BRENDA D., Appellant, v. DEPARTMENT OF CHILD SAFETY, Z.D., Appellees.
No. CV-17-0136-PR
Supreme Court of Arizona
February 9, 2018
243 Ariz. 437 | 410 P.3d 419
Appeal from the Superior Court in Maricopa County, The Honorable Susanna C. Pineda, Judge, No. JD21476, AFFIRMED. Opinion of the Court of Appeals, Division One, 242 Ariz. 150 (App. 2017), VACATED.
COUNSEL:
H. Clark Jones (argued), Law Office of H. Clark Jones, LLC, Mesa, Attorneys for Brenda D.
Mark Brnovich, Arizona Attorney General, Dominic E. Draye, Solicitor General, Paula S. Bickett, Chief Counsel, Civil Appeals Section, Amber E. Pershon (argued) and Toni M. Valadez, Assistant Attorneys General, Phoenix, Attorneys for Department of Child Safety
Thomas A. Vierling, Vierling Law Offices, Phoenix, Attorneys for Z.D.
VICE CHIEF JUSTICE PELANDER authored the opinion of the Court, in which CHIEF JUSTICE BALES, and JUSTICES BRUTINEL, GOULD, and LOPEZ joined. JUSTICE TIMMER, joined by JUSTICE BOLICK, filed an opinion dissenting in part and concurring in part.
¶1 After the Arizona Department of Child Safety (“DCS“) initiates proceedings to terminate parental rights by motion under
¶2 We hold that a parent who fails to timely appear for a duly-noticed termination adjudication hearing has “failed to appear” under
¶3 These waiver rules, however, do not apply to a parent‘s right to counsel at a termination adjudication hearing, a right that is unaffected by the parent‘s appearance or absence. A parent‘s counsel may fully participate in the hearing, including by contesting the motion‘s factual allegations. Finally, we hold that when a juvenile court finds that a pаrent waived his or her legal rights, the state must nevertheless satisfy its burden of proof by presenting sufficient evidence to establish an alleged ground for termination and for a finding that termination is in the child‘s best interests.
I.
¶4 Brenda D. is Z.D.‘s biological mother. Z.D. was born in 2005 with Down Syndrome and has permanent special needs. In July 2014, DCS took custody of Z.D. and filed a petition alleging that Z.D. was dependent due to Brenda‘s neglect. The juvenile court found Z.D. dependent in May 2015. The court ordered a case plan of family reunification. Over several months, DCS provided Brenda with various reunification and rehabilitative services, but Brenda‘s participation in those services was, at best, sporadic.
¶5 In October 2015, DCS filed a motion to terminate Brenda‘s parental rights. (DCS also filed a motion to terminate Z.D.‘s multiple alleged fathers’ parental rights, which are not at issue here.) As grounds for the severance, DCS alleged Brenda‘s history of substance abuse and Z.D.‘s out-of-home placement. See
¶6 In early November, the juvenile court held an initial termination hearing, which Brenda attended. At that hearing the court scheduled the termination adjudication hearing for two days beginning on June 15, 2016,
You are required to attend all termination 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 Initial Termination Hearing, Termination Pretrial Conference, or Termination Adjudication Hearing without good cause, the Court may determine that you have waived your legal rights, and admitted the allegations in the motion/petition for termination. The hearings may go forward in yоur absence, and the Court may terminate your parental rights to your child based on the record and evidence presented.
¶7 Form 3 also stated that the termination adjudication hearing was scheduled for June 15 and 16 at 1:30 p.m. Brenda signed the form, which the juvenile court also read in open court. See
¶8 Nevertheless, Brenda did not appear on June 15, the first scheduled day of the termination adjudication hearing. Instead, she called the court and claimed that she was experiencing severe back pain. The court continued the start of the hearing until the next day and ordered Brenda to appear in person with medical documentation of her back pain.
¶9 The following day, however, Brenda again failed to appeаr at the 1:30 p.m. scheduled start time. She called the court stating that she was running ten minutes late. But when the court began the hearing at 1:50 p.m., Brenda was still absent. After noting that the State‘s counsel, the DCS case manager, the guardian ad litem, and Brenda‘s counsel were all present, the juvenile court found that Brenda did not have “good cause for her failure to appear” and that she “waived her right to contest.” The court also instructed Brenda‘s counsel that he only had “an opportunity to address . . . the weight of the evidence, not the admissibility of the evidence” during the hearing. Brenda‘s counsel did not object.
¶10 The court proceeded with the termination adjudication hearing. After the State questioned the DCS case manager, the guardian ad litem elicited testimony from that witness supporting termination of Brenda‘s parental rights. Brenda‘s counsel, in turn, cross-examined the case manager about Brenda‘s history оf substance abuse, participation in rehabilitative services, and behavior during supervised visitations with Z.D.
