Brenda D. v. Dep't of Child Safety

410 P.3d 419

BRENDA D., Appellant,

v.DEPARTMENT OF CHILD SAFETY, Z.D., Appellees.

No. CV-17-0136-PR

Supreme Court of Arizona.

Filed February 9, 2018

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.

VICE CHIEF JUSTICE PELANDER, opinion of the Court:

¶ 1 After the Arizona Department of Child Safety ("DCS") initiates proceedings to terminate parental rights by motion under A.R.S. § 8–862(D), if a parent fails to appear at a termination adjudication hearing without good cause, Arizona law vests the juvenile court with discretion to find that the parent has waived his or her legal rights and admitted the motion's allegations. A.R.S. § 8–863(C) ; Ariz. R.P. Juv. Ct. ("Rule") 66(D)(2). We address here how the statute and rule apply when a parent, without good cause, appears late for a termination adjudication hearing, after the juvenile court has already found waiver.

¶ 2 We hold that a parent who fails to timely appear for a duly-noticed termination adjudication hearing has "failed to appear" under § 8–863(C) and Rule 66(D)(2). We further hold that if a juvenile court, faced with a parent's non-appearance, exercises its discretion to proceed with the hearing in the parent's absence after finding waiver of the parent's legal rights, the rights waived include the parent's due process rights to be present and to participate and testify in the hearing. If the parent never appears, when the hearing concludes the parent will be deemed to have admitted the factual allegations in the motion. On the other hand, if the parent appears late, but before the termination adjudication hearing is concluded, the parent may exercise his or her rights to testify, present evidence, and participate for the duration of the hearing; thus, the waiver of the parent's legal rights is effective only until the parent's arrival and then ends. The tardy parent, however, may not seek to start the hearing anew by re-examining witnesses or reopening evidence that has already been presented.

¶ 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 parent 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 A.R.S. § 8–533(B)(3), (B)(8)(a), (B)(8)(c) (authorizing, respectively, termination based on substance abuse, and out-of-home placement for six months and for fifteen months).

¶ 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, at 1:30 p.m. The court provided Brenda with a written notice ("Form 3") that contained the following provision:

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 your absence, and the Court may terminate your parental rights to your child based on the record and evidence presented.

Ariz. R.P. Juv. Ct. Form 3.

¶ 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 Rule 65(D)(3) (requiring the juvenile court at the initial termination hearing to notify a parent of the substance of Form 3). Brenda indicated that she understood the notice.

¶ 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 appear 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 of 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, 393 P.3d 930, 933, 934, n.3 (App. 2017). Addressing issues of statutory and rules interpretation not raised by Brenda, the court held that a parent has not " ‘failed to appear’ " under A.R.S. § 8–863(C) and Rule 66(D)(2)"simply because he or she is tardy without good cause." Id. at 153 ¶ 1, 393 P.3d at 933. The court also held that the juvenile court violated Brenda's due process rights and fundamentally erred by placing restrictions on her counsel's participation at the hearing before she arrived, id. at 157–58 ¶¶ 21–26, 393 P.3d at 937–38, and by refusing to allow Brenda to testify after she arrived, id. at 156–57 ¶¶ 19–20, 393 P.3d at 936–37. (On the latter point, Brenda neither raised as an issue nor argued that the juvenile court unconstitutionally precluded her from testifying. Id. at 158 n.6, 393 P.3d at 938 n.6.)

¶ 14 We granted review because the case presents recurring issues of statewide importance. We have jurisdiction under article 6, section 5(3) of the Arizona Constitution and A.R.S. § 12–120.24.

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, 377 P.3d 988, 989 (2016) (statutes); State v. Fitzgerald , 232 Ariz. 208, 210 ¶ 10, 303 P.3d 519, 521 (2013) (court rules); State v. Nordstrom , 230 Ariz. 110, 115 ¶ 17, 280 P.3d 1244, 1249 (2012) (constitutional issues). "If a statute's [or court rule's] language is subject to only one reasonable...