                                                                  FILED BY CLERK
                          IN THE COURT OF APPEALS                    MAR 25 2008
                              STATE OF ARIZONA                        COURT OF APPEALS
                                DIVISION TWO                            DIVISION TWO




MANUEL M.,                                )
                                          )
                             Appellant,   )          2 CA-JV 2007-0071
                                          )          DEPARTMENT B
                  v.                      )
                                          )          OPINION
ARIZONA DEPARTMENT OF                     )
ECONOMIC SECURITY, LEILA M.,              )
and ALAYANA M.,                           )
                                          )
                             Appellees.   )
                                          )


           APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

                               Cause No. 17003500

                        Honorable Charles S. Sabalos, Judge

                                   AFFIRMED


Joan Spurney Caplan                                                          Tucson
                                                              Attorney for Appellant

Terry Goddard, Arizona Attorney General
 By Dawn R. Williams                                                         Tucson
                                                      Attorneys for Appellee Arizona
                                                    Department of Economic Security


E C K E R S T R O M, Presiding Judge.
¶1            Appellant Manuel M. appeals from the juvenile court’s order of August 13,

2007, terminating his parental rights to his five-year-old daughter, Leila, and his four-year-

old daughter, Alayana. Manuel challenges the constitutionality of Rule 66(D)(2), Ariz. R.

P. Juv. Ct., which provides the consequences for a parent’s failure to appear for scheduled

termination proceedings. He also contends the court erred by denying him an opportunity

to examine a case manager for Child Protective Services (CPS) and by considering

inadmissible evidence to conclude the Arizona Department of Economic Security (ADES)

had proven grounds for termination. After considering the record, applicable rules, and

arguments of the parties, we conclude that the court erred by denying Manuel the

opportunity to cross-examine the case manager concerning the sufficiency of the evidence

to support the grounds alleged for termination and abused its discretion in admitting

evidence without proper foundation. But we find these errors were harmless in the context

of this case. We therefore affirm the court’s termination order.1

¶2            Viewed in the light most favorable to affirming the juvenile court’s findings,

see In re Maricopa County Juv. Action No. JS-8490, 179 Ariz. 102, 106, 876 P.2d 1137,

1141 (1994), the evidence establishes the following. After investigating allegations that the

children’s mother, Melissa A., had engaged in domestic violence and substance abuse and



       1
       Manuel raises other issues that do not meet the criteria for publication. See Ariz. R.
Sup. Ct. 111(b); Ariz. R. Civ. App. P. 28(b). We address them in a separate,
contemporaneously filed memorandum decision. See Ariz. R. Sup. Ct. 111(h); Ariz. R. Civ.
App. P. 28(g).

                                              2
had left Leila and Alayana with their paternal grandmother “who drank daily to the point

of passing out,” did not care for the children, and did not feed them or have food in the

home, CPS took the girls into temporary custody in June 2004. ADES filed a dependency

petition on July 6, 2004.2

¶3             Manuel spent most of the next year incarcerated on drug-related charges and

convictions in Arizona and Illinois. According to reports filed by CPS case manager Joel

Williamson, while Manuel was in prison, CPS had encouraged him “to avail himself of any

programs offered to inmates that would address his substance abuse, parenting, and

individual counseling” needs. Although Manuel had submitted in September 2004 to a

psychological evaluation required by CPS, he had advised Williamson that he “had not had

the time to participate in . . . inmate services.”

¶4             At a dependency review hearing in February 2005, the juvenile court found

that neither Manuel nor Melissa was in compliance with the case plan and approved

concurrent case plan goals of family reunification and severance.3 At the court’s direction,

ADES filed a motion to terminate both parents’ rights but then agreed in May 2005 to



       2
        CPS initially investigated these allegations in September 2003. At that time, Melissa
had agreed to the appointment of a family friend, Jessica F., as guardian for the children.
In late June 2004, however, Jessica told CPS she was unable and unwilling to continue
caring for Leila and Alayana and demanded their immediate removal from her home.
       3
        Although the record does not indicate the children were ever formally adjudicated
dependent as to Manuel, he admitted their dependency and did not dispute the court’s later
finding that “the status of dependency continue[d] to exist.”

                                                3
continue the initial termination hearing to afford Melissa additional time to comply with the

case plan. When the hearing was held on October 28, 2005, the court found reunification

was the appropriate case plan goal, and ADES withdrew its motion for termination.

¶5            For Manuel, the reunification case plan called for him to resolve his legal

issues, participate in random urinalysis, comply with the recommendations from his

psychological evaluation, and maintain a safe home environment. Although he did not

participate in the plan until four months after his release from prison and was initially slow

to comply with its requirements related to his substance abuse, he was “very attentive to

[his] parenting education [program] and supervised visitation.”

