DAVID P. v. ADES, et al.
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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE DAVID P., ) ) Appellant, ) ) v. ) ) ARIZONA DEPARTMENT OF ECONOMIC ) SECURITY, F. P., V.P., ) G. F., M. P., ) ) Appellees. ) ) __________________________________) DIVISION ONE FILED: 5/21/2013 RUTH A. WILLINGHAM, CLERK BY: mjt 1 CA-JV 13-0013 DEPARTMENT D MEMORANDUM DECISION (Not for Publication 103(G) Ariz.R.P. Juv. Ct.; Rule 28 ARCAP) Appeal from the Superior Court in Maricopa County Cause No. JD21171 The Honorable Joan M. Sinclair, Judge AFFIRMED Thomas C. Horne, Attorney General Phoenix By Nicholas Chapman-Hushek, Assistant Attorney General Attorneys for Appellees John L. Popilek, PC By John L. Popilek Attorneys for Appellant G O U L D, Judge Scottsdale ¶1 David P. ( Father ) appeals the juvenile court s order severing his parental rights to his four children, F.P., V.P., G.F., and M.P. (collectively, children ). 1 For the following reasons, we affirm. Facts and Procedural Background ¶2 In December 2011, Father s children were found alone in the home and covered with rashes. The eldest child, F.P., who was eight years old, reported that he was caring for his three younger siblings. gone from the A neighbor reported that the mother had been home for two days and recently bathed the children herself. that the neighbor had The home had a strong sour unpleasant smell, and rotting food was found in the refrigerator. The kitchen floor was smeared with a brown residue, and there appeared to be feces in the living room. A bottle of Crown Royal liquor was found on the bathroom counter, and a glass pipe for smoking methamphetamine was found on the edge of the bed. The youngest child, M.P., had a rash that was so severe that he was immediately received taken a to Phoenix urinary Children s screen that hospital, tested where positive he for methamphetamine. ¶3 The children were removed in December 2011, and were found dependent as to Father in May 2012. 1 On August 9, the case The caption has been amended to safeguard the identity of the juveniles pursuant to Administrative Order 2013-0001. 2 plan was changed from reunification to severance and adoption. At the August 9 hearing, the court provided Father with a Form 3 Notice to Parent in Termination Action, which included the following paragraph: 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, Status Conference, or Termination Adjudication Hearing without good cause, the Court may determine that you have waived your legal rights and admitted the grounds alleged in the motion/petition for termination. The Court may go forward with the Termination Adjudication Hearing in your absence and may terminate your parental rights to your child based on the record and evidence presented. Ariz. R. Juv. Ct., Form 3. ¶4 In September 2012, Father s parental rights. the State moved to terminate At the initial termination hearing, Father denied the State s allegations, and a pretrial conference was set for November 20. Notice of Hearing on Father was also given a copy of ADES s Motion for Termination of Parent-Child Relationship, which contained the following warning: You have a right to appear as a party in this proceeding. You are advised that your failure to personally appear in the court at the initial hearing, pretrial conference, status conference or dependency adjudication, without good cause shown, may result in a finding that you have waived your legal rights and have admitted the 3 allegations in the Motion. In addition, if you fail to appear, without good cause, the hearing may go forward in your absence and may result in an adjudication of dependency, termination of your parental rights or the establishment of a permanent guardianship based upon the record and the evidence presented to the court. ¶5 When the pretrial hearing began on November 20, Father was not present in the courtroom. The court asked Father s counsel where Father was, and counsel replied that she did not know. The court found that no good cause supported his absence and found that Father had waived his rights by failing to appear. The court then heard testimony from the case manager and admitted four case reports into evidence. in the hearing, objecting to Father s counsel participated certain testimony and cross- examining the case manager. ¶6 Based on the evidence presented by ADES, the court terminated Father s parental rights pursuant to Arizona Revised Statutes ( A.R.S. ) sections 8-533(B)(3) (substance abuse) and 8533(B)(8)(a)-(b) (time-in-care) (West 2013).2 At the conclusion of the hearing, the court ordered ADES to file proposed findings of fact and conclusions of law.3 2 We cite to the current version of the statute when no revisions material to this decision have occurred. 3 The hearing, which was set to begin at 8:30 a.m., started at 8:38 a.m. and ended at 8:54 a.m. 4 ¶7 After the hearing was over, Father s counsel discovered Father standing outside the courtroom. Father explained that he had taken a city bus to court and had to walk from the bus stop to the hearing. courthouse, and was therefore slightly late for the Based on Father s statements, counsel moved to set aside the termination ruling the next day on the grounds there was good cause for Father s failure to appear at the hearing. ¶8 While Father s motion was pending, ADES submitted its proposed findings of fact and conclusions of law supporting the termination, which the court signed on creating a final, appealable judgment. this judgment on January 3, 2013. December 20, 2012, Father timely appealed After Father filed his notice of appeal, on January 9, 2013, the trial court denied Father s motion to set aside the termination ruling. Father did not, however, file a notice of appeal based on this ruling. ¶9 Given that Father s notice of appeal was filed before the court ruled on his motion to set aside the termination order, we lack jurisdiction to consider whether the court abused its discretion by denying his motion. See Lindsey v. Dempsey, 153 Ariz. 230, 235, 735 P.2d 840, 845 (App. 1987) ( Since the ruling of which Lindsey complains occurred after the entry of judgment and the filing of the notice jurisdiction to address it. ). of appeal, we do not have Thus, we do not have jurisdiction to consider whether the facts alleged in Father s motion to set 5 aside the termination order presented good cause for his failure to appear at the pretrial/termination hearing.4 ¶10 We do, however, have jurisdiction to consider whether the trial court abused its discretion by determining, based on the evidence presented at the pretrial/termination hearing, that there was no good cause for Father s absence and that Father had waived his rights by failing to appear. Further, based on A.R.S § 8-235(A), we also have jurisdiction to review the trial court s decision to terminate Father s parental rights. 