MARIANNE N., Appellant, v. DEPARTMENT OF CHILD SAFETY, O.N., I.T., A.G., Appellees.
No. CV-16-0259-PR
SUPREME COURT OF THE STATE OF ARIZONA
September 25, 2017
243 Ariz. 53 | 401 P.3d 1002
Appeal from the Superior Court in Coconino County, The Honorable Margaret A. McCullough, Judge, No. JD2009-0008, AFFIRMED. Opinion of the Court of Appeals, Division One, 240 Ariz. 470 (App. 2016), VACATED IN PART.
COUNSEL:
Chad Joshua Winger (argued), Harris & Winger, P.C., Flagstaff; Attorneys for Marianne N.
Mark Brnovich, Arizona Attorney General, Dominic E. Draye, Solicitor General, Nicholas Chapman-Hushek (argued), JoAnn Falgout, Assistant Attorney Generals, Phoenix, Attorneys for Department of Child Safety
JUSTICE TIMMER authored the opinion of the Court, in which CHIEF JUSTICE BALES, VICE CHIEF JUSTICE PELANDER, and JUSTICE BRUTINEL joined. JUDGE PETER J. ECKERSTROM,* joined by JUSTICES BOLICK and GOULD, dissented.
¶1 When termination of parental rights proceedings are initiated by motion in a pending dependency action,
¶2 We here hold that applying
BACKGROUND
¶3 The Department of Child Safety (“DCS“) took custody of Marianne N.‘s three children in February 2015 and placed them in foster care. In June, after a hearing at which Marianne testified, the juvenile court found the children dependent as to her on the ground of neglect. (The court also found the children dependent as to their respective fathers. The fathers’ parental rights are not at issue here.) The court found that Marianne had continuing substance abuse issues and had exposed the children to inappropriate caregivers and safety risks. The court ordered DCS to continue providing family reunification services.
¶4 Marianne‘s participation in services was sporadic, and the children remained in foster care. At a permanency hearing held on November 30, the court changed the case plan to severance and adoption and directed DCS to file a motion to terminate Marianne‘s parental rights. DCS did so on the grounds of neglect, chronic abuse of dangerous drugs, and the length of time the children had been in an out-of-home placement. See
¶5 The court held an initial termination hearing on December 18, which Marianne attended. The court scheduled a mediation and pretrial hearing for January 20, 2016, and set the termination adjudication hearing for February 24. The court provided Marianne a written notice (“the Form 3“) informing her, in relevant part, as follows:
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 Pre-trial 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 your absence, and the Court may terminate your parental rights to your child based on the record and evidence presented.
See
¶6 Marianne did not appear at the scheduled mediation and pretrial hearing on January 20. Her attorney made “several attempts to contact her” by telephone without success. The court found that Marianne had notice of the hearing date and time, as shown by the Form 3, and had been warned about the consequences for non-attendance.
¶7 The court found that Marianne failed to appear without good cause and proceeded to conduct a termination hearing pursuant to
¶8 Thirty minutes after the hearing started, Marianne called the court asking to appear telephonically. She conferred separately with her attorney, who then related Marianne‘s explanation that the Form 3 listed a different date for the hearing. The court disbelieved Marianne because the Form 3 in the court‘s file listed the correct hearing date. The court therefore refused to permit Marianne to appear telephonically but indicated it would reconsider the decision if Marianne‘s copy of the Form 3, which may have been filled out separately from the original, bore an incorrect hearing date. (She never submitted her copy for inspection.
¶9 At the conclusion of the hearing, the court found that DCS had proven all three statutory grounds for termination by clear and convincing evidence and that termination was in the children‘s best interests. The court therefore terminated Marianne‘s parental rights. (The court also terminated parental rights of one of the fathers who did not attend the hearing. It confirmed the termination adjudication hearing date for the other two fathers who attended the hearing.).
