severance hearing in Arizona

2023Sec., 224 Ariz. 373, 379, ¶ 29 (App. 2010) (“Father’s temporary abstinence from drugs and alcohol does not outweigh his significant history of abuse or his consistent inability to abstain during this case.”); see also Jennifer S. v. Dep’t of Child Safety, 240 Ariz. 282, 288, ¶ 25 (App. 2016) (“Although Mother made efforts to achieve and maintain sobriety in the months immediately preceding the severance hearing, [they do] not outweigh her significant history of drug abuse or her demonstrated inability to remain sober during much of the case.”) On this record, Mother has shown no error. ¶21 Bec

2020Raymond F., 224 Ariz. at 379, ¶ 29 (“It is not the number of times that [the parent] has tested positive or negative for drug abuse that is key, but rather, it is the fact that [the parent] has consistently failed to abstain from drugs . . . .”); see also Jennifer S., 240 Ariz. at 288, ¶ 25 (concluding a parent’s “efforts to achieve and maintain sobriety in the months immediately preceding the severance hearing . . . d[id] not outweigh her significant history of drug abuse or her demonstrated inability to remain sober during much of the case”).

2024Action No. JS-501568, 177 Ariz. 571, 577 (App. 1994) (noting that parent’s “successful efforts at rehabilitation in the eight months prior to the severance hearing[,] . . . while commendable, were ‘too little, too late’”). ¶25 Nor does the record support Mother’s claim that the court disregarded her love for L.C. in determining L.C.’s best interests.

2024Action No. JS-501568, 177 Ariz. 571, 577 (App. 1994) (affirming termination and determining that parent’s “successful efforts at rehabilitation in the eight months prior to the severance hearing[,] . . . while commendable, were ‘too little, too late’”). ¶24 Father did not claim to have followed DCS’s recommendation that he participate in anger management treatment, and evidence presented at the termination hearing made clear that his anger issues persist.

2016See id. ¶14 Finally, Father argues that he is a minimally adequate parent, and that DCS acknowledged as much during the severance hearing.

2013Sec., 203 Ariz. 278, ¶ 4 , 53 P.3d 203, 205 (App. 2002). ¶ 3 The record and the evidence presented at the severance hearing established that this family, which had included four children who are not the subject of this appeal — AR., P.R., M.R., and B.R. — and their mother Juana M., 1 had a lengthy involvement with ADES and Child Protective Services (CPS), a division of ADES.

2023Sec., 224 Ariz. 373, 379, ¶ 29 (App. 2010) (“Father’s temporary abstinence from drugs and alcohol does not outweigh his significant history of abuse or his consistent inability to abstain during this case.”); see also Jennifer S. v. Dep’t of Child Safety, 240 Ariz. 282, 288, ¶ 25 (App. 2016) (“Although Mother made efforts to achieve and maintain sobriety in the months immediately preceding the severance hearing, [they do] not outweigh her significant history of drug abuse or her demonstrated inability to remain sober during much of the case.”) On this record, Mother has shown no error. ¶21 Bec

2020Raymond F., 224 Ariz. at 379, ¶ 29 (“It is not the number of times that [the parent] has tested positive or negative for drug abuse that is key, but rather, it is the fact that [the parent] has consistently failed to abstain from drugs . . . .”); see also Jennifer S., 240 Ariz. at 288, ¶ 25 (concluding a parent’s “efforts to achieve and maintain sobriety in the months immediately preceding the severance hearing . . . d[id] not outweigh her significant history of drug abuse or her demonstrated inability to remain sober during much of the case”).

2019Thus, Rule 46(E), by reference to Civil Rule 60(b) and as interpreted by this Court, includes a meritorious defense requirement. ¶19 Consistent with Rule 46(E) and the caselaw governing Civil Rule 60(b), Christy A. held that a parent who fails to appear at a final severance hearing must show "good cause" for the nonappearance and a meritorious defense to the severance grounds to set aside a "default" judgment entered under Rule 66(D)(2). 217 Ariz. at 304 ¶ 16, 173 P.3d at 468 .

