's motion to set aside the termination order. See Trisha A, 247 Ariz. 84, ¶ 27.
Clint also argues that the denial of his motion to set aside was "inequitable," again comparing the underlying termination to a civil default and arguing it "significantly lessened [DCS's] burden in terminating his parental rights." However, he did not raise this argument below as part of his motion, nor does he argue on appeal that any such error was fundamental. We therefore do not address it. See Logan B., 244 Ariz. 532, ¶ 9; see also State v. Moreno-Medrano, 218 Ariz. 349, ¶ 17 (App. 2008) (even if fundamental-error review applies, failure to argue that error is fundamental constitutes waiver of argument).
Disposition
¶22 For the foregoing reasons, we affirm the juvenile court's order terminating Clint's parental rights to C.A. and its denial of Clint's motion to set aside.