Opinion
No. 1 CA-JV 12-0005
05-31-2012
MICHAEL C., Appellant, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, CHAYTON C., ESPERANZA C., Appellees.
Christina Phillips, Maricopa County Public Advocate By Suzanne Sanchez, Deputy Public Advocate Mesa Thomas C. Horne, Attorney General By Carol A. Salvati, Assistant Attorney General Attorney for Arizona Department of Economic Security Phoenix
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
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(Not for Publication -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. JD508073
The Honorable Kirby D. Kongable, Judge Pro Tempore
AFFIRMED
Christina Phillips, Maricopa County Public Advocate
By Suzanne Sanchez, Deputy Public Advocate
Mesa
Thomas C. Horne, Attorney General
By Carol A. Salvati, Assistant Attorney General
Attorney for Arizona Department of Economic Security
Phoenix GEMMILL, Judge
¶1 Michael C. ("Father") appeals from the order terminating his parental rights to his two children, C.C. and E.C. (collectively the "children"). For the following reasons, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 Siblings C.C. and E.C. were born to Mother, Danielle S. ("Mother") and Father (collectively the "parents") in 2002 and in 2006, respectively.
¶3 The children lived with their parents until the summer of 2009. On August 10, 2009, the Department of Economic Security ("ADES") submitted a petition for dependency and a motion for pickup of minor children. ADES alleged that the parents refused to cooperate with ADES regarding the safety of their children, engaged in domestic violence, and engaged in substance abuse. On August 12, 2009, C.C. was placed in foster care. Because of the parents' initial refusal to disclose E.C.'s location, she was placed in foster care approximately one week later.
¶4 On August 31, 2009, upon ADES's recommendation, the juvenile court ordered the children returned to parents' physical custody. Additionally, ADES offered parents the following services: family and individual counseling, substance abuse assessment/treatment, substance abuse testing, and anger management counseling (Father only).
¶5 On February 25, 2010, ADES again took temporary custody of the children because Mother allegedly felt that she might harm them. Several weeks later, on March 8, 2010, the juvenile court found that the children should remain in foster care, but allowed for parental visitation. The juvenile court ordered the implementation of a family reunification plan.
¶6 On December 29, 2010, ADES filed a motion to suspend Father's visitation of the children on the recommendation of the children's therapist. The therapist stated that the children disclosed that Father had touched them inappropriately. Father's alleged actions resulted in negative behavioral changes in the children. The therapist observed that C.C. exhibited symptoms of "anger, sadness, aggressiveness, lack of boundaries, and touching other children at school" and E.C. displayed "anxiety, mood changes, wetting, anger and aggressiveness, [and] nightmares." On January 3, 2011, the juvenile court granted ADES's request to suspend Father's visitation with both children.
¶7 On October 21, 2011, ADES moved to terminate both Mother and Father's parental rights to the children under Arizona Revised Statute ("A.R.S.") § 8-533 (Supp. 2011). The juvenile court scheduled the initial severance hearing for November 9, 2011. At the initial severance hearing, Mother appeared in person and contested the termination of her parental rights. The juvenile court accepted Mother's denial and scheduled mediation and pretrial proceedings.
We cite to the current version of the applicable statute because no revisions material to this decision have since occurred.
¶8 Father failed to appear in person at the initial severance hearing. His counsel, however, was present and permitted to participate in the hearing. Because Father had received notice of the initial severance hearing and did not appear, the juvenile court proceeded to conduct the severance hearing in absentia as to Father. The juvenile court, after considering all the evidence, including the testimony of the Child Protective Services unit supervisor and the Report to the Juvenile Court for Permanency Hearing, found that severance as to Father was appropriate. The court found by clear and convincing evidence the statutory grounds for severance under A.R.S. § 8-533 (B)(8)(c) and also A.R.S. § 8-533(B)(11). In addition, the court found by a preponderance of the evidence that termination of Father's parental rights was in the best interest of the children to facilitate adoption.
¶9 On November 28, 2011, Father filed a motion to reconsider and set aside severance finding with the juvenile court. Father requested that the juvenile court consider his malfunctioning mobile phone as good cause for his failure to appear at the severance hearing. The juvenile court denied Father's motion to reconsider, finding that Father failed to show good cause for his failure to appear at the severance hearing.