2019Thus, Rule 46(E), by reference to Civil Rule 60(b) and as interpreted by this Court, includes a meritorious defense requirement. ¶19 Consistent with Rule 46(E) and the caselaw governing Civil Rule 60(b), Christy A. held that a parent who fails to appear at a final severance hearing must show "good cause" for the nonappearance and a meritorious defense to the severance grounds to set aside a "default" judgment entered under Rule 66(D)(2). 217 Ariz. at 304 ¶ 16, 173 P.3d at 468 .

2019See Michael J, 196 Ariz. at 252 (“availability of another parent to provide a normal home life”) (emphasis added). ¶13 Father also argues he was scheduled to “be released within months” of the severance hearing because of his presumptive early release.

2017Sec., 196 Ariz. 246, 251, ¶ 27 (2000) (holding if reasonable evidence supports termination on any one statutory ground, the appellate court need not consider challenges pertaining to other grounds). ¶7 At the severance hearing, the DCS case manager testified that at the outset of this case DCS offered Father urinalysis testing, parent aid services, transportation, and a psychological consultation and evaluation.

2012In deciding the contours of what is constitutionally required, the court must balance the parent’s interest against the child’s interest in having the permanency and stability of a “normal family home.” Kent K., 210 Ariz. at 286, ¶ 34 , 110 P.3d at 1020 . ¶ 17 Although Arizona appellate courts have not addressed whether the juvenile court must stay a severance hearing until an incompetent parent is restored to competency, we are guided by decisions issued outside the state.

2012In deciding the contours of what is constitutionally required, the court must balance the parent’s interest against the child’s interest in having the permanency and stability of a “normal family home.” Kent K., 210 Ariz. at 286, ¶ 34 , 110 P.3d at 1020 . ¶ 17 Although Arizona appellate courts have not addressed whether the juvenile court must stay a severance hearing until an incompetent parent is restored to competency, we are guided by decisions issued outside the state.

2024Sec., 234 Ariz. 174 , 178-79 ¶ 16 (App. 2014) (when a parent fails to raise DCS’s diligence in providing reunification services in the superior court, he or she waives it). ¶22 DCS’s argument fails because Father raised concerns with his video visits during (1) the report and review hearing in July 2023, (2) the initial severance hearing in October 2023, and (3) the pre-trial hearing in November 2023.

2018Sec., 234 Ariz. 174, 179, ¶ 16 (App. 2014). ¶11 During the severance hearing, Mother raised issues related to caseworker turnover, caseworkers not returning her calls, and a lack of transportation assistance as issues that affected the services she was provided, which led her to seek services on her own.

2017DISCUSSION ¶8 A parent’s right to custody and control of his own child is fundamental, Santosky v. Kramer, 455 U.S. 745, 753 (1982), but not absolute, 2 When Father had a valid medical marijuana card is unclear, but the DCS case manager testified Father’s card had expired by the time of the severance hearing. 3 We cite to the current version of statutes unless changes material to this decision have occurred. 3 DARREN G. v. DCS, et al.

2016Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 24 , 110 P.3d 1013, 1018 (2005) (citing Santosky v. Kramer, 455 U.S. 745, 753 , 102 S.Ct. 1388 , 71 L.Ed.2d 599 (1982); Michael J. v. Ariz. Dep’t of Econ.

2015Sec., 215 Ariz. 96 , 98 n.3, ¶ 5 (App. 2007). ¶9 At an evidentiary hearing addressing the reason for her nonappearance at trial, Mother testified that she had been told to appear in Kingman, that all of the other hearings in her case had been in Kingman, and that she had in fact gone to the Kingman courthouse for the severance hearing.

2014Sec., 215 Ariz. 96, 101, ¶ 15 , 158 P.3d 225, 230 (App. 2007) (internal quotations and citation omitted). ¶12 The juvenile court may proceed with a severance hearing by default if a parent fails to appear at the hearing without good cause after having been notified of the hearing and the consequences of a failure to 4 In the minute entry denying Mother’s motion, the juvenile court stated that the initial severance hearing was held August 27, 2013 however; the record indicates the hearing was August 22. 5 Because Mother did not file a supplemental brief, we will only consider the arguments pres

2025At the severance hearing, testimony regarding A.A. established she was adoptable and expressed a desire “to stay where she[ ] has a home.” See Audra T. v. Dep’t of Econ Sec., 194 Ariz. 376, 377, ¶ 5 (App. 1998) (adoption is a factor favoring severance); see also Alma S., 245 Ariz. at 151, ¶ 14 (when a child’s current placement satisfies her needs and adoption is legally feasible and probable, a juvenile court may determine that terminating parental rights to allow for adoption is in the child’s best interests).

