                                  IN THE
             ARIZONA COURT OF APPEALS
                               DIVISION ONE


                           TRISHA A., Appellant,

                                      v.

        DEPARTMENT OF CHILD SAFETY, L.A., L.A., Appellees.

                            No. 1 CA-JV 17-0126
                              FILED 6-14-2018


           Appeal from the Superior Court in Maricopa County
                             No. JD529230
               The Honorable Arthur T. Anderson, Judge

                      VACATED AND REMANDED


                                 COUNSEL

David W. Bell Attorney at Law, Higley
By David W. Bell
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By JoAnn Falgout
Counsel for Appellee Department of Child Safety
                           TRISHA A. v. DCS, et al.
                            Opinion of the Court



                                   OPINION

Presiding Judge Lawrence F. Winthrop delivered the opinion of the Court,
in which Judge Diane M. Johnsen and Judge Maria Elena Cruz joined.


W I N T H R O P, Presiding Judge:

¶1            Trisha A. (“Mother”) appeals the juvenile court’s order
severing her parental rights to her two children (“the children”). Mother
argues the court violated her due process rights by finding she did not have
good cause for failing to appear at a pretrial hearing and, on an accelerated
basis, severing her rights in absentia. In this opinion, we clarify the standard
to apply when a parent moves to set aside a severance order entered after a
case has been accelerated to a final adjudication as a result of a missed initial
hearing, pretrial conference, or status conference pursuant to Arizona Rule
of Procedure for the Juvenile Court 64(C).1 In doing so, we also clarify the
application of Christy A. v. Ariz. Dep’t of Econ. Sec., 217 Ariz. 299 (App. 2007),
and hold that the parent’s burden of demonstrating good cause in this
setting does not include providing evidence of a meritorious defense. As
more fully discussed below, minimal due process safeguards and
fundamental fairness require that we vacate the severance order here and
remand this case for further proceedings consistent with this decision.

                  FACTS AND PROCEDURAL HISTORY

¶2            On September 9, 2015, Mother was admitted to Banner
Behavioral Health for substance abuse treatment for heroin and
methamphetamine use. Mother did not complete the hospital’s substance
abuse treatment and left against medical advice. On September 11, 2015,
the Department of Child Safety (“DCS”) took temporary custody of the
children and placed them with their maternal grandmother. Thereafter,
DCS filed a petition alleging the children were dependent as to Mother due
to substance abuse and/or neglect. Mother contested the dependency, but
the juvenile court found the children dependent as to her.




1     Our holding also applies to accelerated severance of parental rights
pursuant to Rule 65.



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                          TRISHA A. v. DCS, et al.
                           Opinion of the Court

¶3            On August 3, 2016, DCS filed a petition to sever Mother’s
parental rights based on abandonment, substance abuse, and out-of-home
placement for a cumulative total period of nine months or longer. See Ariz.
Rev. Stat. (“A.R.S.”) § 8-533(B)(1), (3), (8)(a) (Supp. 2017).2 As a part of the
severance proceedings, Mother received, and signed, a “Notice to Parent in
Termination Action” (“Form 3”). Form 3 advised Mother that if she failed
to attend any severance-related hearing without good cause, the court may
find that she waived her legal rights and admitted the alleged grounds for
severance.

¶4            Mother attended the initial severance hearing, set pursuant to
Rule 65, and the initial mediation. The juvenile court excused Mother from
        3

the next pretrial hearing on September 22, 2016. At that pretrial hearing,
the court set a combined report and review status hearing and pretrial
conference for January 18, 2017 (“January Hearing”).4 The court also set the
severance adjudication hearing for March 28 and March 30, 2017. Mother
did not appear at the January Hearing. Mother’s attorney informed the
court that he had told Mother about the January Hearing, but that he had

2     We cite the current versions of all applicable statutes as no revisions
material to this decision have occurred.

3      The purpose of a Rule 65 initial hearing is for the court to “determine
whether service has been completed and whether the parent . . . admits,
denies or does not contest the allegations contained in the motion or
petition for termination of parental rights.” Ariz. R.P. Juv. Ct. 65(A).