¶10 Marianne appealed. Marianne N. v. Dep‘t of Child Safety, 240 Ariz. 470 (App. 2016). She argued for the first time that
¶11 We granted review to decide the constitutionality of
DISCUSSION
I.
A.
¶12 We here decide only whether
B.
¶13 Before turning to the merits, we consider DCS‘s argument that Marianne waived her challenge by failing to raise it to the juvenile court. Although generally we refuse to address an argument raised for the first time on appeal, that principle is jurisprudential, not jurisdictional. See City of Tucson v. Clear Channel Outdoor, Inc., 209 Ariz. 544, 552 ¶ 33 n.9 (2005). In light of the statewide significance of the issue here, and because the court of appeals decided it, we address the merits of Marianne‘s challenge. Cf. id. (noting that “good reason exists” to decide an issue not raised to the superior court when the issue has statewide importance and the court of appeals addressed it).
II.
A.
¶14 The
¶15 Parental-termination proceedings are initiated by motion, when dependency proceedings are ongoing, and otherwise by petition. See
A. At least ten days before the initial hearing on the termination of parental rights pursuant to this article, the party who is responsible for filing a motion pursuant to § 8-862, subsection D shall serve the motion on all parties as prescribed in rule 5(c) of the Arizona rules of civil procedure . . . .
B. The court may terminate the parental rights of a parent if the court finds by clear and convincing evidence one or more of the grounds prescribed in § 8-533.
C. 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.
¶16
C. Notice of Hearing. A notice of hearing shall accompany the motion or petition for termination of parental rights and shall advise the parent . . . of the location, date and time of the initial termination hearing. In addition to the information required by law, the notice of hearing shall advise the parent . . . that failure to appear at the initial hearing, pretrial conference, status conference or termination adjudication hearing, without good cause, may result in a finding that the parent . . . has waived legal rights, and is deemed to have admitted the allegations in the motion or petition for termination. The notice shall advise the parent . . . that the hearings may go forward in the absence of the parent . . . and may result in the termination of parental rights based upon the record and evidence presented.
This rule implicitly authorizes the juvenile court to terminate parental rights by default if a parent fails to appear without good cause at any one of four types of court proceedings. See Adrian E. v. Ariz. Dept. of Econ. Sec., 215 Ariz. 96, 100 ¶ 12 (App. 2007) (noting that reading
¶17 Marianne argues that
¶18 We need not decide whether
B.
¶19 We begin by addressing the meaning of
¶20 The identity of “the hearing” in
¶21 We need not resolve this ambiguity. Even assuming Marianne is correct that “the hearing” in
¶22 The procedural framework created by this Court includes
¶23 The legislative history for
¶24 The situation in Don L. is analogous to the one here and illuminates the legislature‘s intent. The child there was adjudicated dependent, and DCS‘s predecessor eventually petitioned to terminate the father‘s parental rights. Don L., 193 Ariz. at 557-58 ¶ 2. (The law was amended after the events there to permit the termination of parental rights to be initiated by motion in a pending dependency action rather than by petition. See
¶25 The legislature‘s goal of “resolv[ing] the problem posed by” Don L. is only achieved by interpreting
¶26 Our view is also supported by considering that Marianne‘s interpretation would result in treating motion-initiated termination proceedings differently from petition-initiated proceedings. We find no basis for doing so.