¶6            By the time the juvenile court commenced another permanency hearing in June

2006, Manuel had been complying with random urinalysis more routinely, had been actively

participating in parenting classes and visitation, and had been interacting well with his

daughters. Although concerned about Manuel’s history of substance abuse and his failure

to participate in treatment, his CPS case manager opined, “The most appropriate plan for

Leila and Alayana . . . is reunification with their father. The father has maintained his

sobriety, is employed, and is demonstrating effective parenting skills with his daughters

during supervised parenting classes.” The court found Manuel to be in substantial

compliance with reunification services and gave ADES the discretion to increase Manuel’s

visitation, provided the girls’ therapists approved. Based on his improved performance, the




                                              4
court granted ADES authority to place the children with him, which it did on October 27,

2006.

¶7            Then, on February 9, 2007, as the juvenile court was taking the logistical steps,

with the approval of ADES, to dismiss the dependency proceeding, Manuel was arrested on

felony charges of possessing marijuana for sale. Before his arrest, Manuel had left his

daughters in the care of his mother, even though CPS had warned him that his mother could

not act as the children’s caretaker because she had previously been convicted of child

endangerment. After Manuel’s arrest, CPS returned the girls to the foster parents who had

cared for them from July 2004 until they were placed with Manuel in October 2006. The

foster parents have expressed their willingness to provide a permanent home for Leila and

Alayana.

¶8            Following Manuel’s arrest, the juvenile court held another permanency

hearing in May 2007 and changed the case plan goal to severance and adoption. ADES then

filed a motion to terminate Manuel’s parental rights based on the length of the girls’ court-

ordered, out-of-home placement and allegations that, as evidenced by his recent arrest,

Manuel had substantially neglected or wilfully refused to remedy the circumstances causing

their removal, A.R.S. § 8-533(B)(8)(a), or, alternatively, had been unable to remedy those




                                              5
circumstances and would likely be unable to parent the children in the near future, § 8-

533(B)(8)(b).4

¶9                 Manuel appeared at the initial termination hearing and entered a denial to the

allegations in the motion; the juvenile court admonished him “that failure to attend future

hearings without good cause shown may result [in] the hearing going forward in his absence

and the termination of his parental rights.” The court also provided Manuel with written

notice that, absent good cause, his failure to appear for a termination hearing—including “an

initial       hearing,   a   pretrial   conference,   a   status   conference   or   termination

adjudication”—could be deemed a waiver of his legal rights and an admission to the

allegations in the motion and could result in termination of his parental rights based on the

record and evidence.5 See Ariz. R. P. Juv. Ct. 64(C). The notice included the dates of the

scheduled hearings, including the pretrial conference set for July 24, 2007.

¶10                Manuel did not appear for the pretrial conference, and his attorney could not

explain his absence. The juvenile court found that Manuel had no good cause for failing to

appear at the hearing, that his absence was voluntary, that he therefore “waived all of his

rights,” and that “the allegations in the motion to terminate parental rights are deemed




       The juvenile court terminated Melissa’s parental rights to Leila and Alayana on
          4

July 17, 2007. Melissa did not appeal the order.

        Although the notice stated that the “right to a trial” was among the legal rights
          5

subject to waiver for a failure to appear, we find no authority in applicable rules or statutes
supporting this admonition.

                                                  6
admitted as to [him].” The court then proceeded with the termination hearing in Manuel’s

absence. During the hearing, the court admitted ADES’s exhibits over objections raised by

Manuel’s attorney and over objections that previously had been asserted in the pretrial

statement. Manuel’s attorney then sought to question Manuel’s current CPS case manager,

Glenn Dobbin, but when counsel began asking Dobbin about Manuel’s compliance with the

case plan, ADES objected, arguing Manuel had waived his right to examine the witness by

failing to appear.

¶11           In response, Manuel’s counsel argued that Rule 66(D)(2) “does not permit the

Court to proceed by default. There must be . . . some evidence presented to support . . . any

findings by the Court.” When the juvenile court suggested “[t]he evidence . . . could be and

is in all likelihood contained in the exhibits that were admitted,” Manuel’s counsel

responded, “I think the rule’s silent, but I believe that it’s clear that I could cross-examine

if I wish.”

¶12           When asked to provide an offer of proof, Manuel’s counsel replied that she

hoped to establish:

              That the children were found by the Court and by Mr. Dobbin,
              . . . that they could be safely returned to the father without a
              —without a risk of harm or substantial risk of harm and that
              accordingly they were. So that up until that time [of the
              January 2007 dependency review hearing] . . . there was no
              basis for a severance or even a dependency. . . . And the only
              thing that’s changed since then is that he’s been arrested and
              hasn’t been found guilty yet.



                                              7
The juvenile court reviewed its findings from the May permanency hearing and informed

Manuel’s counsel:

              I am exercising my discretion to decline your request to examine
              the caseworker because I’ve already found that your client has
              waived all of his legal rights by virtue of his failure to appear
              today, including the right to examine the witnesses. I’m going
              to consider all the exhibits and all the previous evidence that
              was admitted during the course of all these proceedings over
              your objection.