4      During a dependency, the juvenile court is required to hold a report
and review hearing “at least once every six months to inquire about the
status of the children and the compliance of the parents with services.” See
Dependency        Hearing     Descriptions,     Maricopa        Cty.     AZ,
https://www.maricopa.gov/814/Dependency-Hearing-Descriptions. See
also A.R.S. § 8-847(A), (E) (2018) (providing a “court shall hold periodic
review hearings at least once every six months” to consider, among other
factors, the health and safety of the child). There is no provision in the
panoply of rules governing severance proceedings that specifically
provides for a pretrial conference. Rule 54, however, found in the group of
rules applying to dependency proceedings, provides the purpose of a
pretrial conference is “to determine whether the parties are prepared and
intend to proceed to trial or whether resolution of remaining issues in a
non-adversarial manner is possible and to address any issues raised by the
parties. Counsel shall meet with their clients prior to the conference.”



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                          TRISHA A. v. DCS, et al.
                           Opinion of the Court

not heard from her. The court found that Mother did not have good cause
for failing to appear. At the request of DCS, the court then converted the
report and review hearing/pretrial conference into an accelerated
severance hearing, and heard evidence from DCS in support of its
severance petition.

¶5            The DCS case manager testified that Mother had only
sporadic contact with the children during the 16-month dependency and
that Mother had not provided the children with reasonable support because
she had not sent the children any gifts, birthday cards, or letters. Through
the case manager’s testimony, DCS additionally contended that Mother
was unable to maintain a normal parental relationship with the children
because, in addition to failing to provide parental contact or guidance, she
failed to provide the children with basic necessities such as food and shelter.
Moreover, the case manager opined that Mother was unable to care for the
children because of her history of substance abuse, inability to demonstrate
sobriety, and failure to successfully participate in substance abuse
treatment. At the end of a hearing that lasted twenty-five minutes,5 the
juvenile court found DCS established by clear and convincing evidence all




5     The transcript of the entire hearing is 28 pages; however, the
testimony presented is only 12 pages. Mother’s attorney’s entire cross
examination of DCS’ case manager consisted of the following:
      Q. When was the last time you had direct contact with my client?
      A. It would have been at the mediation.
      Q. So about prior to the last court hearing?
      A. Yeah.
      Q. Okay. And you were aware that she had left word that she was
      attending a hearing in Gilbert [at] the last court hearing here, correct?
      A. I believe she was actually here . . . at that hearing.
      Q. If that’s what you recall.
      A. Yeah.
      Q. You understand though that she has an active criminal case?
      A. Yes.
      Q. All right. And you don’t know at this point whether she’s
      incarcerated or not, correct?
      A. No. Not [to] my knowledge, no.
      Q. Okay. Nothing further.




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                         TRISHA A. v. DCS, et al.
                          Opinion of the Court

three grounds for severance. The court also found by a preponderance of
the evidence that severance was in the children’s best interests.6

¶6            Nine days after the January Hearing, Mother moved to set
aside the severance ruling, arguing she had been physically unable to
appear.    In support of her motion, Mother argued the maternal
grandparents, who were present at the hearing, knew but failed to inform
the juvenile court that she was in an in-patient drug treatment facility
(“Lifewell”) the morning of the hearing. Mother attached to her motion a
copy of a “Behavioral Health Service Plan” form from Lifewell dated
January 18, 2017, identifying her as a patient admitted to the facility. The
court granted Mother’s motion before DCS had an opportunity to respond,
finding Mother was “physically unable to appear in Court [] for the Report
and Review Hearing/Pretrial Conference set to January 18, 2017.”

¶7            DCS filed an opposition to Mother’s motion and moved the
juvenile court to reconsider the order setting aside the severance ruling.
DCS argued that Mother failed to establish good cause for her failure to
appear at the January Hearing and requested a status conference to resolve
the pending motions. In her response to the DCS motion, Mother agreed to
the status conference “to discuss rescheduling the Severance Trial,” but
maintained that the court properly granted her motion to set aside because
she was physically unable to appear at the January Hearing.7

¶8           The juvenile court set a status conference for February 23,
2017 (“February Hearing”) to determine whether to “set aside the set-
aside.” Mother did not appear. At the hearing, DCS argued that documents
Mother submitted with her motion showed she was admitted to Lifewell at
12:00 p.m. on January 18, more than two hours after the scheduled start of
the January Hearing. From that, DCS argued Mother’s admission to
Lifewell did not prevent her from appearing at the hearing. DCS further
argued that the court should affirm the severance because Mother did not

6      The juvenile court also severed the parental rights of the children’s
biological father (“Father”) in absentia. Father is not contesting the
severance, and is not a party to this appeal.