2017Sec., 194 Ariz. 376, 377, ¶ 5 , 982 P.2d 1290, 1291 (App. 1998).

2022See No. JS-6520, 157 Ariz. at 245 .

1994See Maricopa County Juvenile Action No. JS-6520, 157 Ariz. at 240 , 756 P.2d at 337 .

2018Sec., 207 Ariz. 43, 50, ¶ 18 (App. 2004) (“rehabilitative measures on the part of ADES would have been futile in remedying the cause for Appellant’s inability to discharge parental responsibilities by the time of the severance hearing.”). ¶10 Although not an express requirement of the statute, this court has held the State likewise must prove it offered reunification services to a parent whose rights it seeks to sever on grounds of mental illness or chronic substance abuse, including alcohol.

2017Sec., 207 Ariz. 43, 50, ¶ 19 , 83 P.3d 43, 50 (App. 2004). ¶12 As noted above, at the time of the severance hearing in October 2016, mother was expected to be away from G.M. and T.M. for approximately another year, after being incarcerated since November 2015.

2018Servs., 452 U.S. 18, 24 (1981) (finding the key to whether a severance hearing comports with a parent’s due process rights is whether the severance procedures are fundamentally fair).12 ¶24 As previously recognized, a parent has an interest in the “companionship, care, custody and management of his or her children.” Lassiter, 452 U.S. at 27 (quoting Stanley v. Illinois, 405 U.S. 645, 651 (1972)).

2018Id. at 27 (quoting Stanley, 405 U.S. at 651 ). ¶25 In Lassiter, the United States Supreme Court utilized a sliding scale approach to determine the extent of a parent’s due process rights— weighing the relative strength of a parent’s interests against the State’s interests and the risk of an erroneous outcome—before concluding that the State did not violate a parent’s due process rights by failing to provide a parent with counsel at a severance hearing.

2017At the time of the hearing, Mother had not completed substance-abuse treatment, and would not complete her program for at least five months.7 See Marina P. v. ADES, 214 Ariz. 326, 330, ¶ 22 (App. 2007) (we review the circumstances as they exist at the time of the severance hearing).

2016See Marina P., 214 Ariz. at 330, ¶ 22 . ¶15 Additionally, the record contains evidence of Father’s temper and inability to maintain emotional stability.

2017Sec., 218 Ariz. 205, 213, ¶ 28 (App. 2008) (holding that when a parent fails to appear at a severance hearing, he “admits only the factual contentions contained in the motion”).

2015Sec., 218 Ariz. 205, 212, ¶ 23 (App. 2008); Adrian E. v. Ariz. Dep’t of Econ.

2008Action No. JS-8287, 171 Ariz. 104, 111 , 828 P.2d 1245, 1252 (App.1991), quoting In re Pima County Sev.

2008Action No. JS-8287, 171 Ariz. 104, 111 , 828 P.2d 1245, 1252 (App.1991), quoting In re Pima County Sev.

2024“A juvenile court’s drawing a negative inference when a parent fails to testify at a severance hearing is particularly appropriate.” Melissa W., 238 Ariz. at 117 ¶ 6.

2024Indeed, Melissa W. wrote that “[a] juvenile court’s drawing a negative inference when a parent fails to testify at a severance hearing is particularly appropriate,” adding that there is “little benefit in adopting an approach that would permit a parent to forgo, without consequence, testifying about his or her ability to parent or about other circumstances relevant to the court’s determination.” 238 Ariz. at 117 ¶ 6.

2022“A meritorious defense must be established by facts and cannot be established through conclusions, assumptions or affidavits based on other than personal knowledge.” Id. at 304-05, ¶ 16 (quoting Richas, 133 Ariz. at 517 ). ¶11 At the severance hearing, the court found that legal service had been properly accomplished by publication and through alternative means, by directing the filings and orders to Father by email and first-class mail.