¶27 When the legislature enacted
¶28 Under Marianne‘s view, adopted by the dissent, the court could find that a parent who does not attend a pretrial conference waived legal rights and admitted termination allegations and then terminate that parent‘s rights after receiving sufficient evidence in petition-initiated proceedings but not in motion-initiated proceedings. But the legislature enacted the motion-initiated termination process in pending dependency cases “so that children can be adopted more readily and at an earlier age.” Mara M. v. Ariz. Dep‘t of Econ. Sec., 201 Ariz. 503, 505-06 ¶ 16 (App. 2002). It is unfathomable that the legislature would intend that
¶29 The dissent speculates that the legislature singled out petition-initiated proceedings for different treatment because judges know less about the alleged termination grounds there than in motion-initiated proceedings, which have a dependency track record. The theory is that a parent‘s non-appearance at a pretrial conference in petition-initiated proceedings therefore justifies acceleration to a final termination hearing to avoid the risk of obstructing and delaying a child‘s permanency. See infra ¶¶ 45-47. In short, the less the judge knows about a case the more justified proceeding to a final termination hearing if a parent fails to appear at a pretrial conference. That conjecture is illogical. Whether the case is initiated by petition or motion, when a parent fails without good cause to attend a pretrial conference, proceeding to termination provides a strong incentive for attendance and prevents delay in the resolution of the child‘s status, a goal—unlike the dissent‘s speculative rationale—that is supported by the legislative history.
¶30 Marianne argues that by omitting references to a pretrial conference and status conference in
¶31 In sum, we agree with the court of appeals’ holding but for a different reason.
CONCLUSION
¶32 We vacate ¶¶ 7 – 14 of the court of appeals’ opinion and affirm the juvenile court‘s termination of Marianne‘s parental rights.
JUDGE ECKERSTROM, joined by JUSTICES BOLICK and GOULD, dissenting:
¶33 The majority holds today that Marianne N., a mother who appeared at all fourteen hearings in her dependency case, and attempted to appear telephonically at the pretrial conference regarding DCS‘s motion to terminate her parental rights, was properly “defaulted” under Arizona law. Because I cannot agree that
¶34 The United States Supreme Court long ago observed that a parent‘s right to “care, custody, management and companionship of [his or] her minor children” is “far more precious” than any property interest, May v. Anderson, 345 U.S. 528, 533, (1953), and has determined that right is fundamental. Stanley v. Illinois, 405 U.S. 645, 651 (1972). Accordingly, both the United States Supreme Court and Arizona courts have repeatedly held that the state may not interfere with the relationship between parents and their children without providing due process of law. Carolina H. v. Ariz. Dep‘t of Econ. Sec., 232 Ariz. 569, 571 ¶ 6 (App. 2013) (listing cases).
¶35 As the majority points out, whether application of
¶36 In construing the rule and the statute, we must be cognizant that pretrial conferences in motion-initiated severance proceedings arise near the end of dependency proceedings. See
¶37 In enacting
¶38 Any statutory provision that establishes consequences for a person‘s failure to appear for legal proceedings necessarily strikes a balance between competing interests. Here, the statute balances the parent‘s entitlement to due process against the state‘s substantial interest in securing permanency for dependent children. See Andrew R. v. Ariz. Dep‘t of Econ. Sec., 223 Ariz. 453, 460 ¶ 24 (App. 2010) (observing strong public policy in favor of securing permanency for children). Indeed, the sequential provisions in
¶39 Any expansion of the grounds for such a default would alter the balance expressed by the text of
¶40 The majority holds that the statute‘s language does not expressly preclude default at a pretrial conference and therefore can be harmonized with its reading of
¶41 Thus, when the legislature intended to sanction non-appearance at pretrial conferences with instant acceleration of the termination proceedings, it conveyed that intent expressly. That it declined to do so in
¶42 Based on its plain language,
¶43 Furthermore, the language of subsection (C) cannot be harmonized with the suggestion that its default provisions would apply to non-appearance at multiple types of hearings: the statute sanctions a parent for non-appearance at “the hearing“—a semantically singular event. Thus,
¶44 But why would the legislature establish different forfeiture standards for terminations by petition than for terminations by motion? Indeed, as the majority correctly observes, children involved in motion-initiated severance proceedings have already endured a longer period of uncertainty. Would not permanency be more urgent for them? Why, then, would the legislature be more tolerant of a parent‘s failure to appear in motion-initiated proceedings than those initiated by petition?
