Opinion
No. 1 CA-JV 11-0182
04-26-2012
JENNIFER O., Appellant, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, KAYLA S., Appellees.
Thomas C. Horne, Arizona Attorney General By Michael Valenzuela, Assistant Attorney General Attorneys for Appellee Arizona Department of Economic Security Law Offices of Heather C. Wellborn, PC By Heather C. Wellborn Attorneys for Appellant
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication - 103(G) Ariz.R.P. Juv. Ct., Rule 28, ARCAP)
Appeal from the Superior Court in Mohave County
Cause No. S8015JD201000041
The Honorable Richard Weiss, Judge
AFFIRMED
Thomas C. Horne, Arizona Attorney General
By Michael Valenzuela, Assistant Attorney General
Attorneys for Appellee Arizona Department of Economic Security
Phoenix
Law Offices of Heather C. Wellborn, PC
By Heather C. Wellborn
Attorneys for Appellant
Lake Havasu City OROZCO, Judge
¶1 Jennifer O. (Mother) appeals the juvenile court's order terminating her parent-child relationship with Kayla S. For the following reasons, we affirm the court's order.
William S. (Father) also had his parent-child relationship with Kayla S. terminated, but he did not contest the severance and is not a party to this appeal.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 Mother and Father are the biological parents of Kayla S. and Brian S. In 2004, Arizona Department of Economic Security (ADES) removed the children from the parents and placed them with their maternal grandparents under a guardianship.
¶3 On July 14, 2010, ADES received a report alleging that Brian overdosed on methamphetamines in the grandparents' home. Thereafter, ADES discovered that Brian had been abusing drugs in the grandparents' home and Mother was living there intermittently. The grandparents admitted that Mother was often under the influence of methamphetamines, and Brian disclosed that he and Kayla had no supervision. ADES took the children into custody the following day.
¶4 ADES filed a dependency petition, alleging Kayla and Brian were dependent due to their parents' and grandparents' neglect. The juvenile court found the children dependent.
¶5 A report and review hearing was held on October 6, 2010, at which Mother did not appear. Mother's counsel noted that she had not been in contact with Mother during the dependency. Twenty-two minutes after the hearing ended, Mother finally appeared and court reconvened. The court admonished Mother for her failure to timely appear, and ADES provided her with a Form 1.
Form 1 states in part:
You are required to attend all court hearings. If you cannot attend a court hearing, you must prove to the Court that you had good cause for not attending. If you fail to attend the Pre-trial Conference, Settlement Conference, or Dependency Adjudication Hearing without good cause, the Court may determine that you have waived your legal rights and admitted the allegations in the dependency petition.Ariz. R.P. Juv. Ct. Form 1.
¶6 The juvenile court held a permanency planning hearing on February 9, 2011. Mother again failed to appear. Mother's counsel stated that she had not had contact with Mother and asked to withdraw from the case. The court granted counsel's request.
¶7 On May 18, 2011, a supplemental permanency planning hearing was held and Mother again did not appear. In Mother's absence, the court approved changing Kayla's case plan from family reunification to severance and adoption. In the minute entry, the court admonished the parents that their failure to appear at the next hearing would be deemed an admission to the allegations in the petition and would result in a waiver of their rights to further contest the proceedings.
The court approved alternative planned permanent living arrangement as Brian's case plan. This appeal does not involve Mother's relationship with Brian.
¶8 Consistent with the change in case plan, ADES filed a motion to terminate Mother's parental rights to Kayla on the grounds of abandonment pursuant to Arizona Revised Statutes (A.R.S.) section 8-533.B.1 (Supp. 2011), chronic substance abuse under § 8-533.B.3, and out-of-home placement for a cumulative total period of nine months or longer pursuant to § 8-533.B.8(a).
¶9 The initial termination hearing was held on June 15, 2011. Mother did not appear, but ADES noted that Mother had been proceeding pro per and had not been served. Consequently, the court continued the hearing until July 13, 2011. Mother subsequently accepted service of the severance motion, notice of initial termination hearing, notice of continued termination hearing, and notice of publication hearing.