¶11 After the DCS case manager finished testifying, the juvenile court noted at 2:14 p.m. that Brenda had “just walked in.” The court then reviewed several exhibits and found that DCS had proven all three statutory grounds for termination by clear and convincing evidence. While the court was in the process of finding by a preponderance of the evidence that termination was in Z.D.‘s best interests, Brenda interjected, “No, it‘s not” and “I‘m a good mom.” In addition, Brenda asked to “say something,” but the court denied her request.
¶12 The juvenile court finished making its findings relating to Z.D.‘s best interests and then terminated Brenda‘s parental rights. The court stated, however, that if Brenda presented appropriate documentation of her back pain, she could move for reconsideration of the court‘s finding that she did not have good cause for her failure to appear at both scheduled days of the termination hearing. Brenda did not move for reconsideration, produce any medical documentation, or otherwise challenge the court‘s finding of no good cause for her failure to appear on the first scheduled day of the termination hearing and for her tardy arrival on the hearing‘s second scheduled day.
¶13 The court of appeals, though accepting the juvenile court‘s finding that Brenda “had no good cause for her failure to appear at the start of the termination hearing,” reversed the termination order and remanded for further proceedings. Brenda D. v. Dep‘t of Child Safety, 242 Ariz. 150, 153 ¶ 1, 154 ¶ 9 n.3 (App. 2017). Addressing issues of statutory and rules interpretation not raised by Brenda, the court held that
¶14 We granted review because the case presents recurring issues of statewide importance. We have jurisdiction under
II.
¶15 We review the interpretation of statutes, court rules, and constitutional issues de novo. Premier Physicians Grp., PLLC v. Navarro, 240 Ariz. 193, 194 ¶ 6 (2016) (statutes); State v. Fitzgerald, 232 Ariz. 208, 210 ¶ 10 (2013) (court rules); State v. Nordstrom, 230 Ariz. 110, 115 ¶ 17 (2012) (constitutional issues). “If a statute‘s [or court rule‘s] language is subject to only one reasonable meaning, we apply that meaning,” Bell v. Indus. Comm‘n of Ariz., 236 Ariz. 478, 480 ¶ 7 (2015), unless the meaning results in “an absurdity or constitutional violation,” Sell v. Gama, 231 Ariz. 323, 327 ¶ 16 (2013). “When the language can reasonably be read more than one way, however, we may consider the statute‘s [or court rule‘s] subject matter, legislative history, and purpose, as well as the effect of different interpretations, to derive its meaning.” Bell, 236 Ariz. at 480 ¶ 7.
¶16 DCS may initiate termination of parental rights proceedings by petition or motion. See
If a parent does not appear at the hearing, the court, after determining that the parent has been served as provided in subsection A of this section, 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.
¶17 As authorized by that statute, this Court promulgated
If the court finds the parent, guardian or Indian custodian 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, guardian or Indian custodian 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. The court shall enter its findings and orders pursuant to subsection (E) of this rule.
A.
¶18 DCS argues the court of appeals erred in concluding that neither
¶19 We agree with DCS. Both
¶20 When a parent fails to appear at a duly-noticed termination adjudication hearing, a juvenile court may invoke the substantive effects of that failure, including proceeding with the hearing in the parent‘s absence, only after finding that the procedural prerequisites have been met.
¶21 In addition to making part of
¶22 If a juvenile court determines under
¶23 We agree with DCS that, to avoid due process concerns, a juvenile court‘s discretionary finding of waiver based on a parent‘s failure to appear for a termination adjudication hearing should be made at the start of the hearing, before the proceeding commences. Cf. State v. Garcia-Contreras, 191 Ariz. 144, 146-49 ¶¶ 8-22 (1998) (recognizing that a criminal defendant has a due process right to be present at the defendant‘s trial and finding a violation of that right when a defendant who had not waived that right was absent during the entire jury selection proceeding). Although neither the statute nor rule are clear on that timing issue, we must strive to give them “meanings that avoid serious constitutional issues.” Bus. Realty of Ariz., Inc. v. Maricopa Cty., 181 Ariz. 551, 559 (1995); see also Hayes v. Cont‘l Ins., 178 Ariz. 264, 273 (1994) (“[I]f possible we construe statutes to avoid unnecessary resolution of constitutional issues.“). Under our rules, absent waiver, a parent has a “right to trial by the court on the termination motion” and a “right to cross examine all witnesses who are called to testify against the parent.”
