MARIANNE N., Appellant, v. DEPARTMENT OF CHILD SAFETY, O.N., I.T., A.G., Appellees.
No. 1 CA-JV 16-0085
Court of Appeals of Arizona, Division 1.
FILED 10/4/2016
381 P.3d 264
of sentence, probation, pardon or parole, work furlough or release from confinement on any other basis.”
CONCLUSION
¶ 39 For the foregoing reasons, we affirm Gutierrez‘s convictions and sentences.
Arizona Attorney General‘s Office, Mesa, By Nicholas Chapman-Hushek, Counsel for Appellee Department of Child Safety
Presiding Judge Kenton D. Jones delivered the Opinion of the Court, in which Judge Randall M. Howe and Judge Donn Kessler joined.
OPINION
JONES, Judge:
¶ 1 Marianne N. (Mother) appeals the termination of her parental rights to O.N., I.T., and A.G. (the Children). Contrary to Mother‘s arguments,
FACTS1 AND PROCEDURAL HISTORY
¶ 2 In February 2015, DCS filed a petition alleging the Children were dependent as to Mother on the grounds of neglect and substance abuse.2 After a contested hearing, the juvenile court adjudicated the Children dependent as to Mother in June 2015 and approved a case plan of family reunification concurrent with severance and adoption. Mother‘s participation in services was inconsistent; she also continued to minimize DCS‘s concerns regarding her substance abuse, history of domestic violence, and mental health and, on the rare occasion she participated in drug testing, tested positive for methamphetamine.
¶ 3 In November 2015, the case plan was changed to severance and adoption. DCS then moved to terminate Mother‘s parental rights on the grounds of neglect, substance abuse, and the length of time the Children had been in an out-of-home placement. See
¶ 5 Through counsel, Mother reported having been given a handwritten piece of paper at the initial severance hearing indicating the pretrial conference was scheduled for January 27, 2016. The juvenile court noted the Form 3 Mother signed and returned contained the correct date and time for the conference, determined Mother did not have good cause for her failure to appear in person as ordered, and proceeded in her absence.
¶ 6 After receiving exhibits and testimony from the DCS case worker, the juvenile court found DCS had proven all three statutory grounds for severance by clear and convincing evidence and that severance was in the Children‘s best interests by a preponderance of the evidence. Accordingly, the court entered an order terminating Mother‘s parental rights to the Children. We have jurisdiction pursuant to
DISCUSSION
I. Rule 64(C) is Constitutional.
¶ 7 Mother first argues
¶ 8 Proceedings for the termination of parental rights may be initiated by motion if the child is dependent and the juvenile court finds a case plan of severance and adoption is in the child‘s best interests,
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.
¶ 9 The Arizona Constitution divides the powers to create, enforce, and interpret law among the legislative, executive, and judicial branches, respectively, mandating that “such departments shall be separate and distinct, and no one of such departments shall exercise the powers properly belonging to either of the others.”
¶ 10 The line between the legislature‘s enactment of substantive law and the court‘s adoption of procedural rules is not always clear. See, e.g., Andrews v. Willrich, 200 Ariz. 533, 535, ¶ 7, 29 P.3d 880, 882 (App. 2001) (“[A]n unyielding separation of powers is impracticable in a complex government, and some blending of powers is constitutionally acceptable.“) (citations omitted). Although the legislature may enact “supplementary provisions to court-devised procedural rules,” in the event of a conflict in procedure, our supreme court‘s rules control. Pompa v. Superior Court, 187 Ariz. 531, 534, 931 P.2d 431, 434 (App. 1997) (citations omitted). Likewise, our supreme court is prohibited from altering the substantive law created by statute. Daou v. Harris, 139 Ariz. 353, 357-58, 678 P.2d 934, 938-39 (1984); see also Brush Wellman, Inc. v. Lee, 196 Ariz. 344, 348, ¶ 12, 996 P.2d 1248, 1252 (App. 2000). The distinction between substantive rights and procedural rules is not pristine or capable of definition in the abstract. It has, however, been described as follows:
[S]ubstantive law is that part of the law which creates, defines and regulates rights; ... procedural law is that which prescribes the method of enforcing the right or obtaining redress for its invasion. It is often said the [procedural] law pertains to and prescribes the practice, method, procedure or legal machinery by which the substantive law is enforced or made effective.
State v. Birmingham, 96 Ariz. 109, 110, 392 P.2d 775, 776 (1964) (citations omitted).