The notice of initial termination hearing warned:
[Y]our failure to personally appear in court at the initial hearing, pretrial conference, status conference or termination
adjudication, without good cause shown, may result in a finding that you have waived your legal rights and have admitted the allegations in the Motion. In addition, if you fail to appear, without good cause, the hearing may go forward in your absence and may result in termination of your parental rights based upon the record and the evidence presented to the court.
¶10 The court permitted Mother to appear telephonically at the continued initial termination hearing on July 13, 2011. However, the court directed Mother to appear in person for all future hearings and threatened that if she did not, the court could find that she had waived her rights and allow the State to proceed in her absence. During that hearing, Mother requested an attorney, and her former counsel was reappointed. The court continued the hearing until August 10, 2011.
¶11 Mother again failed to appear in person at the August 10 hearing. ADES requested the court find Mother waived her rights and the termination hearing should proceed in her absence. Mother's counsel requested the court not find Mother waived her rights because she believed Mother had undergone surgery the previous day and was still in pain and had tried to call the court to request she be allowed to appear telephonically. Despite ADES's objection to a continuance, the court noted Mother's failure to appear in person and continued the hearing until the following day to allow Mother "one opportunity to cure her defect." The court stated that if Mother failed to appear in person, the court would find she waived her rights. The court noted that it was not in a position at that time to make a factual finding as to whether the reasons Mother provided for her failure to appear in person were sufficient.
¶12 Mother appeared in person at the continued hearing on August 11, 2011. However, because Mother had failed to appear in person on August 10, ADES made an oral motion to deem Mother's failure to appear in person a waiver of her rights. The court granted the oral motion. The court then allowed Mother an opportunity to establish good cause to set aside the waiver by explaining why she was unable to appear in person at the August 10 hearing.
¶13 Mother testified that she had undergone a surgical procedure on August 9 and on August 10 was still "just a little groggy from the anesthesia [and] pain pills" and "was a little disoriented." Despite her surgery, Mother testified it was her intention to appear in court and the reason she did not appear in person was because her boyfriend's car ran out of gas in the front yard. She claimed that the vehicle's gas gauge was broken and that in her neighborhood "your gas disappears." Mother testified that she was able to refuel the vehicle around 3:15 p.m., but she claimed that by that time she had already received a message from her lawyer that the hearing had ended and was continued until the next day. Mother's counsel confirmed that she had called Mother but said the calls were placed at 3:33 p.m. and 3:35 p.m.
¶14 When the court informed Mother that the proceedings finished at 3:38 p.m., which would have given Mother approximately twenty-three minutes to drive to the courthouse, Mother conceded that she probably could have made it to court before the hearing ended. The court reasoned that if Mother had fuel by 3:15 p.m., she could have arrived at the courthouse by the time her lawyer made the first call at 3:33 p.m., and, regardless, a reasonable person would have preplanned to ensure gas was in the vehicle. The court concluded that Mother "was attempting to manipulate the system" and "attempting to avoid an ordered appearance." The court found Mother failed to show good cause for not appearing at the August 10 hearing and consequently confirmed the waiver against her for failure to appear in person.
¶15 Thereafter, the severance hearing continued. The ADES case manager testified regarding the history of the case, including Mother's substance abuse and her failure to maintain contact with Kayla. The case manager opined that severance and adoption would be in Kayla's best interest and noted that an adoptive home that would meet Kayla's needs had been identified. During cross-examination, the case manager mentioned that Brian had voiced an objection to Kayla's adoption "because he wanted to be the individual to care for Kayla." However, the case manager explained that adoption was what Kayla wanted and would provide her with a stable environment. Furthermore, Kayla's placement was willing to facilitate sibling visits.
Although Mother was deemed to have admitted the allegations in the petition, Mother and her counsel remained present for the remainder of the hearing and Mother's counsel cross-examined ADES's witness.
