VERONICA A. 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 VERONICA A., ) ) Appellant, ) ) v. ) ) ARIZONA DEPARTMENT OF ECONOMIC ) SECURITY, Y.F., L.B., L.B., I.B., ) ) Appellees. ) ) __________________________________) DIVISION ONE FILED: 4/23/2013 RUTH A. WILLINGHAM, CLERK BY: mjt 1 CA-JV 12-0244 DEPARTMENT E MEMORANDUM DECISION (Not for Publication 103(G), Ariz. R.P. Juv. Ct.; Rule 28, ARCAP) Appeal from the Superior Court in Yuma County Cause Nos. S1400JD201100357, S1400JD201100358 S1400JD201100359 and S1400JD201200353 The Honorable Kathryn E. Stocking-Tate, Judge Pro Tempore AFFIRMED Terri L. Capozzi, Attorney at Law Attorney for Appellant Yuma Thomas C. Horne, Attorney General Phoenix by Amanda Holguin, Assistant Attorney General Mesa Attorneys for Appellee Arizona Department of Economic Security P O R T L E Y, Judge ¶1 Veronica A. ( Mother ) appeals from the terminating her parental rights to her four children. reasons that follow, we affirm. order For the FACTS AND PROCEDURAL HISTORY ¶2 After receiving methamphetamine, the reports Arizona that Department Mother of ( ADES ) removed the children in July 2011. was abusing Economic Security The children were found to be dependent and services were offered to Mother to attempt family reunification. the Mother, however, failed to fully participate in treatment. In fact, she gave birth to two children who were substance-exposed services, after particularly services were in substance abuse place. ADES successfully had the permanency plan modified to termination and adoption, and moved to terminate her parental rights for neglect, a history of chronic substance abuse, and out-of-home placement for nine months or longer. ¶3 At the contested severance hearing, counsel made an oral motion to withdraw and continue the trial date. She told the court that she was unable to effectively represent Mother because Mother did not stay in contact with her. The court placed Mother under oath and questioned her about the alleged lack of communication. During the questioning, the court, without objection, asked Mother if she had been using drugs in the weeks leading up to the trial. After Mother s answer, counsel s motions were denied. ¶4 Just before ADES called Mother as its first witness, counsel asked for a brief recess so that Mother could compose 2 herself. Mother failed to return after the recess and, after the court took testimony, her parental rights were terminated in absentia. 1 Arizona We have jurisdiction over her appeal pursuant to Revised Statutes ( A.R.S. ) sections 8-235(A), 12-2101(A)(1), and -2101(B) (West 2013). DISCUSSION ¶5 Mother contends that her due violated at the severance hearing. process rights were Specifically, she argues that both the court and her attorney failed to advise her of her Fifth Amendment 2 right against self-incrimination and, after the court s questions about her drug use, she believed she had no other options than flight. was denied hearing. the opportunity As a result, she argues that she to remain We review the issue de novo. and participate in the State v. Harrod, 218 Ariz. 268, 279, ¶ 38, 183 P.3d 519, 530 (2008). ¶6 The right against self-incrimination extends to all proceedings, civil or criminal, when the answer to a question put to a witness may tend to incriminate him in future criminal proceedings. State v. Carvajal, 147 Ariz. 307, 310, 709 P.2d 1366, 1370 (App. 1985); see also Castro v. Ballesteros-Suarez, 1 The court also terminated the parental rights of the children s biological father. He is not a party to this appeal. 2 The Fifth Amendment of the U.S. Constitution provides, in relevant part, that no person shall be compelled in any criminal case to be a witness against himself. U.S. Const. amend. V. 3 222 Ariz. 48, 53, ¶ 20, 213 P.3d 197, 202 (App. 2009). In severance proceedings, the right against self-incrimination is self-executing[;] that is, it does not have to be expressly raised . . . where the individual is deprived of his free choice to admit, to deny, or refuse to answer. Minh T. v. Ariz. Dep t of Econ. Sec., 202 Ariz. 76, 79, ¶ 13, 41 P.3d 614, 617 (App. 2001) (internal quotation marks omitted). ¶7 to Here, the court did not need to put Mother under oath determine whether she had contact with her lawyer. an excuse for not staying in The court only needed to determine whether she had an excuse that may have required granting a short continuance. For example, the court could have asked whether she had been in an accident, had been hospitalized or was in jail matters that could have prevented Mother from easily contacting her lawyer in anticipation of the severance trial. ¶8 Moreover, the court should not have asked Mother the questions about her recent drug use under oath without advising her of her Fifth Amendment rights against self-incrimination because her answers to those questions could be used against her in future criminal proceedings. questions about her drug By requiring her to answer the use, Mother s Fifth Amendment rights. at 310, 709 P.2d at 1370 the clearly violated See, e.g., Carvajal, 147 Ariz. (reasoning 4 court that the trial court violated defendant s Fifth Amendment rights when, during a probation revocation hearing, it required defendant to testify regarding misrepresentations he made to the court regarding restitution). ¶9 Although Mother s Fifth Amendment rights were violated by the court, Mother has failed to show any prejudice warranting a new severance trial. After she failed to return from the recess, required ADES was still to prove that there was a statutory basis for termination and that termination was in the children s best interests. ADES put on its evidence and counsel was given the opportunity to cross-examine the four witnesses and challenge exhibits. The court subsequently found Mother had a long history of substance abuse; she that: admitted to ADES that she was using drugs during her pregnancy; and she tested positive for methamphetamine completing her treatment program. only two weeks after The court also found from the evidence presented at the trial that her condition was likely to continue for a prolonged indeterminate period, and she had failed to remedy the circumstances that caused her children to be in out-of-home placements for over nine months despite being provided with Accordingly, services the court designed to determined help by reunify clear and the family. convincing evidence that there were two statutory bases for the termination and that termination was in the best interests of the children. 5 Because the court did not use any statements Mother made in response to the court s questions, and Mother does not dispute the factual findings or conclusions of law, the error in this case was harmless. ¶10 Although Mother argues that she felt compelled to flee after being questioned by the court, there is no factual basis for her argument. 3 Mother was told at various stages of the proceedings that if she failed to appear her parental rights could be terminated in her absence. Because she voluntarily chose not to return after the recess and her disclosure about her drug use was not considered by the court in making its determination, we find no reversible error here. CONCLUSION ¶11 Based on the foregoing, we affirm the termination of Mother s parental rights. /s/ _____________________________ MAURICE PORTLEY, Judge CONCURRING: /s/ ___________________________________ MARGARET H. DOWNIE, Presiding Judge /s/ ___________________________________ PHILIP HALL, Judge 3 An affidavit from Mother was submitted with her opening brief. Because we only review matters in the record on appeal, we will not consider the affidavit. 6

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