¶ 11 Mother argues “the substantive scope wherein one may be deprived of [her] substantive legal right to one‘s natural child for failure to appear in court” has been authorized in
¶ 12 A parent‘s absence from a pretrial proceeding does not automatically result in the termination of her parental rights. See Tina T. v. Dep‘t of Child Safety, 236 Ariz. 295, 299, ¶ 16, 339 P.3d 1040, 1044 (App. 2014) (noting the Arizona Rules of Procedure for the Juvenile Court protect a parent from losing parental rights solely upon the basis that she does not contest the allegations of the petition) (citing In re Brittany Ann H., 233 Wis.2d 344, 607 N.W.2d 607, 619, ¶ 52 (2002)). Rather, it results in a waiver of the parent‘s opportunity to contest the allegations of the petition. See
¶ 13 Upon concluding the parent has waived those rights, the juvenile court does not simply enter a severance by default, but must still hear testimony, receive evidence, and enter appropriate findings and orders
¶ 14
II. Mother Failed to Provide Good Cause for Her Failure to Appear.
¶ 15 Mother next argues the juvenile court erred in concluding she lacked good cause for her failure to appear at the pretrial conference. We review the court‘s finding that a parent lacked good cause for her failure to appear for an abuse of discretion and will reverse only if “the juvenile court‘s exercise of that discretion was ‘manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.‘” Adrian E., 215 Ariz. at 101, ¶ 15, 158 P.3d at 230 (quoting Lashonda M. v. Ariz. Dep‘t of Econ. Sec., 210 Ariz. 77, 83, ¶ 19, 107 P.3d 923, 929 (App. 2005)).
¶ 16 Mother does not dispute she was properly served with the motion for termination and had previously received notice that her parental rights could be terminated if she failed to attend proceedings without good cause; she argues only that her mistake regarding the date of the hearing was reasonable and excusable. However, the record reflects Mother signed and returned the Form 3: Notice to Parent in Termination Action, which clearly and correctly listed the date and time of the initial severance hearing. And, although given the opportunity, Mother never provided any evidence or testimony to support her assertion that she had previously been advised of a different date. Moreover, Mother has not identified any meritorious defense to the allegations contained in the termination motion. See Christy A., 217 Ariz. at 305, ¶¶ 18-19, 173 P.3d at 469 (considering the parent‘s lack of a meritorious defense in evaluating whether she had good cause for her failure to appear).
¶ 17 Under these circumstances, Mother has shown no abuse of discretion. See, e.g., Bob H. v. Ariz. Dep‘t of Econ. Sec., 225 Ariz. 279, 281-82, ¶¶ 8-9, 11-13, 237 P.3d 632, 634-35 (App. 2010) (affirming both findings of lack of good cause where father reported he was misinformed regarding the time of the hearing and had just finished driving 1100 miles, and where mother argued she had to arrange her own transportation and was only
III. Termination of Mother‘s Parental Rights Is in the Children‘s Best Interests.
¶ 18 Mother argues the juvenile court erred by failing to make any factual findings to support its conclusion that severance was in the Children‘s best interests. See Mary Lou C. v. Ariz. Dep‘t of Econ. Sec., 207 Ariz. 43, 47, ¶ 8, 83 P.3d 43, 47 (App. 2004) (holding a statutory ground for severance cannot, alone, justify termination of parental rights; termination must also be “in the best interest of the child“) (quoting Michael J. v. Ariz. Dep‘t of Econ. Sec., 196 Ariz. 246, 249, ¶ 12, 995 P.2d 682, 685 (2000)); see also
¶ 19 Although the juvenile court did not announce its factual findings on the record at the conclusion of the termination hearing, it later issued written findings of fact and conclusions of law. Within that document, the court found “[t]ermination of parental rights would free the children for adoption with a family who would be able to provide them with security and stability in their lives ... [and] further the plan of adoption.” These findings are sufficient to support the best interests determination. See Mary Lou C., 207 Ariz. at 50, ¶ 19, 83 P.3d at 50 (holding evidence “that the child is adoptable ... [and] in appropriate foster care/adoption placement” is sufficient to support a best interests finding in a termination order); Maricopa Cty. Juv. Action No. JS-501904, 180 Ariz. 348, 352, 884 P.2d 234, 238 (App. 1994) (finding a child benefits from severance if it would free the child for an adoption or if the child “would benefit psychologically from the stability an adoption would provide“). Accordingly, Mother has shown no error.
CONCLUSION
¶ 20 The juvenile court‘s order terminating Mother‘s parental rights to the Children is affirmed.