Brenda D. v. Department of Child Safety
242 Ariz. 150
| Ariz. Ct. App. | 2017Background
- Mother is biological parent of Z.D., a child with Down Syndrome; DCS filed for dependency (2014) and later moved to terminate parental rights (2015) on three statutory grounds.
- A two-day severance hearing was scheduled for June 15–16, 2016; Mother’s counsel informed the court Mother had severe back pain and the court required in-person appearance with medical documentation.
- On day two the hearing began without Mother; the court found no good cause for her absence, limited counsel to addressing the "weight" (not admissibility) of DCS evidence, and proceeded with DCS’s case.
- Mother arrived ~25–26 minutes after start, before DCS rested, sought to testify and be heard; the court denied her request and found she had "failed to appear," then terminated Mother’s parental rights.
- On appeal, the court found the superior court erred: tardy arrival (before close of evidence) does not equate to failure to appear warranting waiver; limiting counsel and denying Mother the right to testify violated due process.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether arriving ~26 minutes late equals "failure to appear" under A.R.S. § 8-863(C)/Rule 66(D)(2) | Mother: Late arrival before close of evidence is not a failure to appear and does not waive rights | DCS/Superior Ct.: Tardiness is no excuse; absence at scheduled start shows failure to appear and can waive rights | Court: Mere tardiness before close of evidence is not "failure to appear"; waiver may only be applied after the hearing closes without the parent |
| Whether court properly restricted counsel to "weight" of evidence (not admissibility) when parent was absent at start | Mother: Restricting counsel deprived effective assistance and the ability to contest evidence | DCS: Restriction appropriate given parent’s initial absence and prior admonitions | Court: Limitation was an abuse of discretion and denied effective participation of counsel (due process violation) |
| Whether denying Mother the right to testify based on tardiness violated due process | Mother: Denial of opportunity to testify prejudiced her and denied hearing | DCS: Mother waived rights by failing to appear at hearing start | Court: Denial was fundamental error; Mother arrived before close of evidence so exclusion violated due process |
| Whether the superior court's docket management justified rigid enforcement of punctuality | DCS: Court has discretion to manage docket and enforce punctuality | Mother: Court must remain flexible; trivial delay that causes no prejudice should be accommodated | Court: Trial courts have broad docket control but must be reasonable and flexible; here no prejudice shown and accommodation was required |
Key Cases Cited
- Carolina H. v. ADES, 232 Ariz. 569 (App.) (parents’ constitutional right to raise child and due process protections)
- Troxel v. Granville, 530 U.S. 57 (2000) (parental liberty interest)
- Manuel M. v. ADES, 218 Ariz. 205 (App.) (limitations on treating absence as admission; counsel’s role)
- Christy A. v. ADES, 217 Ariz. 299 (App.) (discusses consequences of failure to appear in termination proceedings)
- Marianne N. v. DCS, 240 Ariz. 470 (App.) (parent retains counsel-based rights even after alleged waiver)
- Monica C. v. Arizona Dept. of Economic Sec., 211 Ariz. 89 (App.) (fundamental error standard)