Tammy R. v. Lance B.

Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court

Appeal from the Superior Court in Coconino County No. S0300AD202000129 The Honorable Elaine Fridlund-Horne, Judge

Coconino County Public Defender's Office, Flagstaff By Rhys Campbell Counsel for Appellant

Jonathan D. Conant, Attorney at Law PLLC, Prescott By Jonathan D. Conant Counsel for Appellee Lance B.

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Judge David B. Gass delivered the decision of the court, in which Presiding Judge D. Steven Williams and Judge James B. Morse Jr. joined.

MEMORANDUM DECISION

GASS, JUDGE.

¶1 Mother raises two arguments in her appeal of the superior court's decision to terminate her parental rights. First, mother argues the superior court violated her due process rights by holding a virtual trial to terminate her parental rights. Second, she argues the superior court should have sua sponte continued the trial until mother had a better internet connection and could continue testifying by video rather than having her participate and testify by telephone. Because the superior court did not err, we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 The parents have participated in three cases involving this child. In the first case, the Department of Child Safety (DCS) initiated a dependency proceeding against mother and father. Father prevailed and gained custody of the child. In the second case, the superior court ordered mother's parenting time to be supervised. In the same action, father later obtained a protective order preventing mother from contacting the child.

¶3 After the protective order expired, father filed this private termination action in Coconino County. In father's petition, he sought to terminate mother's parental rights based on A.R.S. § 8-533.B.1 (abandonment) and § 8-533.B.3 (chronic drug abuse).

¶4 The superior court held a termination trial using a combination of video and telephonic conferencing. When the superior court held the trial, the Arizona Supreme Court had authorized presiding superior court judges to conduct termination trials using video or telephonic conferences. See Ariz. Sup. Ct. Admin. Order No. 2020-197 (Dec. 3, 2020). Coconino County Superior Court Administrative Order Number 2021-002 permitted the same. See Coconino Cnty. Super. Ct. Admin. Order No. 2021-002 (May 27, 2021).

¶5 Mother alleges her counsel objected to the virtual termination trial when her counsel said, "I'd just like to put on the record that the-I

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believe it's an open question as to confrontation clause, et cetera, whether [virtual] trials are sufficient. I just want to put that on the record." Mother appeared by video, but she experienced a few internet connection problems, at which point the superior court had her participate by telephone. The superior court judge, however, noted she could hear all mother's testimony. Mother also alleged other witnesses had issues testifying virtually. For instance, "the court reporter had to type 'indiscernible' [and] 'inaudible' into the record."

¶6 After the trial, the superior court terminated mother's parental rights based on abandonment under A.R.S. § 8-533.B.1. The superior court also found terminating mother's parental rights served the child's best interests because father's wife-the child's stepmother- planned to adopt her and "she ha[d] been there for everything" since the summer of 2018. Mother timely appealed. This court has jurisdiction under article VI, section 9, of the Arizona Constitution, and A.R.S. §§ 8-235.A, 12-120.21.A.1, and 12-2101.A.1.

ANALYSIS

¶7 To terminate parental rights, the superior court must find by clear and convincing evidence a statutory ground for termination under A.R.S. § 8-533, and by a preponderance of the evidence termination of the parental rights will be in the child's best interests. See Alma S. v. Dep't of Child Safety, 245 Ariz. 146, 149-50, ¶ 8 (2018). This court views the evidence in the light most favorable to sustaining the superior court's ruling and will affirm if reasonable evidence supports the ruling. See Jordan C. v. Ariz. Dep't of Econ. Sec., 223 Ariz. 86, 94, ¶ 18 (App. 2009).

I. The superior court did not violate mother's due process rights when it held a virtual trial.

¶8 Mother argues harmless-error review applies because her attorney sufficiently preserved her due process objection when she said, "I'd just like to put on the record that the-I believe it's an open question as to confrontation clause, et cetera, whether [virtual] trials are sufficient. I just want to put that on the record." Father argues fundamental-error review applies because mother's counsel's statement was insufficient. We need not reach this issue because the superior court did not err. See, e.g., State v. Escalante, 245 Ariz. 135, 142, ¶ 21 (2018) (explaining "the first step in fundamental error review is determining whether trial error exists"); State v. Henderson, 210 Ariz. 561, 567, ¶ 18 (2005) (explaining when a party properly objects, harmless-error review preserves the challenged issue for

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appeal and "places the burden on the [non-objecting party] to prove . . . error did not contribute" to the outcome (emphasis added)).

¶9 This court reviews due process challenges de novo. See Solorzano v. Jensen, 250 Ariz. 348, 350, ¶ 9 (App. 2020). This court reviews procedural due process challenges under the test established in Mathews v. Eldridge, 424 U.S. 319, 333-35 (1976). Dep't of Child Safety v. Beene, 235 Ariz. 300, 305, ¶ 11 (App. 2014); see also Kent K. v. Bobby M., 210 Ariz. 279, 286, ¶ 33 (2005) (applying the Mathews test to a privately-initiated termination action). Under the Mathews test, this court balances four factors: (1) the nature of the proceedings; (2) the private interests at stake; (3) the interests of the State; and (4) the risk procedures used will lead to erroneous decisions. Beene, 235 Ariz. at 305, ¶ 11. This court will reverse only if mother establishes the superior court prejudiced a substantial right. See Roberto F. v. Ariz. Dep't of Econ. Sec., 232 Ariz. 45, 50, ¶ 18 (App. 2013) (quoting Creach v. Angulo, 189 Ariz. 212, 214 (1997)). Mother cannot rely on speculation but instead must prove sufficient prejudice to establish a reasonable fact finder...