Manuel’s counsel responded, “Over my vehement objection.” The court then found that

ADES had proven the allegations in its motion, “specifically [the] length of time in care

pursuant to A.R.S. [§] 8-533(B)(8)(a) and (B)(8)(b),” by clear and convincing evidence and

that terminating Manuel’s parental rights was in the best interests of the children.

                                    Void for Vagueness

¶13           On appeal, Manuel argues that Rule 66(D)(2), the rule setting forth how a

juvenile court may proceed if a parent fails to appear at the termination adjudication hearing,

is unconstitutionally vague. Specifically, he complains Rule 66(D)(2) simultaneously

provides that a failure to appear constitutes an admission to the motion’s allegations and yet

requires the court to consider the record and evidence presented to determine whether

ADES has proven grounds for termination. According to Manuel, no proof would be

necessary if the allegations of the motion were deemed admitted, and the rule is therefore

“internally inconsistent.” He urges us to resolve this alleged ambiguity by nullifying the

portion of Rule 66(D)(2) providing that a parent’s “failure to appear may constitute . . . an


                                              8
admission to the allegation[s] contained in the motion,” because, he maintains, terminating

parental rights based only on a constructive admission, “without a showing that

[termination] is necessary or justified,” would violate a parent’s right to due process.

¶14           In pertinent part, Rule 66(D)(2) provides:

              If the court finds the parent . . . failed to appear at the
              termination adjudication hearing without good cause shown,
              had notice of the hearing, was properly served pursuant to Rule
              64 and had been previously admonished regarding the
              consequences of failure to appear, including a warning that the
              hearing could go forward in the absence of the parent . . . and
              that failure to appear may constitute a waiver of rights, and an
              admission to the allegation[s] contained in the motion or
              petition for termination, the court may terminate parental rights
              based upon the record and evidence presented if the moving
              party or petitioner has proven grounds upon which to terminate
              parental rights.

This rule establishes procedures to give effect to A.R.S. § 8-863(C), which similarly

provides:

              If a parent does not appear at the [termination adjudication]
              hearing, the court, after determining that the parent has been
              served as provided in subsection A of this section, may find that
              the parent has waived the parent’s legal rights and is deemed to
              have admitted the allegations of the petition by the failure to
              appear. The court may terminate the parent-child relationship
              as to a parent who does not appear based on the record and
              evidence presented as provided in rules prescribed by the
              supreme court.6


       6
       Section 8-863 and Rule 66(D)(2), which pertain to termination adjudication
hearings, are applicable to these proceedings even though the July 24, 2007, hearing that
Manuel failed to attend had originally been scheduled as a pretrial conference. The juvenile
court had “convert[ed the pretrial conference] to a termination hearing . . . because of

                                             9
See also § 8-537(C) (same for termination proceeding initiated by petition).7

¶15           As this court has stated,

              [a] statute is unconstitutionally vague if it fails to give “a person
              of ordinary intelligence a reasonable opportunity to know what
              is prohibited, so that he may act accordingly” or if it allows for
              arbitrary and discriminatory enforcement by failing to provide
              an objective standard for those who are charged with enforcing
              or applying the law.

In re Maricopa County Juv. Action No. JS-5209 & No. JS-4963, 143 Ariz. 178, 183, 692

P.2d 1027, 1032 (App. 1984), quoting Grayned v. City of Rockford, 408 U.S. 104, 108

(1972). Manuel does not argue that the provisions of Rule 66(D)(2), or the warnings

required by Rules 64(C) and 65(D)(3), Ariz. R. P. Juv. Ct., fail to apprise a parent that

failing to appear at one of the specified termination proceedings may have dire

consequences. Nor does he assert that Rule 66(D)(2) allows for arbitrary or discriminatory

enforcement against parents who absent themselves from proceedings.




[Manuel]’s failure to appear.” We have previously held that this procedure is implicitly
authorized by Rule 64(C), Ariz. R. P. Juv. Ct., which requires notification to a parent that
failure to appear at an initial termination hearing, pretrial conference, or status conference
could be deemed a waiver of the parent’s legal rights and a constructive admission to the
allegations in the termination motion. Adrian E. v. Ariz. Dep’t of Econ. Sec., 215 Ariz. 96,
¶¶ 8-9, 12, 158 P.3d 225, 228-29 (App. 2007), distinguishing Don L. v. Ariz. Dep’t of
Econ. Sec., 193 Ariz. 556, ¶ 8, 975 P.2d 146, 149 (App. 1998) (holding, under prior
statutes and rules, that no statute or rule authorized juvenile court to “default” parent for
failing to appear at status conference in termination proceedings).
       7
        In light of the consistency between these statutes and Rule 66(D)(2), we find no
merit in Manuel’s argument that the rule is contrary to statutory intent.