¶24 If the parent does not appear before the termination adjudication hearing concludes, then the waiver of the parent‘s legal rights is effective throughout the hearing, and at its completion (that is, at the close of evidence, when the matter is submitted for the court‘s decision), the parent will be deemed to have admitted the factual allegations in the motion. See
¶25 Neither
¶26 Justice Timmer‘s partial dissent mischaracterizes our holding and overstates its practical effects. Contrary to its assertions, our interpretation of
¶27 Of course, courts “should not rewrite” statutes, but the dissent, while accusing us of doing so, is unconvincing in suggesting that the “plain language” of either
¶28 At bottom, however, there is very little practical difference between our positions. The dissent asserts that
¶29 The dissent is instead based on its disagreement with our holding that (1) before the juvenile court may find, at the start of the hearing, that the parent waived her right to be present, it must first find that the parent “failed to appear“; and (2) a “failure to appear” occurs if the parent does not timely attend. As discussed above, however, our holding is based on
B.
¶30 The waiver principles discussed above do not limit a parent‘s right to counsel in a termination adjudication hearing, regardless of whether the parent fails to appear for or is tardy in attending such hearing. Even when a juvenile court exercises its discretion at the start of a hearing to find that a parent waived the parent‘s legal rights by failing to appear, the absent parent does not waive the right to counsel at the hearing. See
¶31 Therefore, a juvenile court‘s finding that a non-appearing parent waived his or her legal rights does not limit the parent‘s counsel‘s right or ability to fully participate in a termination adjudication hearing. Moreover, because a parent is statutorily “deemed to have admitted” only the factual allеgations in the motion when the parent fails to attend any part of the termination hearing, we hold that a parent‘s late arrival does not preclude the parent‘s counsel from contesting the motion‘s factual allegations at any point during the termination hearing.
C.
¶32 When a juvenile court finds that a parent waived the parent‘s legal rights by failing to appear, we hold that the state must nevertheless meet its burden of proof by presenting sufficient evidence to establish a ground for termination and that termination is in the child‘s best interests. See
¶33 Applying the above principles to this case, we conclude that the juvenile court did not err in finding at the start of the termination adjudication hearing that Brenda waived her legal rights by failing to timely
¶34 The court of appeals also held that the juvenile court violated Brenda‘s due process rights in restricting her counsel‘s participation at the termination adjudication hearing by permitting him to address only the “weight of the evidence,” not its admissibility. Id. at 153 ¶ 1, 156-57 ¶¶ 21-26. We agree, and the State properly concedes that point.
¶35 The court of appeals’ final holding, however, is debatable. The court sua sponte held that the juvenile court violated Brenda‘s due process rights and fundamеntally erred by refusing to allow her “to testify based on a tardy arrival.” Id. at 153 ¶ 1. According to the court of appeals, Brenda “repeatedly entreated” the juvenile court “for an opportunity to be heard” and “objected to the [juvenile] court‘s denial of her right to testify.” Id. at 156 ¶ 19. But viewed “in the light most favorable to upholding the juvenile court‘s order,” Ariz. Dep‘t of Econ. Sec. v. Matthew L., 223 Ariz. 547, 549 ¶ 7 (App. 2010), the record does not support the court of appeals’ factual premises. At best, the record merely reflects that the juvenile court denied Brenda‘s single request to “say something” after the court orally ordered her parental rights terminated. From the sparse record, it is not clear at all that Brenda wanted to testify, much less what her testimony might have addressed; nor did she or her counsel object to any alleged denial of the right to testify.
¶36 Even assuming the juvenile court violated Brenda‘s due process right to testify (a point the State does not concede) as well as her right to full participation of counsel, we (unlike the court of appeals) find no basis for reversal on those grounds. Brenda argues that we should apply “reversible error” review to the due process violations in this case. We disagree. This case is materially distinguishable from cases on which Brenda relies and that purportedly applied “reversible error” review. In those cases, Arizona courts stated that it is “reversible error” for a juvenile court to violate a parent‘s right to counsel by either (1) refusing to appoint the parent counsel in a termination hearing, e.g., Christy A., 217 Ariz. at 307 ¶¶ 26-29; Daniel Y. v. Ariz. Dep‘t of Econ. Sec., 206 Ariz. 257, 260 ¶ 12, 262-63 ¶ 25 (App. 2003), or (2) proceeding with the termination hearing without the parent‘s counsel present, e.g., Bob H., 225 Ariz. at 282-83 ¶¶ 14-18. This case does not involve either of those two scenarios, and we decline to extend “reversible error” review to this case.
¶37 Because Brenda did not object to either of the allegеd due process violations in the juvenile court (and did not even raise the alleged violation of her right to testify in the court of appeals), we conclude that fundamental error review applies. See Cecilia A. v. Ariz. Dep‘t of Econ. Sec., 229 Ariz. 286, 287 ¶ 1, 289 ¶ 11 (App. 2012) (in considering “whether the juvenile court violates a mentally impaired parent‘s due process rights when it fails to suspend a parental severance hearing until the parent can regain the ability to meaningfully participate in the proceedings and assist counsel,” the court stated that the parent waived her due process “argument by failing to raise it to the juvenile court,” and therefore reviewed it “only for fundamental error“); see also Monica C. v. Ariz. Dep‘t of Econ. Sec., 211 Ariz. 89, 93-95 ¶¶ 21-27 (App. 2005) (stating that a parent‘s claims of due process and rules violations in termination proceedings were subject to fundamental error review because the parent did not object in the juvenile court).
