Patricia B. v. ADES, Oscar L.
Annotate this Case
Download PDF
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 PATRICIA B., ) ) Appellant, ) ) v. ) ) ARIZONA DEPARTMENT OF ECONOMIC ) SECURITY, OSCAR L., ) ) Appellees. ) ) __________________________________) DIVISION ONE FILED: 08-10-2010 PHILIP G. URRY,CLERK BY: DN No. 1 CA-JV 10-0037 DEPARTMENT A MEMORANDUM DECISION (Not for Publication 103(G) Ariz.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. JD 16018 The Honorable Samuel A. Thumma, Judge AFFIRMED Robert D. Rosanelli, Attorney for Appellant Phoenix Terry Goddard, Arizona Attorney General By Eric Devany, Assistant Attorney General Attorneys for Appellee Arizona Department of Economic Security Mesa D O W N I E, Judge ¶1 Patricia B. ( Mother ) appeals the juvenile court s order terminating her parental rights to her son ( the child ). For the reasons that follow, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 In August 2007, the Arizona Department of Economic Services ( ADES ) learned that Mother had given birth and that both she cocaine, and her son tested and marijuana. positive Mother for methamphetamine, admitted using illegal substances up to three times a week throughout her pregnancy. After Mother was discharged, she did not return to see child, who remained hospitalized another twelve days. the Because Mother could not be located, the child was placed with ADES. ¶3 related Soon thereafter, violation of Mother probation. was arrested ADES filed for a a drug- dependency petition, alleging Mother was unable to parent due to substance abuse and mental illness. Mother ultimately submitted the issue of dependency to the court, and the child was found dependant as to her on January 4, 2008. ¶4 affirmed At the a September case plan 2008 of hearing, family with counseling, the case substance plan, abuse juvenile reunification. released from prison on October 16, 2008. compliant the including programming, Mother was She was initially urinalysis and testing, parent services, including supervised visits with the child. 2 court aide Mother last visited the child on January 13, 2009. By February 2009, she had ceased contact with all service providers. ¶5 crack On April 15, 2009, Mother was arrested for selling cocaine. adoption. The case plan was changed to severance and On May 27, 2009, Mother pleaded guilty to possession of narcotic drugs and was sentenced to two-and-a-half years in prison. That same day, ADES filed a motion to terminate Mother s parental rights. ¶6 At a hearing on September 17, 2009, both parents appeared telephonically and were represented by counsel. The court the was severance. advised that neither parent wished to contest Mother explained her decision as follows: I don t want to keep fighting this because it s too hard on me. I need to move on with my life. I need to -- I have kids that need me out there still. And I can t keep on putting myself through this pain. It s too much for me. And I love my son and I love his daddy, but I can t do this. I m too weak to do it. ¶7 Thereafter, the court read the following rights to the parents: As a parent, your legal rights include the right to counsel. The right to trial by the Court on the allegations and the motion to terminate. The right to cross-examine witnesses who are called to testify against you. The right to use the process of this court to compel the attend to witnesses. [sic] And the right to request that any hearing be closed to the public. You are required to appear for all termination 3 hearings. If you cannot attend a hearing, you must prove to the Court that you did not appear for good cause. If you fail to attend a hearing without good cause, the Court may find that you waived your legal rights. The Court also may find that you admitted the allegations in the motion for termination. The hearing may go forward in your absence. And the Court terminate [sic] your parental rights to your child based on the record and evidence presented. It will presumed [sic] that you understand the contents of this notice unless you tell the Court today that you do not understand those rights. ¶8 The court then posed specific questions to Mother. It confirmed, inter alia, that she was not under the influence of any substance that would affect her ability to make this decision and that she had had ample opportunity to speak with her attorney. When it became apparent that Mother did not fully understand she was not guaranteed to receive pictures of her son after severance, the court declared a recess so she could speak further with her lawyer. After the recess, Mother acknowledged she had discussed the issue with her counsel, understood there was no guarantee of pictures, and that her decision result in no further contact of any sort with [her] child. court and Mother had the following colloquy: THE COURT: By your decision, you ll be giving up the following rights: to a trial on the allegations in the motion to terminate, to have your attorney confront and question people who might testify against you, to call people to testify on your own behalf and use the Court s power to 4 could The bring them to court to testify even if they didn t want to, to request that any termination hearing be closed to