7      In her motion to set aside and her response to DCS’ motion to
reconsider, Mother did not discuss the merits of the underlying severance
action nor identify the evidence she proposed to offer at the severance
hearing.




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                          TRISHA A. v. DCS, et al.
                           Opinion of the Court

notify either DCS or her attorney that she was going to Lifewell. In
Mother’s defense, her attorney argued that the Lifewell paperwork did not
show what time Mother arrived at the facility, but did show she was in
Lifewell on January 18, 2017, the date of the January Hearing.8

¶9            DCS also argued that, even if the juvenile court found good
cause for Mother’s absence from the January Hearing, there was no good
cause for Mother’s absence from the February Hearing. The court,
however, stated it was “not too concerned about [Mother’s] non-
appearance” at the informally set February Hearing. Ultimately, the court
reinstated the severance ruling it had made at the conclusion of the January
Hearing. The court based its decision on the “additional information about
the circumstances surrounding Mother’s non-appearance” and because
Mother had been in “contact [via e-mail] with her lawyer, [and] could have
told” her lawyer about her treatment.

¶10            Mother timely appealed. At DCS’ request, we stayed the
appeal pending the Arizona Supreme Court’s decision in Brenda D. v. Dep’t
of Child Safety, 243 Ariz. 437 (2018). Following issuance of the Supreme
Court’s decision in that case, we directed Mother and DCS to file
supplemental briefs. We have jurisdiction over the appeal pursuant to the
Arizona Constitution, Article 6, Section 9; A.R.S. § 8-235(A) (2014); and Rule
103(A) of the Arizona Rules of Procedure for the Juvenile Court.

                                ANALYSIS

¶11           On appeal, Mother argues the juvenile court violated her due
process rights by setting aside its good cause finding. Mother additionally
argues that courts should not apply civil procedure standards for setting
aside default judgments to juvenile court proceedings because that
standard does not protect a parent’s constitutional interests in a severance
proceeding. In response, DCS argues that in deciding whether to set aside
a severance order entered in absentia, the juvenile court should apply a
default judgment standard taken from civil procedure—requiring good
cause, as demonstrated by proof of mistake, inadvertence, surprise, or
excusable neglect and a meritorious defense. See, e.g., Richas v. Superior
Court, 133 Ariz. 512, 514 (1982).




8     The court asked whether Lifewell accepted walk-ins                   or
appointments, but neither counsel could answer the question.



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                            TRISHA A. v. DCS, et al.
                             Opinion of the Court

       I.      Introduction

¶12             Severance cases by their very nature are dependent on the
unique factual circumstances of each case, but all of them implicate a
parent’s constitutional right to parent her children. See Minh T. v. Ariz. Dep’t
of Econ. Sec., 202 Ariz. 76, 79, ¶ 14 (App. 2001). This fundamental right does
not disappear because a parent has not been a model parent or has
temporarily lost custody of the children. Michael M. v. Ariz. Dep’t of Econ.
Sec., 202 Ariz. 198, 200, ¶ 8 (App. 2002) (quoting Maricopa Cty. Juv. Action
No. JS-500274, 167 Ariz. 1, 4 (1990) (citation omitted)). Nor does a parent’s
fundamental right to raise her children disappear because the children
“might be better off in another environment.” Mary Ellen C. v. Ariz. Dep’t of
Econ. Sec., 193 Ariz. 185, 194, ¶ 43 (App. 1999) (quoting Maricopa Cty. Juv.
Action No. JS-6520, 157 Ariz. 238, 244 (App. 1988)). Although the right to
parent one’s children is not absolute, justice requires that a parent receive
due process and fundamentally fair procedures before this right is severed.
Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 24 (2005) (citing Santosky v. Kramer,
455 U.S. 745, 754 (1982)).