¶45 The answers rest in the procedural differences between these two proceedings. In termination proceedings arising by motion, the lawyers and parties have already appeared in court, usually numerous times, to address the underlying dependency. That is precisely what occurred in this case. For this reason, the grounds for severance are well known by the court and the parties. Frequently, the relevant factual issues have already been explored and litigated, albeit in the context of a dependency.
¶46 In contrast, petitions for termination initiate entirely new legal proceedings. Under such circumstances, planning hearings, such as pretrial conferences and status conferences, gain elevated importance. This is because courts must organize the gathering of evidence and coordination of schedules for new litigation. In that context, a parent‘s failure to appear at such hearings has a greater potential to obstruct and delay the process for establishing the child‘s permanency.
¶47 For this reason, pretrial conferences have comparatively less importance in motion-initiated proceedings. Indeed, as the majority points out, they are frequently not necessary and, for reasons discussed above, a parents’ non-appearance at them risks no delay whatsoever in establishing permanency. In assessing whether to sanction a parent for non-appearance at a hearing, the effect of that non-appearance on subsequent proceedings would be far from “illogical” consideration. It would be the primary consideration.
¶48 To be sure, the parallel termination statutes do not themselves articulate the purpose for the textual distinction between the types of hearings at which the parent may be defaulted. Thus, any explanation for variation
¶49 Indeed, the legislature has made plain its intent to enact distinct procedures for motion-initiated and petition-initiated severance proceedings.
¶50 The majority, however, reads
¶51 Our traditional standards of interpretation subordinate legislative history to plain language for good reason: such history is often scant, fails to articulate the entire legislature‘s intent, and may be unclear in its intended application to specific legal problems. See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts, 369-90 (2012) (itemizing the interpretive limitations of divining legislative intent from “legislative history“). I submit we encounter those very limitations in ascribing statutory intent from the legislative history here.
¶52 The majority directs us to the language in the Senate‘s “Final Revised Fact Sheet” as expressing the legislature‘s intentions when it enacted the statutory scheme. But, as a threshold matter, that fact sheet only purports to express the intentions of the Senate‘s drafters—not those of the House of Representatives, whose vote was also necessary to pass it, or the Governor who signed it. Both were necessarily and primarily focused on whether they approved the procedures expressed by the words of
¶53 Furthermore, the fact sheet‘s reference to Don L. v. Ariz. Dep‘t of Econ. Sec., 193 Ariz. 556 (App. 1998), does not necessarily demonstrate any intention by the drafters to be constrained by the specific features of that case. Indeed, the fact sheet itself suggests that the Senate understood Don L. to describe a more general problem—“that the juvenile court lacked authority to sever parental rights by default in the absence of a court rule or statute granting that authority.” Ariz. State Senate Fact Sheet for S.B. 1109, 44th Leg., 1st Reg. Sess. (Apr. 30, 1999). Thus, nothing in the fact sheet demonstrates any legislative intent that the parallel statutes,
¶54 Furthermore, as the majority points out, in Don L., the proceeding had been initiated by petition, 193 Ariz. 556, 557 ¶ 2, as
¶55 To be sure, the petition in Don L. arose from a dependency proceeding, id. ¶ 2, and thus, to that extent would parallel the instant case. But the legislature responded to Don L. by enacting distinct provisions for terminations by motion and terminations by petition, each with its unique default language. In my view, we stand on uncertain ground to assume that the Senate‘s reference in the fact sheet to Don L. expresses a legislative intent that the two default provisions should be read as facsimiles.
¶56 For the above reasons, I conclude that
¶57
¶58
¶59 By its terms, then,
¶60 But
¶61 While both interpretations can be logically derived from the language of the rule, there are sound reasons to adopt the latter. First,
¶62 The remaining language in
¶63 Perhaps most importantly, however, our jurisprudence provides clear direction as to which plausible interpretation of
¶64 In summary,
¶65 Nor was it a finding authorized by
¶66 I therefore respectfully dissent and would reverse the juvenile court‘s termination of Marianne‘s parental rights.