2016Richas, 133 Ariz. at 517 . ¶16 Kelly argues that she had good cause for her failure to appear because she was not endorsed on the minute entry from the initial severance hearing containing the telephonic appearance phone number.

2018The Department “is not required,” however, “to provide “every conceivable service or to ensure that a parent participates in each service it offers.” Id. ¶15 The Department does not dispute that it failed to present Parents’ TASC results for June, July, and August at the severance hearing.

2014Rather, ADES must provide the parent with services as well as “the time and opportunity to participate in programs designed to help her to become an effective parent.” Id. ¶20 At the severance hearing, ADES presented evidence of the long history of extensive services it provided to Mother to improve her 6 DESIRAE M. v. ADES, L.M.

2026Ct. 353(f). “[A] parent seeking to set aside a severance judgment entered after failing to appear at a final severance hearing . . . must show good cause for the nonappearance and a meritorious defense.” Trish A. v. Dep’t of Child Safety, 247 Ariz. 84, 89, ¶ 19 (2019) (citation modified). ¶9 To prove good cause, Mother must show “mistake, inadvertence, surprise or excusable neglect.” Christy A. v. Ariz. Dep’t of Econ.

2024The supreme court held in Trisha A. that “a parent seeking to set aside a severance judgment entered after failing to appear at the final severance hearing . . . must show ‘good cause’ for the nonappearance and a meritorious defense.” Id. at 89 ¶ 19.

2018In its severance order, the court found that the parents’ testimony would have aided the court in understanding the efforts the parents took to overcome their substance dependency and to better care for the children.7 In the absence severance, we need not address claims pertaining to the other grounds.” (citation omitted)). 7 On appeal Father argues only that (1) the juvenile court misapplied Melissa W. because the court did not notify him, prior to the close of the hearing, as to what evidence the court was lacking; and (2) because the court failed to properly apply the three-part test adopte

2015See Liguori, 182 Ariz. at 236 , 895 P.2d at 527 . ¶8 Melissa’s argument, however, focuses on the third factor—whether the witness can offer unique testimony about a particular fact.

2017Marianne N., 2017 WL 4228661 , at *6, ¶ 25. ¶7 The juvenile court “retains full discretion to assess ‘what constitutes good cause for failure to appear,’ and to apply that discretion at the severance hearing as it deems proper.” Brenda D., 242 Ariz. at 156 , ¶ 18 3 LINDSAY A., ANDREW W. v. DCS, et al.

2017“The superior court retains full discretion to assess ‘what constitutes good cause for failure to appear,’ and to apply that discretion at the severance hearing as it deems proper.” Brenda D. v. Dep’t of Child Safety, 242 Ariz. 150, 156, ¶ 18 (App. 2017) (citation omitted).

2020Sec., 230 Ariz. 339, 345, ¶ 19 (App. 2012) (quoting Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed.Reg. 67,584, 67,594 (Nov. 26, 1979)). ¶31 The juvenile court noted Mother failed to object to the children’s placement prior to the severance hearing, and found Mother waived the right to argue against the placement decisions.

2020Severance Action No. S- 114487, 179 Ariz. 86, 97 (1994)). ¶16 At the severance hearing, the court heard from both parents.

2020See Dominique M. v. Dep't of Child Safety, 240 Ariz. 96, 98-99, ¶ 12 (App. 2016). ¶48 The superior court found that although Mother and Father love H.N., maintaining a parent-child relationship would be detrimental to H.N. because "there are simply no reasonable prospects of reunification of [her] and parents at any time in the foreseeable future" and further reunification attempts would delay "permanency [for H.N.] that has been delayed for much, much too long." Reasonable evidence, including much of that recounted above, supports these findings. ¶49 At the severance hearing, Goodman emphasiz

2019Joshua J., 230 Ariz. at 424, ¶ 24 . ¶13 Here, Father has not demonstrated any prejudice from the superior court's failure to hold a severance hearing separate from the dependency hearing nor from its failure to hold a dependency hearing within the statutory time.

2019Sec., 193 Ariz. 185, 186, 192, ¶¶ 1, 34 (App. 1999) (In dependency based on mental-health grounds, State must offer reunification services even though statute does not expressly require it.).