¶13           Pursuant to Rule 66(D)(2) or Rule 64(C), juvenile courts have
discretion to determine whether and to what extent a parent has waived
her legal rights when she has failed to appear at a hearing and whether and
when to proceed to a final adjudication hearing. Rule 66(D)(2) permits a
juvenile court to sever a parent’s rights in absentia at a scheduled final
adjudication hearing if the court finds that the parent does not have good
cause for her absence, the parent was properly served pursuant to Rule 64,
and the parent was previously advised of the potential consequences of her
failure to appear. Rule 64(C) permits a juvenile court that finds a parent has
missed an initial hearing, pretrial conference, or status conference to convert that
preliminary proceeding into an accelerated final adjudication hearing, and
to sever a parent’s rights based on the record created at the accelerated
severance hearing.9

¶14         Not all juvenile court judges follow the same Rule 64(C)
procedure when a parent misses a scheduled pre-adjudication hearing;
some judges routinely accelerate the final severance hearing, while others
do not. Although the waiver language of Rule 64(C) is similar to that of

9       Rule 65(C)(6)(c) also allows a juvenile court to hold an accelerated
severance adjudication and sever a parent’s rights in absentia if the court
finds that the parent did not have good cause for her failure to appear at an
initial severance hearing, had received notice of the hearing, and had been
warned that the court may sever her rights if she failed to appear.


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                          TRISHA A. v. DCS, et al.
                           Opinion of the Court

Rule 66(D)(2), the procedures and rights at stake in these rules are distinctly
different. Indeed, this case highlights the opposing interests at stake in a
severance hearing and the difficulty of applying a uniform procedure to
balance a parent’s fundamental right to parent her children with the State’s
interest in efficiently providing the children with permanency, stability,
and safety in both the Rule 66(D)(2) and Rule 64(C) contexts. As such, we
examine these provisions in detail.

       II.    Rule 66(D)(2)

¶15           Rule 66(D)(2) provides:

       If the court finds the parent, guardian or Indian custodian
       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, guardian or
       Indian custodian and that failure to appear may constitute a
       waiver of rights, and an admission to the allegation
       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.

(Emphasis added.)

¶16             Rule 66(D)(2) applies only if a parent misses a final scheduled
severance adjudication hearing. If a parent fails to appear at a scheduled
final adjudication hearing and the juvenile court finds the parent did not
have good cause for failing to appear, then the court, in its discretion, may
proceed with the hearing and, assuming requisite proof by the State, enter
a severance order in absentia. See Christy A., 217 Ariz. at 303-04, ¶ 13
(reviewing a “default” severance order pursuant to Rule 66(D)(2) after
mother failed to appear at the final severance hearing); Brenda D., 243 Ariz.
at 448, ¶ 40 (holding a court, in its discretion, may “find waiver of the
parent’s legal rights” pursuant to Rule 66(D)(2) and sever a parent’s rights
in absentia if a parent fails to timely appear at a final adjudication hearing
without good cause).

¶17          The juvenile court also has discretion in deciding whether to
set aside a severance entered in absentia after an adjudication hearing
because a parent had “good cause” for her failure to appear. We have held


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                          TRISHA A. v. DCS, et al.
                           Opinion of the Court

in the Rule 66(D)(2) context that to establish good cause a parent must prove
both “(1) mistake, inadvertence, surprise or excusable neglect” and “(2) a
meritorious defense.” Christy A., 217 Ariz. at 304, ¶ 16 (citing Richas, 133
Ariz. at 514). A parent contesting a severance order need not show that she
will prevail but must show “a good faith basis upon which to contend that
the petitioner cannot prove a statutory basis for termination and/or that
termination is not in the best interests of the child[ren].” Id. at ¶ 15 n.11.

