Failing to Appear for a Child Custody Hearing in Arizona

The Arizona Court of Appeals, Division One, examines in Brenda D. v. Department of Child Safety (DCS), Z.D.(minor child),(2017), whether a parent’s 25 minute tardiness to a juvenile court parental termination hearing constitutes a “failure to appear” within the meaning of Arizona Revised Statutes (“A.R.S.”) section 8-863(C) and Arizona Rule of Juvenile Procedure 66(D)(2) for a Juvenile Court parental rights termination case.

The Facts of the Case

In this case, the parent did appear in court, but was 25 minutes late without good cause. The Department of Child Safety (DCS) argued this should be considered “failure to appear” and requested the court continue with severance of Mother’s parental rights. The higher court ruled that there was no requirement in the statute that the parent be “timely” to satisfy the act of being present for the hearing, so therefore it was not considered by the court to be “failure to appear” on the part of the parent.

The higher court also confronts and resolves the issue of whether the lower court ‘improperly restricted a parent’s counsel’s participation at the hearing, and violated the parent’s right to be heard (i.e. due process rights) by refusing to allow the parent to testify because of that parent’s [25 minute] tardiness. The higher court ruled that, because of the restriction placed on counsel prior to the parent’s arrival, and the lower court’s refusal to allow the parent to testify based on a tardy arrival, that parent’s constitutional rights to be heard, were violated. This resulted in the Appellate Court reversing and remanding the case to the lower court for further proceedings.

The facts of this case were succinctly stated by the higher court. The facts of this case were that Brenda D. (“Mother”), the biological parent of Z.D., born in July 2005. Z.D. was born with Down Syndrome, and has permanent special needs. In July 2014, the DCS filed a petition alleging Z.D. dependent due to Mother’s neglect, unstable home, and mental illness. Z.D. was pronounced dependent as to Mother in May 2015.

In October 2015, DCS filed a motion to terminate the parent-child relationship between Z.D. and Z.D’s mother. Mother was not present when the hearing began and given her absence and the lack of an explanation, the lower court found Mother lacked good cause for her absence. The court then advised the parties, that Mother’s counsel ONLY had an opportunity to address the “weight of the evidence”, not the admissibility of the evidence.

DCS called a department case manager to testify. After the direct examination, the lower court gave Mother’s counsel limited opportunity to cross-examine the case manager, reminding counsel he was limited to the ‘weight of the evidence.’ Mother arrived 25 minutes after the hearing started, but prior to the close of DCS’s case. The lower court denied Mother’s request to testify, and found Mother failed to appear at the start of the hearing without good cause.

The lower court found grounds for severance proven by clear and convincing evidence, and terminated Mother’s parental rights. The court also found the severance was in Z.D.’s best interests. There was discussion about the rights of parents to raise their child without government intervention unless the parent is unable to parent. There was also a study of the three pertinent statutes involving “failure to appear” and the lack of terminology referring to “appearance in a timely manner”.

The Holding of the Case

None of those statutes were found to be relevant since the terminology is vague and merely suggests that the court “may find” the parent who does not appear at the hearing…”has waived his/her legal rights and is deemed to have admitted the allegations of the petition.” The court retains full discretion to assess what constitutes good cause for “failure to appear”, however; the higher court ruled that if a parent appears before the close of the hearing, by the time both parties have presented their case, that parent’s “right to be heard” cannot be violated by restricting the parent’s participation.

The court also ruled that in the case of a parent’s failure to appear until after both parties have fully presented their cases, the court may treat the parent’s absence as a waiver of the parent’s legal rights. In regards to the complaint that Mother’s counsel was unable to object to the admission of evidence, the higher court agreed.

Due to the lower court’s ruling that Mother’s attorney could only address the “weight of the evidence”, Mother’s attorney could not effectively participate in the severance hearing. It was found that the court abused its discretion in limiting Mother’s council’s participation and thus denying Mother a fair trial.

In this case, it was found that Mother did not delay the hearing or request an extension to accommodate her late arrival, which caused no harm to the court, or DCS. Therefore, the Superior Court could have reasonably allowed Mother to testify and her attorney to participate and present evidence. Consequently, Mother’s case is referred back to the lower Superior Court to follow the instructions and holdings of the Appellate Court.

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