                                              10
¶16           And, although Manuel offers an interpretation of Rule 66(D)(2) that would

render one of its provisions at odds with another, his claim fails if any logical construction

can be placed on the language that harmonizes those provisions. See State v. Hansen, 215

Ariz. 287, ¶ 7, 160 P.3d 166, 168 (2007) (statutory construction principles applied to

interpret court rules); Maricopa County No. JS-5209, 143 Ariz. at 183, 692 P.2d at 1032

(statute “will not be held void for vagueness if any reasonable and practical construction can

be given to its language”).8 As discussed below, a reasonable and practical construction

emerges when we consider each provision of the rule in the context of the others. See

Medders v. Conlogue, 208 Ariz. 75, ¶ 10, 90 P.3d 1241, 1244 (App. 2004) (provisions of

court rule must be considered in context of entire rule and consideration given to all

provisions). Accordingly, we agree with ADES that Manuel has failed to establish that Rule

66(D)(2) is unconstitutionally vague.

              Right to Participation by Counsel at Termination Hearing

¶17           Manuel argues the juvenile court erred when it prohibited his counsel from

cross-examining the CPS case manager during the termination hearing that proceeded in

Manuel’s absence. He contends both the language of Rule 66(D)(2) and his fundamental


       8
         Manuel argues that it would violate due process to terminate his parental rights based
only on his constructive admission of the allegations in the motion for termination after he
failed to appear. We need not address this argument at any length because Rule 66(D)(2)
does not authorize such a procedure. Rather, although a parent’s failure to appear may
“constitute . . . an admission,” Rule 66(D)(2) also expressly requires that termination be
based on the “record and evidence presented if the moving party . . . has proven grounds
upon which to terminate parental rights.”

                                              11
constitutional rights entitled his counsel to conduct that examination. We agree that the

rule’s own language contemplates the participation of counsel to the extent sought by

Manuel’s counsel here.9

¶18           We review questions involving the interpretation of court rules de novo, and

we “evaluate procedural rules using principles of statutory construction, reading those rules

in conjunction with related statutes and harmonizing the two whenever possible” so as to

“avoid[] any unconstitutional construction.” Fragoso v. Fell, 210 Ariz. 427, ¶¶ 7, 13, 111

P.3d 1027, 1030, 1032 (App. 2005) (citation omitted). Furthermore, “[w]e interpret statutes

and rules in accordance with the intent of the drafters, and we look to the plain language of

the statute or rule as the best indicator of that intent.” Id. ¶ 7. If the language of a rule is

ambiguous, however, we may consider “a variety of elements, including the rule’s context,

the language used, the subject matter, the historical background, the effects and

consequences, and its spirit and purpose,” to determine the framers’ intent. State ex rel.

Romley v. Superior Court, 168 Ariz. 167, 169, 812 P.2d 985, 987 (1991).




       9
        For that reason, we do not address whether Manuel possessed any fundamental or
constitutional right that would have independently required the court to allow that
examination. See City of Tempe v. Outdoor Sys., Inc., 201 Ariz. 106, ¶ 7, 32 P.3d 31, 34
(App. 2001) (appellate court does not reach constitutional issue when matter can be decided
on nonconstitutional grounds). At any rate, we would be reluctant to reach the
constitutional aspect of this claim because Manuel did not meaningfully develop it in his
opening brief. See, e.g., Ariz. Libertarian Party v. Schmeral, 200 Ariz. 486, n.4, 28 P.3d
948, 953 n.4 (App. 2001) (not addressing free-speech issue when parties failed to develop
argument in briefs).

                                              12
¶19           As a threshold matter, the pertinent rules governing termination proceedings

contemplate that the parent is entitled to assistance of counsel, assistance which expressly

includes the right to have counsel secure the attendance of witnesses on the parent’s behalf

and cross-examine any adverse witnesses. See Ariz. R. P. Juv. Ct. 65(C)(2) and (5)

(requiring juvenile court to appoint counsel and advise parent of right to counsel, right to

cross-examine adverse witnesses, right to trial by court on termination motion,10 and right

to subpoena witnesses). Such rights to procedural due process may be waived, however, see

Arizona Department of Economic Security v. Redlon, 215 Ariz. 13, ¶ 9, 156 P.3d 430, 434

(App. 2007), and Rule 66(D)(2) states that a parent’s failure to appear at a termination

adjudication proceeding “may constitute a waiver of rights.”

¶20           But we can only find that a party has waived specific rights if the waiver has

been voluntary, knowing, and intelligent. Webb v. State ex rel. Ariz. Bd. of Med. Exam’rs,

202 Ariz. 555, ¶ 10, 48 P.3d 505, 508 (App. 2002). For that reason, a parent’s

nonappearance cannot constitute a constructive waiver of any rights that the parent has not

been specifically informed he or she could lose by failing to appear. See, e.g., Monica C.

v. Ariz. Dep’t of Econ. Sec., 211 Ariz. 89, ¶ 20, 118 P.3d 37, 41 (App. 2005) (general

notice that parent’s failure to appear might lead to waiver of legal rights insufficient to




        The “trial” to which a parent is entitled is the termination adjudication hearing, “an
       10

adjudicatory hearing in which the court determines whether the moving party . . . has met
the burden of proving grounds upon which to terminate parental rights and whether
termination is in the best interests of the child.” Ariz. R. P. Juv. Ct. 66(A).