¶18            In Christy A. we attempted to balance a parent’s interest and
the State’s interest at a scheduled final severance hearing by drawing from
the civil procedure default-judgment rules for the concept of and standards
for setting aside a severance order entered after a failure to appear. 217
Ariz. at 304, ¶ 16. See also Brenda D., 243 Ariz. at 448, ¶ 41 (finding
instructive Christy A.’s “good cause” standard “for setting aside entry or
judgment of default”). But subsequent decisions have implicitly extended
the standard articulated in Christy A. to defaults entered pursuant to Rule
64(C), after a parent’s failure to appear at a routine pretrial proceeding.
Closely examined, Christy A.’s progeny demonstrates that applying such a
standard does not provide a workable framework to balance the parent’s
and State’s rights when the court converts a routine status conference or
preliminary proceeding into an accelerated final severance hearing in
absentia.10


10      No published case directly criticizes/disapproves Christy A.’s
default judgment standard; however, numerous unpublished decisions
where the juvenile court severed a parent’s rights after the parent’s failure
to appear at a preliminary hearing demonstrate confusion in the
interpretation and application of Christy A. See Michaela M. v. Ariz. Dep’t of
Econ. Sec., 2 CA-JV 07-0035, 2008 WL 4648843, at *5, ¶ 18 (Ariz. App. Feb.
22, 2008) (mem. decision) (noting both the moving party and the juvenile
court believed “meritorious defense” referred to the reason the parent
failed to appear at the hearing, and not the underlying severance action);
Martha C. v. Dep’t of Child Safety, 1 CA-JV 16-0426, 2017 WL 1505913, at *3,
¶ 13 (Ariz. App. Apr. 27, 2017) (mem. decision) (finding mother failed to
establish a meritorious defense when she argued “DCS failed to make
reasonable efforts to provide appropriate reunification services because it
did not offer her services in Maricopa County”); Manuel T. v. Dep’t of Child
Safety, 1 CA-JV 14-0036, 2014 WL 4103935, at *3, ¶ 12 (Ariz. App. Aug. 19,
2014) (mem. decision) (finding even if father had good cause for his
nonappearance, there was “no meritorious defense that could have been
advanced that would have defeated DCS’ claim of abandonment”).



                                      9
                           TRISHA A. v. DCS, et al.
                            Opinion of the Court

       III.   Rule 64(C)

¶19           Rule 64(C) provides:

       A notice of hearing shall accompany the motion or petition
       for termination of parental rights and shall advise the parent,
       guardian or Indian custodian of the location, date and time of
       the initial termination hearing. In addition to the information
       required by law, the notice of hearing shall advise the parent,
       guardian or Indian custodian that failure to appear at the
       initial hearing, pretrial conference, status conference or
       termination adjudication hearing, without good cause, may
       result in a finding that the parent, guardian or Indian
       custodian has waived legal rights, and is deemed to have
       admitted the allegations in the motion or petition for
       termination. The notice shall advise the parent, guardian or
       Indian custodian that the hearings may go forward in the
       absence of the parent, guardian or Indian custodian and
       may result in the termination of parental rights based upon
       the record and evidence presented.

(Emphasis added.)

¶20           Thus, under this rule, if a parent fails to appear at a pretrial
hearing in a severance-related proceeding, the juvenile court may find a
waiver of legal rights and may accelerate the final adjudication hearing and,
upon the requisite proof, sever a parent’s rights in absentia. See Adrian E. v.
Ariz. Dep’t of Econ. Sec., 215 Ariz. 96, 99, ¶ 9 (App. 2007) (“The plain
language of this rule [Rule 64(C)] undeniably suggests parental rights may
be terminated by default at any of the four types of hearings named in the
rule, including status conferences.”). Although many parents have argued
that Rule 64(C) violates their due process rights, no Arizona appellate court
has directly addressed this issue. See Marianne N. v. Dep’t of Child Safety, 243
Ariz. 53, 55-56, ¶ 12 (2017) (declining to address whether the juvenile court
abused its discretion by severing a mother’s parental rights in absentia or
whether the court denied the mother due process and her fundamental
right to parent her children). See also Brenda D., 243 Ariz. at 440 (not
addressing the constitutionality of accelerating a severance hearing, after a




                                      10
                           TRISHA A. v. DCS, et al.
                            Opinion of the Court

parent fails to appear at a pretrial hearing, and ordering severance in
absentia).11