¶38 Under fundamental error review, Brenda “bears the burden to establish that (1) error exists, (2) the error is fundamental,
¶39 Even if we assume that the juvenile court‘s errors and resulting deprivation of Brenda‘s due process rights go to the foundation of the State‘s case or Brenda‘s defense, Brenda made absolutely no showing of prejudice in the juvenile court or on appellate review. For example, Brenda has not established that any of the evidence presented at the termination hearing was inadmissible, that the evidence was insufficient to establish the grounds for severance or the juvenile court‘s finding of Z.D.‘s best interests, or that she would have presented particular testimony or other additional evidence to challenge the State‘s evidence. Because Brenda “presented no evidence that a reasonable [judge] would have concluded differently than did the [juvenile court] judge” in this case, she has not met her burden under fundamental error review. Monica C., 211 Ariz. at 95 ¶ 26. The court of appeals erred in concluding that the juvenile court‘s denial of Brenda‘s right to testify was fundamental, prejudicial error and that the restrictions placed on Brenda‘s counsel deprived her of a fair trial. Brenda D., 242 Ariz. at 157 ¶ 20, 157-58 ¶ 26. Accordingly, we affirm the juvenile court‘s order terminating Brenda‘s parental rights to Z.D.
III.
¶40 For future guidance, we emphasize that when a parent fails to appear at a termination adjudication hearing, the juvenile court has discretionаry authority to find waiver of the parent‘s legal rights and to proceed with the hearing.
¶41 If, however, the parent does appear late but during the hearing, the juvenile court should immediately halt the proceedings to determine whether the parent cаn show “good cause” for his or her late arrival under
¶42 On the other hand, when a parent appears after the hearing has started and fails to show good cause for his or her late arrival, the juvenile court‘s earlier finding of waiver still applies to the proceedings up to the point at which the parent appeared. In that scenario, testimony and other evidence admitted before the parent‘s late arrival need not be repeated. But, absent extraordinary circumstances, the court should permit the tardy parent to testify and present other available evidence if the parent so chooses. Cf. id. at 307 ¶¶ 22-24 (recognizing that a parent has a due process
IV.
¶43 For the reasons stated above, we affirm the juvenile court‘s severance order and vacate the court of appeals’ opinion.
BRENDA D. V. DEPARTMENT OF CHILD SAFETY
JUSTICE TIMMER, joined by JUSTICE BOLICK, Dissenting in Part and Concurring in Part
JUSTICE TIMMER, with whom JUSTICE BOLICK joins, dissenting in part and concurring in part:
¶44 The Majority decides that a parent who arrives late to the hearing “does not appear at the hearing” as contemplated by
¶45 I begin with the plain language of
¶46 Even if the meaning of “does not appear” and “failed to appear” is unclear, as the Majority suggests, secondary interpretative principles support my reading. Neither
¶47 My reading of the statute and rule would also “avoid serious constitutional issues.” Bus. Realty of Ariz., Inc., 181 Ariz. at 559. Parents have a fundamental liberty interest in the care, custody, and management of their children that is protected by the Due Process Clause. See Santosky, 455 U.S. at 753, 758-59 (“[P]arents retain a vital interest in preventing the irretrievable destruction of their family life.“); see also Kent K. v. Bobby M., 210 Ariz. 279, 284 ¶ 24 (2005). Thus, when the state seeks to terminate that interest, it must provide fundamentally fair procedures. See Santosky, 455 U.S. at 753-54 (“If anything, persons faced with forced dissolution of their parental rights have a more critical need for procedural protections than do those resisting state intervention into ongoing family affairs.“).
¶48 Applying the three factors specified in Mathews v. Eldridge, 424 U.S. 319, 335 (1976) to determine what process is due, i.e., the private interests affected by the proceeding, the risk of error created by the state‘s procedure, and the countervailing governmental interest supporting
¶49 The Majority acknowledges the due process implications of reading the statute and rule as permitting the juvenile court to make the waiver and admission finding at the commencement of the hearing. See supra ¶ 30. To avoid a violation, the Majority creates a limited and revocable waiver of legal rights and directs that the admission of allegations must occur only if the parent fails to attend any part of the hearing. See supra ¶¶ 30-31, 40-42. But the language used in
¶50 Whenever a parent “does not appear” at the hearing,
¶51 The Majority‘s interpretation of
¶52
¶53 The Majority asserts that
¶54 Interpreting