¶16 At the conclusion of the hearing, the court confirmed that Mother waived her rights and deemed her nonappearance an admission to the allegations in the severance petition. The court also found that ADES had proven by clear and convincing evidence all grounds alleged in its severance motion and by a preponderance of the evidence that severance and adoption was in Kayla's best interest. On August 26, 2011, the court filed its order terminating Mother's parental rights.
¶17 Mother timely appealed. We have jurisdiction under A.R.S. §§ 8-235.A (2007), 12-120.21.A.1 (2003) and -2101.A.1 (Supp. 2011).
DISCUSSION
Good Cause
¶18 Mother first argues on appeal that the juvenile court abused its discretion in not finding good cause for her nonappearance at the initial termination hearing and finding she admitted the allegations in the motion, in spite of the fact that she appeared at the continued hearing the following day. The juvenile court's determination of what constitutes good cause for failure to appear is discretionary and will not be set aside unless the court's exercise of its 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) (quoting Lashonda M. v. Ariz. Dep't of Econ. Sec., 210 Ariz. 77, 83, ¶ 19, 107 P.3d 923, 929 (App. 2005)).
¶19 Mother claims she established good cause because she testified that she had had a surgical procedure performed on her the day before the hearing and was "a little groggy from the anesthesia" and "a little disoriented." However, when asked why she was unable to appear at the hearing the previous day, Mother stated that her boyfriend's car ran out of gas when she was attempting to come to court. She testified that gas disappears from vehicles where she lives and the gas gauge in her boyfriend's vehicle was broken. As Mother tried to establish a timeline during her testimony, she conceded that she probably could have refueled and made it to court before the proceedings ended.
¶20 After listening to Mother's testimony, the court questioned Mother's story and concluded that Mother "was attempting to manipulate the system" and "attempting to avoid an ordered appearance." The court found no good cause existed for Mother's nonappearance the day prior and confirmed she waived her rights. Evaluating the credibility of witnesses is within the sound discretion of the juvenile court; therefore, we cannot find the court abused its discretion in disbelieving Mother's testimony. See Christy A. v. Ariz. Dep't of Econ. Sec., 217 Ariz. 299, 305, ¶ 19, 173 P.3d 463, 469 (App. 2007). We also find it was not an abuse of discretion for the court to conclude that a reasonable person would have planned to have gas in the vehicle when she knew she had an important hearing to attend, and, therefore, Mother failed to establish good cause.
¶21 Furthermore, Mother argues the court erred in finding she waived her rights even though she appeared at the continued hearing on August 11. Rule 65.C.6.c of the Arizona Rules of Procedure for the Juvenile Court, however, permits the court to proceed with the termination of parental rights if the court finds that the parent failed to show good cause for not appearing in person at the initial termination hearing, and the parent had notice of the hearing, had been properly served and had been previously admonished regarding the consequences of failing to appear.
¶22 The record shows Mother had notice of the August 10 hearing, had been properly served, and had been admonished numerous times during the course of this case. The court did not proceed in Mother's absence on August 10 because it found it lacked sufficient information at that time to make a factual determination as to whether Mother had good cause for not appearing. Mother's appearance at the continued hearing on August 11 did not substitute for her nonappearance on August 10 — it was merely her opportunity to establish good cause. On this record, we find no abuse of discretion by the juvenile court in finding that Mother waived her rights in these proceedings.
Best interest
¶23 Mother next argues that the juvenile court erred in finding termination of Mother's parental rights is in Kayla's best interest because Kayla would be separated from her brother Brian, who objected to Kayla's adoption. Whether termination of parental rights is in the child's best interest is a factual question for the juvenile court's determination. Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 282, ¶ 13, 53 P.3d 203, 207 (App. 2002). "We will not disturb the juvenile court's order severing parental rights unless its factual findings are clearly erroneous, that is, unless there is no reasonable evidence to support them." Audra T. v. Ariz. Dep't of Econ. Sec., 194 Ariz. 376, 377, ¶ 2, 982 P.2d 1290, 1291 (App. 1998).