¶21            Even if a juvenile court finds a parent has waived her legal
rights under Rule 64(C) and proceeds with an accelerated severance
hearing, DCS still maintains the same burden of proof. See Michael J. v. Ariz.
Dep’t of Econ. Sec., 196 Ariz. 246, 249, ¶ 12 (2000) (finding DCS must prove
a statutory ground for severance by clear and convincing evidence and that
severance is in a child’s best interest by a preponderance of the evidence).
In practice, however, when the juvenile court proceeds to an adjudication
after a parent’s failure to appear, the resulting hearing may not be a fact-
intensive proceeding. Typically, a DCS supervisor or caseworker briefly
summarizes the case history, the success or failure of services offered to the
parent, and opines about the parent’s fitness and parenting skills. The DCS
witness also opines about whether severance is in the children’s best
interest. At the same time, a fortiori, the parent’s attorney has no client-
witness to call to testify and, indeed, is usually surprised by the client’s
failure to appear (particularly when the parent has cooperated and
appeared in the past). While the attorney can theoretically present a case to
rebut DCS’ evidence, the reality is that, as here, the parent’s attorney is often
ill prepared to address the merits at such an accelerated hearing. It is no
wonder that, when the juvenile court exercises its discretion to accelerate a
final hearing under Rule 64(C), the result is sometimes generically referred
to as a “drive-by” hearing. See Dependency Hearing Descriptions, Maricopa
Cty.      AZ,       https://www.maricopa.gov/814/Dependency-Hearing-
Descriptions.

       IV.    Good Cause in Rule 64(C) Cases

¶22           Like Rule 66(D)(2), Rule 64(C) does not define good cause;
however, we expressly decline to extend to initial severance hearings,
pretrial conferences, and status conferences the holding of Christy A. that a
parent moving to set aside a severance ordered after an accelerated hearing
must present evidence of a meritorious defense.

¶23          Although we generally disfavor default judgments, we
recognize that juvenile courts are granted wide discretion in issuing orders.
See Sloan v. Florida-Vanderbilt Dev. Corp., 22 Ariz. App. 572, 574 (1974).


11    The parent in Brenda D. failed to appear at the final scheduled
adjudication hearing. 243 Ariz. at 441, ¶ 8. Accordingly, the court severed
her parental rights pursuant to Rule 66(D)(2) not Rule 64(C).



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                           TRISHA A. v. DCS, et al.
                            Opinion of the Court

Juvenile courts nevertheless must conduct proceedings which are
fundamentally fair and comport with a parent’s due process rights. See Kent
K., 210 Ariz. at 284, ¶ 24. To determine whether a proceeding affords a
parent sufficient due process, we balance the parent’s interest at stake, the
risk the current proceeding will lead to an erroneous decision, and the
State’s interest at stake. See Mathews v. Eldridge, 424 U.S. 319, 335 (1976). See
also Lassiter v. Dep’t of Soc. Servs., 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)).
The State, however, has a legitimate interest in the welfare of the children.
Id. Moreover, both the parent and the State share an interest in a juvenile
court’s correct and just resolution of a severance proceeding. Id. at 27-28.
Given these interests, a juvenile court should assign more weight to the
State’s interests only if the State has a “powerful countervailing interest[]”
to that of a parent. Id. 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. Id. at 31. The court, however,
found that had the interests at stake been different, the sliding scale
approach would have compelled a different outcome. Id. (“If, in a given
case, the parent’s interests were at their strongest, the State’s interests were
at their weakest, and the risks of error were at their peak, it could not be
said that the Eldridge factors did not overcome the presumption against the
right to appointed counsel, and that due process did not therefore require
the appointment of counsel.”). See also Roe v. Wade, 410 U.S. 113, 162-63
(1973) (applying a similar sliding scale approach to determine that a

12      Although we have not, to date, formally adopted a sliding scale
approach to balance a parent’s interest in parenting her children with the
State’s interest in providing children with safety, stability, and permanency,
using a sliding scale approach in this setting is not a new concept. Cf.
Margaret Ryznar, A Curious Parental Right, 71 SMU L. Rev. 127, 131-32
(2018) (noting courts have grappled with applying a consistent standard of
review for parental rights cases and suggesting the application of a sliding
scale approach).


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                          TRISHA A. v. DCS, et al.
                           Opinion of the Court

pregnant woman’s right to end her pregnancy outweighed a state’s interest
in protecting the health and welfare of its citizens until a “compelling
point,” when the state’s interests became predominant).