¶10 Father timely appealed. This court has jurisdiction pursuant to A.R.S. §§ 8-235 (2007), 12-120.21 (A)(1) (2003), and 12-2101 (A)(1) (Supp. 2011).
ANALYSIS
¶11 On appeal, Father argues three issues. First, Father argues that the juvenile court erred because it did not find that Father demonstrated good cause by excusable neglect for not attending the initial severance hearing. Second, Father argues that the juvenile court improperly proceeded with the initial severance hearing in absentia. Third, Father argues that the juvenile court's finding that parental termination was in the best interest of the children was clearly erroneous.
I. Good Cause by Excusable Neglect
¶12 Father argues that the juvenile court erred by finding that he failed to show good cause for his non-attendance at the hearing. We disagree.
¶13 The juvenile court has considerable discretion in determining whether good cause exists for a party's failure to appear. Adrian E. v. Ariz. Dep't of Econ. Sec., 215 Ariz. 96, 101, ¶ 15, 158 P.3d 225, 230 (App. 2007). We review the juvenile court's finding regarding good cause for an abuse of discretion. Id. Reversal of the juvenile court requires, in general, a finding that the use of discretion was "manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons." Id. (quoting Lashonda M. v. Ariz. Dep't of Econ. Sec. , 210 Ariz. 77, 83, ¶ 19, 107 P.3d 923, 929 (App. 2005).
¶14 Furthermore, good cause is defined as "mistake, inadvertence, surprise or excusable neglect." Christy A. v. Ariz. Dep't of Econ. Sec., 217 Ariz. 299, 304, ¶ 16, 173 P.3d 463, 468 (App. 2007). A finding of "excusable neglect" is appropriate when a situation "is such as might be the act of a reasonably prudent person in the same circumstances." Id. (quoting Ulibarri v. Gerstenberger, 178 Ariz. 151; 163, 871 P.2d 698, 710 (App.1993)).
¶15 Father contends that he intended to attend the severance hearing and entered the hearing date into the electronic calendar in his mobile phone. He further alleges that his mobile phone malfunctioned, preventing him from accessing his electronic calendar, and therefore resulting in his failure to appear at the severance hearing. According to Father's attorney, Father claimed his phone was malfunctioning for approximately one week prior to the date of the severance hearing.
¶16 Father argues that he established good cause by excusable neglect. Father cites Coconino Pulp & Paper Co. v. Marvin, 83 Ariz. 117, 317 P.2d 550 (1957), in support of his claim of excusable neglect. There, our supreme court held that an attorney's failure to appear due to a scheduling mistake by the attorney's secretary satisfied excusable neglect. Id. Father compares his malfunctioning electronic calendar to the secretarial calendaring error in Coconino.
¶17 We do not find Coconino analogous to Father's situation. In that case, the Court stated that "absent some showing of inefficiency or undependability of the secretary, the attorneys should be justified in assuming that they will be properly informed concerning the status of their cases." Coconino Pulp & Paper Co. , 83 Ariz. at 121, 317 P.2d at 552. In contrast, Father became aware that his mobile phone was undependable because Father acknowledges that the mobile phone was broken for at least one week before the date of the severance hearing. This factual record supports the juvenile court's determination that Father did not establish excusable neglect, and we conclude that the juvenile's court's denial of Father's motion for reconsideration was not an abuse of discretion.
II. Severance Hearing Continued In Absentia
¶18 Second, Father argues that the juvenile court improperly proceeded with the severance hearing in absentia because it failed to determine both, whether Father had demonstrated good cause and whether under the circumstances, Father had waived his legal rights by his failure to appear. We disagree.
¶19 The juvenile court may proceed in absentia if it finds (1) the parent fails to show good cause for his or her failure to appear, (2) the parent has been properly served notice of the termination proceedings, and (3) the parent has been previously warned regarding the consequences for the failure to appear. A.R.S. § 8-535 (D) (2007); Ariz. R.P. Juv. Ct. 65 (C)(6)(c). We review the juvenile court's decision to conduct the severance hearing in absentia for an abuse of discretion. Christy A., 217 Ariz. at 305, ¶ 19, 173 P.3d at 467. These three requirements for proceeding in absentia were satisfied here.