                                             13
constitute waiver of specific right to jury trial); A.J. Bayless Markets, Inc. v. Indus. Comm’n,

134 Ariz. 243, 245, 655 P.2d 363, 365 (App. 1982) (waiver of fundamental right to cross-

examine requires clear showing of intent). To that end, Rule 66(D)(2) requires that the

parent has previously been admonished that the consequences of a failure to appear may be

deemed a waiver of specific legal rights, including “that the hearing could go forward in the

absence of the parent,” that the allegations in the petition may be deemed admitted, and that

the juvenile court may terminate parental rights “based upon the record and evidence

presented.” Because the rule does not specify that the parent also waives the right to

assistance of counsel by failing to appear and because waiver of that specific right could not

result without such a warning, we may infer that the framers of the rule did not contemplate

such a sanction.11

¶21           Other language in the rule supports this construction. The rule’s warning that

a “hearing” may go forward in the parent’s absence suggests that an ex parte determination

is not contemplated and that the parent, albeit personally absent, will have an opportunity

to be “heard.” Moreover, the rules provide that, in a termination proceeding, the parent will

have the right to representation by counsel and that such representation includes the right

to have counsel secure witnesses on the parent’s behalf and challenge any adverse witnesses


       11
         Manuel was provided warnings about various rights he risked waiving—warnings
that went beyond those required by the rule. But, here, where we are concerned about the
intent of the rule’s framers, the specific warnings Manuel received are not relevant to our
analysis. Nor does the state contend that, by that method, the juvenile court could provide
a parent fewer procedural rights than those contemplated by Rule 66(D)(2).

                                              14
through cross-examination. See Rule 65(C)(5) (itemizing right of parent to counsel and right

of parent to cross-examine and call witnesses). Each of those roles for counsel, as

contemplated by that rule, is an important component of the fact-finding process, intended

to enhance the accuracy of the juvenile court’s determinations. See Ariz. State Dep’t of

Pub. Welfare v. Barlow, 80 Ariz. 249, 253, 296 P.2d 298, 300 (1956) (“hearing” in custody

proceeding necessarily includes right to be represented by counsel); In re Maricopa County

Juv. Action No. JD-561, 131 Ariz. 25, 28, 638 P.2d 692, 695 (1981) (“adversary process

is subverted and made meaningless” without opportunity to test reliability of witnesses

through cross-examination); Monica C., 211 Ariz. 89, ¶¶ 26-27, 118 P.3d at 43 (termination

hearing sufficient when it included representation by counsel, cross-examination, and

opportunity to present evidence and argument); see also Black’s Law Dictionary 852 (4th

rev. ed. 1968) (hearing defined as “[p]roceeding of relative formality . . . with definite issues

of fact or of law to be tried, in which parties proceeded against have right to be heard”). Had

the supreme court intended to dispense with the traditional and salutary roles of counsel as

to a determination of such magnitude, we believe it would have said so expressly.

¶22           Moreover, the admonition required by Rule 66(D)(2) makes clear that the

potential consequences of the parent’s failure to appear are discretionary with the court

rather than mandatory: the parent is advised that the termination proceedings “could” go

forward in the parent’s absence, that the failure to appear “may” constitute a waiver of rights

and an admission to the allegations. See Rule 66(D)(2). The discretionary nature of those


                                               15
determinations, coupled with the absence of any language suggesting the court may make

them ex parte, suggests an implicit role for parent’s counsel in persuading the court to refrain

from imposing some or all of those consequences.

¶23           Finally, as discussed below, a parent’s failure to appear does not relieve the

juvenile court of its obligation to assess the “record and evidence” presented and to

determine whether the state has proven a statutory ground for termination by clear and

convincing evidence—actions that could be enhanced by adversarial participation. In light

of the fact that Rule 66(D)(2) contemplates there will be some form of adjudicatory hearing,

the salutary role of counsel at such hearings, and the absence of any specific admonition or

other notice to the parent that counsel’s participation would be forfeited or foreclosed in the

parent’s absence, we conclude that, in promulgating Rule 66(D)(2), the supreme court did

not intend to deprive parents who fail to appear at a termination proceeding of their right to

the assistance of counsel at that hearing.

               Scope of Attorney Participation at Termination Hearing

¶24           In any legal proceeding, the scope of counsel’s participation is necessarily

confined to the relevant topics to be addressed. See Ariz. R. Evid. (implicitly confining

counsel’s role in presenting information and conducting cross-examination to relevant and

admissible topics). Thus, the scope of counsel’s participation in a termination hearing held

pursuant to Rule 66(D)(2) is no broader than the scope of such hearings as set forth in the

rule. That rule authorizes the juvenile court to construe the parent’s absence as “an


                                              16
admission to the allegation contained in the motion or petition for termination.” When the

court has chosen to do so, the parent’s attorney may no longer contest the “allegation[s]”

in the petition because the truth of those allegations is no longer in dispute.