¶26            How to balance a parent’s fundamental right to the care and
custody of her children against the State’s equally important interest in
protecting children from harm and providing them with stability and
permanency in a Rule 64(C) accelerated final severance hearing turns on the
second factor of the Matthews v. Eldridge inquiry—the risk that the current
procedures will lead to an erroneous deprivation of a party’s right. In some
cases, a Rule 64(C) accelerated hearing may too often become a proceeding
where efficiency can outweigh sufficiency of evidence, and convenience can
outweigh nuance. At the time of such a preliminary proceeding, often
months before the scheduled severance hearing, it is difficult to imagine
what meaningful evidence a parent could offer in order to prove a
meritorious defense. Moreover, while cost and efficiency are surely factors
to consider when balancing a parent’s interest versus the State’s interest,
they are not the primary nor the only important factors. See, e.g., Marianne
N., 243 Ariz. at 60, ¶ 36 (Eckerstrom, J., dissenting) (“[A] parent’s failure to
attend a pretrial conference risks no delay in the scheduled termination
hearing or the child’s permanency.”).

¶27            At Rule 64(C) accelerated severance hearings, as noted above,
a parent’s attorney is often left scrambling to adequately counter the State’s
summary presentation of evidence and to present the parent’s defense.
Additionally, when a court severs a parent’s rights at an accelerated
adjudication hearing pursuant to Rule 64(C), it deprives a parent of the time
over which the parent can hope to demonstrate that she is successfully
complying with DCS’ provided services and working in good faith to
resolve the issues that led DCS to take the children into custody in the first
place.13 In such setting, a parent suffers a great risk that she will be
prematurely, erroneously, and permanently deprived of her right to parent
her children. Moreover, at a preliminary or status hearing, a parent’s

13    Some pretrial conferences, such as in this case, may occur within two
months after DCS files its severance petition. If the parent were to fail to
appear at the first pretrial conference, and the court were to proceed with
an accelerated adjudication hearing, the parent may only be able to rebut
DCS’ allegations for severance with proof of two months of services. In
many cases a parent will not, for a variety of reasons, some of which are
outside the parent’s control, even begin to receive services until a few
months into the severance and/or dependency proceedings.



                                      13
                           TRISHA A. v. DCS, et al.
                            Opinion of the Court

interest in the care and custody of her children, and the risk that an
accelerated proceeding might forever alter her fundamental right to parent
her children, is at its highest. In contrast, the State’s interest in safety,
permanency, and stability is certainly lower, because generally the State
already has custody of the children, and the date of the final severance
hearing is already set. The issue here is not whether the State will
ultimately prevail on the merits, but rather ensuring that, whatever the
ultimate ruling, the outcome is a result of a fundamentally fair proceeding
that does not compromise a parent’s due process rights. Accordingly,
because at this stage of the severance proceedings (at an initial hearing,
pretrial conference, or status conference), the court must afford a parent
greater procedural protection than at a hearing held pursuant to Rule 66,
we hold the court may not require a parent to prove a meritorious defense
to set aside a severance order arising out of a Rule 64(C) (or Rule 65)
accelerated hearing.

¶28            DCS cites Christy A., in arguing a parent must provide both a
reason for her failure to appear and present a meritorious defense to set
aside an order entered pursuant to Rule 64(C). 217 Ariz. at 304, ¶ 16.
Applying the meritorious defense prong of Christy A. to justify denial of a
parent’s motion to set aside a severance order accelerated by Rule 64(C) or
Rule 65 infringes a parent’s right to a fundamentally fair proceeding.
Additionally, because on the sliding scale a parent’s interest outweighs the
State’s interest at a preliminary hearing or status conference, requiring a
parent to provide a “meritorious defense,” as articulated in Christy A. and
some of its progeny, is unnecessarily burdensome and impractical. Instead,
to demonstrate good cause in moving to set aside a severance order issued
after an accelerated hearing pursuant to Rule 64(C) or Rule 65, a parent need
only show evidence of a legitimate reason or excuse for her failure to
appear—which the court, in its discretion, may accept or reject.14

¶29          The application of this standard in this setting is further
supported by the very nature of preliminary hearings and status
conferences, where, in general, a party’s presence likely does not aid the

14      Our holding that a parent need not show a meritorious defense in all
situations once a juvenile court proceeds to an accelerated severance
hearing in absentia is consistent with Brenda D., 243 Ariz. at 444, ¶ 24 (finding
that if a “parent appears late, but before the hearing’s conclusion, then the
waiver of the parent’s legal rights is effective only for the portion of the
hearing during which the parent was absent; the waiver ends upon the
parent’s appearance, even if the parent cannot show good cause for his or
her tardy arrival”).