4 Our review of the record reveals that the trial court simultaneously denied Father s motion to set aside and permitted Father s trial counsel to withdraw. Thus, Father was unrepresented by counsel from January 9 to January 14, for five of the fifteen days that were crucial for the preservation of his parental rights. See Ariz. R. Juv. Ct. 104 (explaining that a notice of appeal shall be filed with the clerk of the superior court no later than 15 days after the final order is filed with the clerk ). Nothing in our decision prevents Father s counsel from petitioning the trial court for an additional five days nunc pro tunc to file a notice of appeal from the order denying his motion to set aside the termination in the interests of equity and due process. See Bob H. v. Ariz. Dep t of Econ. Sec., 225 Ariz. 279, 283, ¶ 14, 237 P.3d 632, 636 (App. 2010) (explaining that a parent s right to counsel in a severance hearing is of a constitutional dimension and that judicial actions that result from the denial of such a right are void). See also Ariz. State Dep t of Pub. Welfare v. Barlow, 80 Ariz. 249, 253, 296 P.2d 298, 300 (1956) (explaining that the denial of counsel constitutes a denial of due process of law so gross as to lack a necessary attribute of a judicial determination ); A.R.S. § 8-221(B) ( If a juvenile, parent, or guardian is found to be indigent and entitled to counsel, the juvenile court shall appoint an attorney to represent the person or persons unless counsel for the juvenile is waived by both the juvenile and the parent or guardian. ). 6 Discussion ¶11 to We review a trial court's finding that a parent failed show good discretion. cause for failing to appear for the abuse of Adrian E. v. Ariz. Dep't of Econ. Sec., 215 Ariz. 96, 101, ¶ 15, 158 P.3d 225, 230 (App. 2007). review an evidence concerning an order In addition, we terminating parental rights in the light most favorable to affirming the trial court s order, and will affirm a termination order unless it is clearly erroneous. Michael J. v. Ariz. Dep. of Econ. Sec., 196 Ariz. 246, 250, ¶ 20, 995 P.2d 682, 686 (2000). ¶12 appear According to A.R.S. § 8-537(C), [i]f a parent does not at the pretrial conference, status conference or termination adjudication hearing, the court, after determining that the parent has been instructed as provided in [§] 8-535, 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. Similarly, Arizona Rule of Procedure of the Juvenile Court 66(D)(2) provides that a failure to appear may constitute a waiver of rights if a parent fails to appear at the termination adjudication hearing without good cause shown. In that instance, 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. Id. 7 ¶13 Based on the record presented at the pretrial/termination hearing,5 we are unable to conclude that the trial court abused its discretion in finding there was no good cause for Father s absence from the hearing and that Father had waived his parental rights pursuant to A.R.S. § 8-537(C). The record demonstrates that Father had been instructed as to the potential consequences of his failure to appear at least twice, and Father s existed for counsel presented Father s no failure argument to that good cause appear at the pretrial/termination hearing. ¶14 In addition, though not disputed evidence at the hearing supported termination. by Father, the The case worker testified that in her opinion, Father was unable to discharge his parental responsibilities due to chronic substance abuse and the fact that he had tested positive for methamphetamine in the past. She also explained that Father had been offered several services, including urinalysis testing, supervised visitation, substance abuse services, and parent aide services, but that he had missed 5 Because we do not have jurisdiction to consider the facts alleged in Father s motion to set aside the termination, on appeal we cannot consider the fact that Father was standing outside the courtroom during at least some of the hearing; this fact was unknown to the trial court at the time it made its finding regarding good cause. See Cella Barr Assocs., Inc. v. Cohen, 177 Ariz. 480, 487 n. 1, 868 P.2d 1063, 1070 n. 1 (App. 1994) (when reviewing trial court's decision we consider only evidence presented to the trial court and do not consider evidence provided in a subsequent motion for reconsideration). 8 months of urinalysis testing and that he had not completed his drug rehabilitation program through TERROS. She also stated that Father had been inconsistent with visits with the children, he had not maintained contact with the Department, and had not shown up to meetings children. related to behavioral issues of one of the The case worker confirmed that the children had been in an out-of-home placement for a cumulative total period of nine months and that Father had substantially neglected or willfully refused to remedy the circumstances that caused the out-of-home placement. Finally, she testified that in her opinion, severance and adoption was in the children s best interests. Conclusion ¶15 For the foregoing reasons, we affirm. /S/_____________________________ ANDREW W. GOULD, Presiding Judge CONCURRING: /S/_________________________________ MARGARET H. DOWNIE, Judge /S/_________________________________ PATRICIA A. OROZCO, Judge 9
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