¶25           To resolve Manuel’s claim, however, we must also determine the scope of the

parent’s “admission to the allegation[s]” under the rule. As exemplified in this case, the

allegations in a motion or petition for termination can include both factual assertions and

more general conclusions of law. See Ariz. R. P. Juv. Ct. 64(A) (requiring motion for

termination of parental rights to include “grounds for termination”); § 8-533(B) (itemizing

legal grounds that sufficient evidence must support to justify termination). Here, the record

demonstrates that Manuel’s counsel sought to cross-examine the case manager not to contest

the factual assertions but rather to draw attention to other facts that would address

(1) whether the evidence supported the legal conclusion that Manuel was an unfit parent

and (2) whether the best interests of the children would justify termination of his parental

rights. Therefore, we must determine whether the rule contemplates that, by failing to

appear, a parent admits the legal conclusions urged by the motion or petition, or whether

the parent admits only the specific factual assertions contained therein.

¶26           The other portions of Rule 66(D) assist us in resolving that question.

Although the rule does not directly define the scope of a parent’s admission to an allegation,

it clarifies that such an admission cannot, standing alone, support the termination of the

parent’s rights. Notwithstanding the language in the rule allowing the court to deem the


                                             17
allegations of the motion admitted, the rule provides that the court may terminate a parent’s

rights only if the petitioner or moving party has “proven grounds” for termination “based

upon the record and evidence presented.”

¶27           This requirement—that there be evidence meeting a standard of proof in

support of the grounds alleged—mandates more than a cursory review of the record for a

“factual basis.” Significantly, Rule 66(D)(1)(c) provides that such a cursory review is

sufficient when a parent admits the allegation of a petition or motion in person. See Ariz.

R. P. Juv. Ct. 66(D)(1)(c) (when parent enters oral admission, juvenile court need only

“determine whether factual basis exists” to support termination). From this, we can

confidently conclude that Rule 66(D)(2) contemplates something different—and more

rigorous—when it employs different language to more carefully describe the juvenile court’s

fact-finding duties when, as here, a parent has admitted allegations by failing to appear. See

State v. Jennings, 150 Ariz. 90, 93, 722 P.2d 258, 261 (1986) (if drafter had intended

language found in one provision to apply to related provision, it could have employed same

language in both). Notably, the rule’s requirement that grounds be proven by the moving

party is the rule’s only major deviation from the text of the statute that the rule was designed

to facilitate.12 We assume the supreme court chose this language intentionally and was

aware of the implications of doing so.


       12
         We do not suggest that the language added by the supreme court is inconsistent with
the statute. Indeed, § 8-863(C) specifically invites the supreme court to prescribe procedural
rules to apply the statute’s terms.

                                              18
¶28           In sum, although the rule provides that a parent’s failure to appear may be

construed as a constructive admission to the allegations of a motion or petition, the

contemplated scope of those admissions must be understood in the context of the rule’s

other provisions. See State v. Hansen, 215 Ariz. 287, ¶ 7, 160 P.3d 166, 168 (2007)

(principles of statutory construction used to interpret court rules); State v. Wagstaff, 164

Ariz. 485, 491, 794 P.2d 118, 124 (1990) (“We strive to construe a statute and its

subsections as a consistent and harmonious whole.”). That language imposes a duty on the

juvenile court to determine whether the grounds for termination have been proven by the

record and evidence—a process that would become unnecessary if we construed a parent’s

failure to appear as a wholesale admission to the legal grounds contained in the allegations.

See State v. Bonnell, 171 Ariz. 435, 437, 831 P.2d 434, 436 (App. 1992) (appellate court

required to avoid interpretation of rule provision that would render another meaningless).13

Thus, when we read the pertinent language relating to a parent’s constructive admissions so

as to harmonize it with the express requirements for a termination hearing set forth in that


       13
           And, because we cannot read one provision to render another redundant or
superfluous, we clarify that the state’s burden to independently prove the allegations, as
expressly required by the rule, exists regardless of whether the allegations have been deemed
admitted by the parent. Such a construction safeguards the interests of the child in an
accurate determination of whether the parental relationship should be terminated, an interest
that persists even when a parent has failed to appear for a hearing. See Ariz. R. P. Juv. Ct.
36 (“The rules should be interpreted in a manner designed to protect the best interests of the
child . . . .”). It is also consistent with the approach set forth in Rule 66(D)(1). Even under
the relaxed standard applied there for a parent’s in person admissions, the rule requires the
juvenile court to determine independently whether a “factual basis exists” to support those
admissions to the allegations. See Ariz. R. P. Juv. Ct. 66(D)(1)(c).