¶20 Here, Father had notice of the severance hearing and, in fact, Father was present when the juvenile court scheduled the initial severance hearing. Also, Father had previously been warned on multiple occasions that his failure to appear at scheduled hearings could result in the termination of his parental rights. Finally, in conjunction with considering Father's motion for reconsideration, the juvenile court found that Father's broken cell phone did not demonstrate good cause for his failure to appear at the initial severance hearing.
¶21 In support of his argument, Father cites Christy A. v. Ariz. Dep't of Econ. Sec., 217 Ariz. 304, ¶14, 173 P.3d 463, 468 (App. 2007) and argues that the juvenile court must first determine whether good cause existed for Father's failure to appear and then determine whether under the circumstances Father's failure to appear constituted a "waiver of rights," before conducting the severance hearing in absentia.
¶22 We are not persuaded because Father misapplies this court's statement in Christy. In Christy, the court clarified that a severance hearing conducted in absentia is not a "default" hearing, but rather involves a "waiver of rights" caused by the parent's failure to appear without a showing of good cause. Christy A. , 217 Ariz. at 304, ¶ 14, 173 P.3d at 468. Nothing in Christy A, nor in the applicable statutes and rules, requires the court to make any further record or do any more than was done here.
¶23 We conclude that the juvenile court did not abuse its discretion in finding that Father failed to show good cause and in denying the motion for reconsideration.
III. Best Interests of the Children
¶24 Third, Father argues that the juvenile court committed legal error because its finding that termination was in the best interests of the children was clearly erroneous. We conclude, initially, that Father has waived this issue on appeal. We further conclude that, even if the issue is not waived, Father's argument is without merit.
ADES argues, based on the totality of the evidence, that the detriment to the children if severance is not granted supports a finding that the termination of Father's parental rights are in the best interests of the children. We conclude that no such finding was made by the juvenile court and we will not imply such a finding.
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A. Issue Waived on Appeal
¶25 We generally do not consider issues raised for the first time on appeal. Canyon Ambulatory Surgery Ctr. v. SCF Arizona, 225 Ariz. 414, 418 n.11, ¶ 10, 239 P.3d 733, 743 n.11 (App. 2010); Englert v. Carondelet Health Network, 199 Ariz. 21, 26, ¶ 13, 13 P.3d 763, 768 (App. 2000); but see Reid v. Reid, 222 Ariz. 204, 208 , ¶16, 213 P.3d 353, 357 (App. 2009) (acknowledging that the "waiver rule" is procedural and we have discretion to not find waiver in appropriate instances).
¶26 Here, the juvenile court ruled that termination of Father's parental rights was appropriate under A.R.S. § 8-533 based on the fulfillment of two statutory grounds and a finding regarding the best interests of the children. Specifically, the juvenile court found that the best interests of the children were served by terminating Father's parental rights because the children were adoptable.
¶27 Father argues that the juvenile court's finding that termination was in the best interests of the children because children were adoptable was improper because Mother's continued parental rights prevents any adoption from occurring. Father had the opportunity to present this issue during closing arguments at the severance hearing and again in his motion to reconsider. Because Father failed to argue this issue at the appropriate opportunities, the trial court did not have the opportunity to address the issue or further explain the best interests finding. On this record, we conclude that the issue is waived on appeal.
B. Argument is without merit
¶28 Even assuming that Father's issue was not waived, we are not persuaded by his argument that the juvenile court's finding of best interests due to adoptability was improper because Mother's parental rights prevent adoption from occurring. This argument requires the assumption that Father's parental rights are somehow dependent on Mother's parental rights. But this is not correct. The Rules of Procedure for the Juvenile Court provide termination procedures for a single "parent, guardian or Indian custodian." See generally Ariz. R.P. Juv. Ct. 64 (C); 65(A); 66(D)(1). The Rules permit separate proceedings as to Mother and Father's parental rights and it is not uncommon for the parental rights of one parent to be severed before the rights of the other parent have been adjudicated. It was appropriate for the juvenile court to consider the advantages of potential adoption, including stability and permanency, with respect to Father, in determining the best interests of the children. We find no error in the juvenile court deciding Father's case as a distinct matter from Mother's ongoing proceedings.
CONCLUSION
¶29 For the forgoing reasons, we affirm the juvenile court's order terminating Michael C.'s parental rights to C.C. and E.C.
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JOHN C. GEMMILL, Presiding Judge
CONCURRING:
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PETER B. SWANN, Judge
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ANDREW W. GOULD, Judge