the public. Do you understand that by your decision, there will be no trial as to you on the motion to terminate and you ll be giving up those rights? [MOTHER]: Yes. THE COURT: Your decision likely will result in termination of your parental rights. Do you understand that? [MOTHER]: Yes. . . . . [THE COURT]: . . . [Y]our decision could result in no further contact of any sort with your child. Do you understand that? [MOTHER]: Yeah. [THE COURT]: Okay. Has anyone forced you or threatened you in any way to get you to make this decision? [MOTHER]: No. [THE COURT]: Has anyone promised you anything to get you to make this decision? [MOTHER]: No. ¶9 The court found that Mother had knowingly, intelligently, and voluntarily waived her rights and that she understood the possible consequences of her decision to not contest the motion to terminate. In keeping with the court s stated custom, it gave Mother and her counsel the choice of remaining or leaving the hearing. 5 Mother s attorney opted to remain, but Mother chose not to further participate and was excused. ¶10 Thereafter, during a similar colloquy, Father decided to contest the severance. A severance trial as to him was set for October 30, 2009, with the court indicating it would hear evidence regarding both parents at that time. Addressing Mother s counsel, the court stated: [A]s I read the case law, given that Mother has consented, your presence is not required. If she was defaulted, I would view it very differently. But as I read the case law, the mother s counsel is not required. other Counsel view it differently[?] I think that s right. think she s response. here. ¶11 Counsel for ADES replied, I think she can be here. required. Mother s Do counsel said But I don t nothing in The court told Mother s counsel, Happy to have you But I ll leave that to you. At the counsel appeared. October 30 hearing, neither Mother nor her The court received testimony from the case manager and found grounds for terminating Mother s rights based on [s]ubstance abuse, nine months time in care, and fifteen months time in care. On November 12, 2009, the court issued a written order terminating Mother s parental rights pursuant to Arizona Revised Statutes ( A.R.S. ) (8)(a), (b) (Supp. 2009). 6 sections 8-533(B)(3) and ¶12 Although Mother filed an untimely notice of appeal, the juvenile court found the delay was the result of excusable neglect. We have jurisdiction over this appeal pursuant to A.R.S. §§ 8-235 (2007), 12-120.21 (2003), and -2101(B) (2003). DISCUSSION ¶13 Mother contends the juvenile court denied her due process by conducting an evidentiary hearing on the Motion for Termination of Parent-Child Relationship in the absence of [her] counsel. She bases her argument on Christy A. v. Ariz. Dep t of Econ. Sec., 217 Ariz. 299, 306, ¶ 22, 173 P.3d 463, 470 (App. 2007)- a case we find readily distinguishable. ¶14 In Christy A., a default was entered when the mother failed to appear at a hearing, and her counsel withdrew. 303, ¶ 7, 173 P.3d at 467. Id. at At a later hearing, the mother appeared without counsel and sought to set aside the default. Id. at ¶ 8. The court denied her counsel for the hearing, ordered the mother to leave the courtroom, and proceeded to hear evidence. rights. Id. Id. It thereafter terminated the mother s parental We reversed, holding that, although the default precluded the mother from affirmatively presenting evidence, due process mandated that she be given an opportunity to remain in the courtroom and participate, and to have the representation of counsel at that hearing. Id. at 306-07, ¶¶ 24, 29, 173 P.3d at 470-71. 7 ¶15 This is not a default case. Mother expressly waived her right to contest termination of her parental rights, to have her counsel attendance Juvenile cross-examine of witnesses. Court 66(D)(1) witnesses, Arizona states and Rule that a of to compel Procedure parent may the for the waive the right to trial on the allegations contained in the motion or petition for termination of parental rights by admission or not contesting the allegations, provided that the court determines: (1) the parent understands the rights being waived; (2) the decision is knowingly, intelligently, and voluntarily made; and (3) a factual basis exists to support the termination. ¶16 The juvenile court fully complied with Rule 66. It informed Mother of her rights and independently determined that she understood those rights and was waiving them knowingly, intelligently, and voluntarily. Mother or her counsel from The court did not preclude attending the severance trial. Indeed, Mother concedes the court gave her counsel the option of attending the evidentiary hearing. Moreover, any arguable error would be harmless. Mother does not challenge the factual bases order. for the severance Nor does she challenge the finding that termination was in the child s best interests. 1 1 Mother admitted at the September 17 hearing that the child is in a good adoptive placement and that the adoptive mother really loves the child. 8 CONCLUSION ¶17 For the reasons stated, we affirm. /s/ MARGARET H. DOWNIE, Judge CONCURRING: /s/ PETER B. SWANN, Presiding Judge /s/ LAWRENCE F. WINTHROP, Judge 9
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