                                              19
subsection of the rule, we conclude that the parent admits only the factual contentions

contained in the motion. The parent does not thereby concede that those factual allegations

sustain the quantum of evidence required to establish the legal grounds for terminating a

parent’s rights. Rather, the determination of whether the evidence, including admissions,

establishes clearly and convincingly at least one ground for terminating a parent’s rights

remains a relevant and contestable topic at the hearing.14

¶29           Division One of this court has reached a similar, although not identical,

conclusion. In Christy A. v. Arizona Department of Economic Security, 217 Ariz. 299, ¶¶

7-8, 33, 173 P.3d 463, 467, 472 (App. 2007), the court remanded the severance case for

rehearing after the juvenile court prohibited the mother or her attorney from attending the

second day of a termination adjudication hearing, based on a “default” that had been entered

after the mother failed to appear on the first day of the hearing. The appellate court

concluded:

              [I]n light of a parent’s fundamental parenting interest, we hold
              the entry of default or, more properly stated, a finding of waiver
              of rights, precludes [the mother] from affirmatively presenting
              testimony or other documentary evidence to contest the
              statutory bases for termination, but the requirement of fair
              procedures mandates giving [the mother] the opportunity to
              remain in the courtroom and participate. That right of
              participation includes cross-examination of ADES’s witnesses
              ....




       14
        During oral argument, the state did not dispute this interpretation of the rule.

                                             20
Id. ¶ 24. In holding the mother’s right to participate in the hearing would be “limited,” the

court in Christy A. found guidance in “established case law concerning the entry of default

judgments.” Id. ¶¶ 16, 23, 29.

¶30           Like Division One in Christy A., we also find some guidance in cases

addressing the effect of an entry of default under Rule 55, Ariz. R. Civ. P. As explained in

the context of Rule 55:

              A default is not treated as an absolute confession by the
              defendant of his liability and of the plaintiff’s right to recover.
              All well-pleaded facts are admitted by a default, Postal Ben.
              Ins. Co. v. Johnson, 64 Ariz. 25, 165 P.2d 173 (1946), but the
              defendant is not held to admit facts that are not well-pleaded or
              to admit conclusions of law.

S. Ariz. Sch. for Boys, Inc. v. Chery, 119 Ariz. 277, 281-82, 580 P.2d 738, 742-43 (App.

1978); Moran v. Moran, 188 Ariz. 139, 146, 933 P.2d 1207, 1214 (App. 1996) (same;

court properly declined default judgment where unsupported by law). Thus, our courts have

construed the effect of an admission by default in the context of our civil rules of procedure

consistently with our interpretation of Rule 66(D)(2)—that factual allegations are deemed

admitted but legal conclusions are not.

¶31           In reaching our conclusion, based wholly on our construction of Rule

66(D)(2), we disagree with Christy A. to the extent it could be read to preclude a parent’s

counsel from “contest[ing] the statutory bases for termination” and from presenting

affirmative evidence to do so. 217 Ariz. 299, ¶ 24, 173 P.3d at 470. We can find no

language in the rule supporting either prohibition. As we have stated, the rule requires that

                                              21
there be sufficient support for terminating a parent’s rights. Nor does any language in the

rule address the ways in which an attorney may participate at the “default” termination

hearing. And we cannot assume that the rule’s implicit limitation of the relevant scope of

the hearing necessarily requires any limitation in the traditional means of attorney

participation, a topic on which the rule is silent.15

¶32           Applying the above analysis here, Manuel’s counsel was entitled to participate

in the termination hearing to the extent that participation fell within the scope of the

contested issues at the proceeding. The truth of the factual allegations contained in the

motion was not a contested issue because the juvenile court found Manuel had admitted

these allegations by failing to appear for the hearing. However, Rule 66(D)(2) also required

the court to determine whether those factual allegations, coupled with the record and

evidence presented, proved the grounds for termination alleged in the motion. Manuel’s

counsel was therefore entitled to elicit evidence in support of Manuel’s contention that the


       15
         Our opinion differs from Christy A. in approach as well. In Christy A., the court
found a parent’s fundamental right to due process in the severance proceeding included the
right to have counsel participate. 217 Ariz. 299, ¶¶ 28-29, 173 P.3d at 471. But due
process rights may be waived, see Arizona Department of Economic Security v. Redlon,
215 Ariz. 13, ¶ 9, 156 P.3d 430, 434 (App. 2007), and Christy A. does not address whether
the notice and admonition to the parent contemplated by Rule 66(D)(2), coupled with the
parent’s failure to appear, constitute a valid waiver of the specific rights addressed in Christy
A. We have herein addressed the waiver question only to the extent it informs the supreme
court’s intent in drafting Rule 66(D)(2) and do not suggest that Christy A. has necessarily
imposed an unjustified due process overlay on the rule. See Monica C. v. Ariz. Dep’t of
Econ. Sec., 211 Ariz. 89, ¶ 20, 118 P. 3d 37, 41 (App. 2005) (general notice to parent that
failure to appear might lead to waiver of legal rights insufficient to constitute waiver of
specific right to jury trial).

