410 P.3d 419
Ariz.2018Background
- Z.D., born 2005 with Down Syndrome and special needs, was made dependent in 2015 and placed out of Brenda D.’s custody; DCS later filed a motion to terminate Brenda’s parental rights.
- The juvenile court scheduled a two-day termination adjudication hearing (June 15–16, 2016) and gave Brenda written and oral notice (Form 3) warning that failure to appear could be deemed a waiver and the hearing could proceed in her absence.
- Brenda missed the June 15 session (claimed back pain) and was ordered to provide medical documentation; she arrived late (after the hearing started) on June 16 without having shown good cause for the earlier absence or tardiness.
- At 1:50 p.m. on June 16 the juvenile court found Brenda had no good cause, that she waived her right to contest, and instructed her counsel to address only the weight (not admissibility) of the evidence; the court proceeded in her partial absence.
- DCS presented evidence; the court found statutory grounds and best interests satisfied and terminated Brenda’s parental rights. Brenda did not seek reconsideration or produce medical documentation.
- The court of appeals reversed, holding tardiness alone is not a “failure to appear” under A.R.S. § 8-863(C) and Ariz. R.P. Juv. Ct. 66(D)(2); the Arizona Supreme Court granted review.
Issues
| Issue | Plaintiff's Argument (Brenda) | Defendant's Argument (DCS) | Held |
|---|---|---|---|
| Whether arriving late (but before hearing ends) constitutes "failure to appear" under § 8-863(C) / Rule 66(D)(2) | Tardiness alone is not a failure to appear; waiver requires complete nonappearance before close of evidence | A parent who does not timely attend a duly-noticed hearing has "failed to appear" and a court may find waiver at the hearing's start | A parent who fails to timely appear for a duly-noticed termination adjudication hearing has “failed to appear” under § 8-863(C) and Rule 66(D)(2) |
| When the court may find waiver and proceed in parent’s absence | Waiver should be determined only at close of evidence; otherwise due process is impaired | Court may determine waiver at start of hearing after procedural prerequisites and proceed in absence | Court should find waiver (if warranted) at the start of the hearing before proceeding; if parent never appears, factual allegations are deemed admitted at close of evidence |
| Effect of a late appearance (after hearing starts) | Late arrival should negate a prior waiver; parent must be allowed to contest and retake testimony | Waiver applies to portions of hearing before arrival; arrival restores rights for remainder but does not require restart | Late arrival ends the waiver prospectively; the parent may testify and present evidence for remainder of hearing but cannot demand reopening of already completed evidence |
| Right to counsel and burden of proof when parent "fails to appear" | A tardy/absent parent should not be deprived of counsel’s full participation; the state must still meet its burden | Defense counsel may continue to participate; but admissions limit matters | Parent's right to counsel is preserved; counsel may fully participate (cross-examine, object, present witnesses). Even when factual allegations are deemed admitted, the State must still present sufficient evidence to prove statutory grounds and best interests by the required standard |
Key Cases Cited
- Santosky v. Kramer, 455 U.S. 745 (U.S. 1982) (due process requires clear and convincing proof before parental rights termination)
- Manuel M. v. Ariz. Dep’t of Econ. Sec., 218 Ariz. 205 (App. 2008) (parental nonappearance can constitute constructive waiver of rights; factual allegations may be deemed admitted but legal conclusions are not)
- Bob H. v. Ariz. Dep’t of Econ. Sec., 225 Ariz. 279 (App. 2010) (court violated due process by proceeding before parent’s counsel arrived)
- Christy A. v. Ariz. Dep’t of Econ. Sec., 217 Ariz. 299 (App. 2007) (parents have right to be present and to counsel in termination adjudication hearings)
- Marianne N. v. Dep’t of Child Safety, 243 Ariz. 53 (2017) (recognizes Rule 64(C) "go forward" language and relation to § 8-863(C))
- Bus. Realty of Ariz., Inc. v. Maricopa Cty., 181 Ariz. 551 (1995) (statutes should be construed to avoid constitutional issues)