                                       14
                          TRISHA A. v. DCS, et al.
                           Opinion of the Court

court in reaching a determination as to a procedural or evidentiary issue
raised by the pending severance proceedings.

¶30            If the court accepts the parent’s proffered excuse or reason,
finding good cause for the failure to appear, there is no waiver of rights.
The court will vacate its severance order and the case either proceeds to the
already regularly scheduled date for the severance hearing or the court will
set an entirely new final adjudication hearing date. If the court instead finds
no good cause for the failure to appear at the accelerated hearing, the
severance order stands.

¶31           As previously noted, the juvenile court’s decision to
accelerate a preliminary hearing pursuant to Rule 64(C) is discretionary,
and should not be a “given,” notwithstanding DCS’ frequent requests to do
so. Without second-guessing the juvenile court, it may be a better practice
for the court to rule only that the parent has waived participation at the
missed pretrial proceeding, and allow the severance issue to proceed to the
final adjudication hearing as scheduled. See, e.g., Brenda D., 243 Ariz. at 448,
¶¶ 41-42 (suggesting that if a parent appears as scheduled at the final
severance adjudication there is no permanent waiver due to an earlier
failure to appear). Even with a waiver of rights arising out of an unexcused
failure to appear at any given pretrial hearing, counsel for the parent will,
at a minimum, have an adequate opportunity to be prepared to challenge
the proof presented by DCS at the final scheduled severance adjudication
hearing relative to the statutory ground(s) for severance and best interests
of the children.

       V.     The Juvenile Court’s Finding of Good Cause

¶32            The procedural history of this case is further muddied
because, here, the juvenile court arguably made an appropriate, albeit
premature, finding that Mother had a good excuse for failing to appear at
the pretrial hearing because she had been admitted for treatment at Lifewell
on the hearing date. DCS did not, at any time, controvert the merits of that
excuse.15 Instead, at the February Hearing, DCS misinterpreted the
information in the Lifewell documents provided to the court, and argued
that Mother did not arrive at Lifewell until 12:00 p.m. when the January
Hearing was at 9:30 a.m. The documents Mother provided in support of
her motion do not indicate the hour of the day that Lifewell admitted


15    DCS’ written objection to Mother’s motion to set aside largely
focused on Mother’s failure to raise a meritorious defense.



                                      15
                          TRISHA A. v. DCS, et al.
                           Opinion of the Court

Mother for treatment. The documents do include an e-mail from a Lifewell
clinician, sent on January 22 at 12:34 p.m., indicating Mother went to
Lifewell on January 18, 2017. At the end of the February Hearing, the court
reinstated the severance order based on Mother’s failure to notify anyone
and the additional information presented regarding Mother’s
nonappearance.16 In reinstating the severance order, the court did not make
specific findings as to whether its initial finding of good cause was in error.

¶33           These proceedings deprived Mother of a fundamentally fair
severance hearing. The record is unclear as to what extent the juvenile court
based its decision to reinstate the severance order on DCS’
misinterpretation of the record and/or DCS’ argument that Mother was
required to prove a meritorious defense.

                               CONCLUSION

¶34           The juvenile court’s order severing Mother’s rights to the
children is vacated and remanded for further proceedings in accordance
with this decision.17




                         AMY M. WOOD • Clerk of the Court
                         FILED: AA




16     DCS and the guardian ad litem argued Mother could have notified
someone that she could not attend the January Hearing or, alternatively,
Mother could have gone to Lifewell on another day. While this may be true,
it does not necessarily undermine the juvenile court’s finding that Mother
had good cause for her nonappearance at the hearing due to her physical
condition and/or unavailability.

17     In so doing, we express no opinion as to the merits of whether
Mother had good cause for failing to appear at the January Hearing, and if
not, how the juvenile court should exercise its discretion in determining
whether and to what extent a waiver of legal rights has occurred.


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