                                               22
factual allegations, albeit true, did not justify such a finding.        Because the record

demonstrates that Manuel’s counsel did not seek to examine the CPS case manager to

contest the factual assertions in the motion but rather to emphasize other evidence suggesting

that the factual allegations were insufficient to prove the grounds for termination, the court

erred in precluding that examination.16

¶33           However, we also find this error harmless. See Monica C., 211 Ariz. 89, ¶ 22,

118 P.3d at 42 (harmless error review appropriate for violation of procedural rule). Through

counsel, Manuel had argued passionately that his arrest, standing alone, should not be the

basis for terminating his parental rights in light of his improved efforts to provide a fit home

for his children during the course of the dependency. Manuel’s counsel sought to examine

the case manager to elicit such facts—and to emphasize that the state had drawn conclusions

and taken actions that implicitly acknowledged Manuel’s fitness as a parent. But the record

and the evidence ADES presented at the hearing included each of those facts, and the

juvenile court was therefore well aware of the procedural history of the case. Thus, the

record before us demonstrates that the court was fully aware of, and properly considered,


       16
          We recognize that allegations stated in motions to terminate may be, and often are,
phrased to assert mixed questions of law and fact. For this reason, we acknowledge that
enforcing the precise boundaries of appropriate attorney participation will require the
juvenile court to exercise sound judgment when analyzing the distinction between a factual
allegation and a legal conclusion based thereon. But we can find no further guidance in the
rule for a more specific standard, and it is the province of our supreme court to amend or
clarify the rule if it feels such further guidance in necessary. See Bergeron ex rel. Perez v.
O’Neil, 205 Ariz. 640, ¶ 28, 74 P.3d 952, 962 (App. 2003) (domain of supreme court to
supplement or supercede its procedural rules).

                                              23
all of the information Manuel’s counsel sought to present when seeking leave to examine

the case manager.

                                 Admission of Exhibits

¶34           Manuel next maintains the juvenile court erred by admitting exhibits into

evidence without supporting testimony. Relying on our decision in Adrian E. v. Arizona

Department of Economic Security, 215 Ariz. 96, ¶ 23, 158 P.3d 225, 231-32 (App. 2007),

the state maintains that, because its exhibits had been admitted at previous hearings, they

were part of the record upon which the court could base its findings. Although the court

failed to adhere to the rules of evidence in admitting one of ADES’s exhibits, we agree with

ADES that, pursuant to Adrian E., those exhibits that had been duly admitted at prior

hearings were part of the record and thus properly considered by the court.17

¶35           However, the court erred in admitting and considering exhibit 21, apparently

a portion of a Pima County Sheriff’s Department incident report describing the

circumstances of Manuel’s arrest in February 2007. Although the report was admitted at

the permanency hearing in May 2007 and therefore, as ADES argues, was also part of the

record subject to the juvenile court’s review, Manuel objected to its admission at both the




        Although Manuel suggested at oral argument that the “record,” undefined by Rule
       17

66(D)(2), should not include these documents, he did not raise this issue in his briefs. We
therefore will not consider it. See Van Loan v. Van Loan, 116 Ariz. 272, 274, 569 P.2d
214, 216 (1977).

                                            24
May permanency hearing and the termination adjudication hearing on the ground that it

lacked foundation.18

¶36           We agree with Manuel that the juvenile court abused its discretion in admitting

the sheriff’s incident report without requiring evidence of its authenticity, as it does not

appear to be a self-authenticating document under Rule 902, Ariz. R. Evid. See Ariz. R.

Evid. 901(a) (requiring authentication as condition precedent to admissibility); Ariz. R. P.

Juv. Ct. 45(A) (applicability of Arizona Rules of Evidence to dependency and termination

proceedings). Nonetheless, we find no prejudice resulting from the admission of this report.

Although it provides details of Manuel’s arrest not found in any other document in the

record, a CPS case manager’s report of February 13, 2007, admitted at the permanency

hearing and again at the termination adjudication hearing, stated the nature of the charges

against Manuel as well as the effect of Manuel’s arrest on his children, who had been left

for several days with an unauthorized caretaker as a result. In light of this and other

evidence in the case, we cannot conclude the court would have ruled any differently if the

sheriff’s incident report had not been admitted. See Brown v. U.S. Fid. & Guar. Co., 194

Ariz. 85, ¶ 7, 977 P.2d 807, 810 (App. 1998).




        This court previously declined to accept jurisdiction of Manuel’s petition for special
       18

action challenging the juvenile court’s permanency order. See Manuel M. v. Sabalos, No.
2 CA-SA 2007-0059 (order filed July 18, 2007). We take judicial notice of the transcript
of the May 4 permanency hearing submitted as an appendix to that special action petition.

                                             25
                                        Conclusion

¶37           Although we find the juvenile court erred in admitting evidence without proper

foundation and in denying Manuel’s counsel an opportunity to cross-examine a CPS case

manager about the sufficiency of the evidence to support the grounds alleged for termination,

we conclude these errors were harmless. For the foregoing reasons, as well as those stated

in our separate memorandum decision, we affirm the juvenile court’s order terminating

Manuel’s parental rights.



                                               ____________________________________
                                               PETER J. ECKERSTROM, Presiding Judge

CONCURRING:



_____________________________________
PHILIP G. ESPINOSA, Judge



_____________________________________
GARYE L. VÁSQUEZ, Judge




                                             26
