Stacey M. v. Dcs
1 CA-JV 16-0027
| Ariz. Ct. App. | Jul 5, 2016Background
- Juvenile court terminated Stacey M.’s parental rights to three children under A.R.S. § 8-533(B)(8)(c) (child in out-of-home placement 15+ months).
- Stacey missed an initial termination hearing in August 2015 and a continued hearing in September 2015; the court found she failed to appear without good cause and waived rights under Rule 65(C)(6)(c).
- The November 2015 hearing proceeded with Stacey present and represented; counsel cross-examined the DCS case manager and Stacey contested service and attendance facts.
- DCS presented evidence of reunification services (psychological evaluation, counseling, drug testing, dependency treatment court, parent aide, visitation April 2014–June 2015) and showed Stacey’s noncompliance (multiple moves, missed parent-aide, positive meth tests).
- The juvenile court found DCS made diligent efforts, Stacey had been unable to remedy the circumstances keeping the children in out-of-home care, and there was a substantial likelihood she would not be capable of proper parental care in the near future; the appellate court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court violated due process by finding Stacey failed to appear without good cause | Stacey: she did not miss the August hearing (was waiting outside) and overslept for September due to work; thus no waiver | DCS: notice and admonitions were given; failure to appear can constitute waiver under Rule 65 and A.R.S. § 8-537(C) | Court: No due process violation; finding of failure to appear without good cause was not an abuse of discretion; waiver/admission was proper under Rule 65(C)(6)(c) |
| Whether proceeding after waiver constituted an improper “default” | Stacey: court effectively defaulted her and denied rights | DCS: court used waiver/admission procedure allowed by precedent and Rule 65 rather than a default | Court: Not a default; court appropriately treated nonappearance as waiver and allowed cross-examination at the November hearing |
| Whether DCS provided diligent, appropriate reunification services | Stacey: DCS failed to provide sufficient services and that failure prevented remedying conditions | DCS: Provided multiple services; visitation provided for ~14 months; some services ended due to Stacey’s noncompliance | Court: Substantial evidence supported that DCS made diligent efforts; services were not futile and DCS met its burden |
| Whether error in excluding Stacey’s testimony on best interests required reversal | Stacey: exclusion of her testimony on best interests was erroneous | DCS: Admitted error but argued it was harmless; Stacey failed to raise issue in reply brief | Court: Issue waived by Stacey for inadequate briefing; any error deemed harmless or forfeited |
Key Cases Cited
- Adrian E. v. Ariz. Dep’t of Econ. Sec., 215 Ariz. 96 (App. 2007) (standard for reviewing juvenile court’s exercise of discretion on failure-to-appear determinations)
- Christy A. v. Ariz. Dep’t of Econ. Sec., 217 Ariz. 299 (App. 2008) (courts should treat nonappearance as potential waiver rather than use “default” terminology)
- Lashonda M. v. Ariz. Dep’t of Econ. Sec., 210 Ariz. 77 (App. 2005) (appellate review looks to whether substantial evidence supports juvenile court findings)
- Christina G. v. Ariz. Dep’t of Econ. Sec., 227 Ariz. 231 (App. 2011) (DCS must prove termination grounds by clear and convincing evidence)
- Bennigno R. v. Ariz. Dep’t of Econ. Sec., 233 Ariz. 345 (App. 2013) (DCS is not required to provide futile reunification services)
- State v. Carver, 160 Ariz. 167 (App. 1989) (failure to adequately brief an argument results in waiver)