In her opening brief, Mother asserts in a heading that ADES "did not establish through clear and convincing evidence sufficient grounds for termination of the mother's parental rights pursuant to A.R.S. § 8-533(B) and through preponderance of evidence that termination is in the child's best interest." However, the argument that follows focuses only on the child's best interest inquiry and does not contest the statutory grounds for termination. We do not address Mother's assertion regarding statutory grounds for termination because she does not set forth her reasoning as to how the juvenile court erred and fails to otherwise support or elaborate on her argument. See Brown v. U.S. Fid. and Guar. Co., 194 Ariz. 85, 93, ¶ 50, 977 P.2d 807, 815 (App. 1998); ARCAP 13(a)6.
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¶24 Termination of parental rights requires the juvenile court to find by a preponderance of the evidence that termination is in the best interest of the child. Kent K. v. Bobby M., 210 Ariz. 279, 288, ¶ 41, 110 P.3d 1013, 1022 (2005). ADES can establish that termination is in the child's best interest by showing that the child would derive an affirmative benefit from termination or incur a detriment by continuing the relationship. Ariz. Dep't of Econ. Sec. v. Oscar O., 209 Ariz. 332, 334, ¶ 6, 100 P.3d 943, 945 (App. 2004). The best interest requirement can be met if ADES proves that a current adoptive plan exists for the child or even that she is adoptable. Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, 50, ¶ 19, 83 P.3d 43, 50 (App. 2004).
¶25 The court found that ADES had proven by a preponderance of the evidence that severance is in Kayla's best interest because it would provide Kayla "with permanency in a safe, stable, and drug-free home with parents who are present and actively involved in her life." The court also found that Kayla agreed to adoption and her current placement was willing to adopt.
¶26 The testimony of the ADES case manager supports the juvenile court's findings. She opined that severance and adoption is in Kayla's best interest and noted that an adoptive home had been identified and Kayla wished to be adopted. The case manager also expressed concern that if parental rights were not terminated, Kayla would go back to a home that was not providing structure or meeting her basic needs. We therefore conclude that reasonable evidence supports the court's finding that termination of Mother's parental rights is in Kayla's best interest.
¶27 Although reasonable evidence supports the court's best interest determination, Mother argues the court erred because Brian objected to Kayla's adoption. Under A.R.S. § 8-514.B (2007), ADES is required to place a child in the least restrictive type of placement available that is consistent with the child's needs, with preference given to grandparents or other members of the child's extended family. However, ADES is not required to rule out possible placements with biological relatives before considering other placements. Audra T., 194 Ariz. at 377, ¶ 5, 982 P.2d at 1291.
¶28 In any event, the case manager testified that the maternal grandparents had been the only relatives who were willing or able to care for the children in the past, but after their guardianship was terminated there were no other suitable relatives able to care for Kayla. Moreover, the case manager discussed the willingness of Kayla's placement to continue the sibling relationship and facilitate visits between Kayla and Brian. The court concluded that placement with a relative would not be in Kayla's best interest because no appropriate relatives had been identified and Kayla's placement with her adoptive family was the least restrictive placement consistent with her needs. Reasonable evidence supports the court's conclusion, and Brian's objection does not undermine the court's finding that severance is in Kayla's best interest.
¶29 Mother also contends the court erred in finding severance is in Kayla's best interest because the court only considered ADES's evidence. The record reveals, however, that the juvenile court not only considered ADES's evidence but also considered Mother's admission to the allegations in the petition, as permitted by A.R.S. § 8-537.C (2007).
¶30 Furthermore, although Mother did not testify at the hearing and did not present evidence, Mother's counsel was present and cross-examined ADES's witness. Mother's counsel's participation in the proceedings satisfied due process requirements. See Christy A., 217 Ariz. at 307, ¶ 28, 173 P.3d at 471 (holding that a parent deemed to have waived his or her right to contest the severance retains the right to have counsel present and participate). Accordingly, we find no error.
CONCLUSION
¶31 For the foregoing reasons, we affirm the juvenile court's order terminating Mother's parent-child relationship with Kayla S.
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PATRICIA A. OROZCO, Presiding Judge
CONCURRING:
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PHILIP HALL, Judge
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JOHN C. GEMMILL, Judge