                      NOTICE: NOT FOR OFFICIAL PUBLICATION.
  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                  AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                     IN THE
              ARIZONA COURT OF APPEALS
                                 DIVISION ONE


                             TANYA N., Appellant,

                                         v.

           DEPARTMENT OF CHILD SAFETY, M.N., Appellees.

                              No. 1 CA-JV 15-0096
                                FILED 9-15-2015


            Appeal from the Superior Court in Maricopa County
                               No. JS17105
               The Honorable Linda H. Miles, Judge Retired

                                   AFFIRMED


                                    COUNSEL

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

Arizona Attorney General’s Office, Tucson
By Erika Z. Alfred
Counsel for Appellee Department of Child Safety
                         TANYA N. v. DCS, M.N.
                          Decision of the Court



                      MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Chief Judge Michael J. Brown joined.


C A T T A N I, Judge:

¶1           Tanya N. (“Mother”) appeals from the superior court’s order
terminating her parental rights as to her son M.N. For reasons that follow,
we affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2            M.N. was born in July 2013. During Mother’s pregnancy,
DCS received several reports of substance abuse and domestic violence.
Mother admitted to using marijuana, and she tested positive for marijuana
at a prenatal visit. Following M.N.’s birth, he was immediately placed in a
temporary placement with two of his siblings.

¶3             In August 2013, the Arizona Department of Child Safety
(“DCS”) filed a petition to terminate Mother’s parental rights as to M.N.
based on chronic substance abuse and that her parental rights to another
child had been terminated on the same basis within the preceding two
years. See Ariz. Rev. Stat. (“A.R.S.”) § 8-533(B)(3), (10).1 Mother appeared
at a pretrial conference, which was reset to allow for a mediation hearing.

¶4             Mother failed to appear, however, at the next pretrial
conference. The superior court found that Mother’s failure to appear was
without good cause, and that she would thus be deemed to have admitted
the allegations in the petition. Mother filed a motion for reconsideration
asserting good cause for failing to appear, arguing that her counsel had sent
her four letters that listed incorrect court dates. The court denied Mother’s
motion, noting that she had been provided sufficient notice through other
means.

¶5           At the severance trial, DCS called two case workers to testify.
One case worker testified that Mother admitted to not participating in any
services concerning the prior dependency case and to continuing to smoke

1     Absent material revisions after the relevant date, we cite a statute’s
current version.


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                          TANYA N. v. DCS, M.N.
                           Decision of the Court

marijuana every other week during her pregnancy. A second case worker
testified that Mother failed to regularly participate and comply with
provided services, including urinalysis testing, supervised visits, and
parent-aide sessions. The case worker also testified that Mother had failed
to remedy the substance abuse problem that lead to the termination of her
parental rights to another child, Z.N.

¶6           The superior court terminated Mother’s parental rights,
finding that DCS had proven both of the two asserted grounds for
severance and that severance would be in M.N.’s best interests. Mother
timely appealed, and we have jurisdiction under A.R.S. § 8-235(A).

                               DISCUSSION

¶7           Mother argues that the superior court erred by failing to
recognize that good cause existed for her non-appearance at a pretrial
hearing. She also asserts she was denied effective assistance of counsel
because counsel did not properly advise her of the hearing date, and her
absence resulted in her being deemed to have admitted the allegations
against her.

I.    Mother’s Failure to Appear.

¶8           Mother argues that the superior court denied her due process
by deeming the allegations against her admitted based on her failure to
appear at the pretrial hearing. Mother argues that she established good
cause for her absence by showing that her counsel’s letters confused her
regarding the correct court date.

¶9           Rule 64(C) of the Arizona Rules of Procedure for the Juvenile
Court requires that a parent be advised of all hearing dates and of the
consequences of failing to appear:

      A notice of hearing shall accompany the motion or petition
      for termination of parental rights and shall advise the parent
      . . . of the location, date and time of the initial termination
      hearing. . . . [T]he notice of hearing shall advise the parent . . .
      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 . . .
      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 . . . that the hearings may go
      forward in the absence of the parent . . . and may result in the


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                           TANYA N. v. DCS, M.N.
                            Decision of the Court

       termination of parental rights based upon the record and
       evidence presented.

Ariz. R.P. Juv. Ct. 64(C); see also A.R.S. §§ 8-537(C), -863(C); Adrian E. v. Ariz.
Dep’t of Econ. Sec., 215 Ariz. 96, 98 n.3, ¶ 5, 158 P.3d 225, 227 n.3 (App. 2007).

¶10            The superior court has wide discretion in assessing good
cause for failing to appear, and we review such a finding for an abuse of
discretion. Adrian E., 215 Ariz. at 101, ¶ 15, 158 P.3d at 230. We defer to
such findings because the superior court is in the best position to weigh
evidence and assess witness credibility. Christy A. v. Ariz. Dep’t of Econ. Sec.,
217 Ariz. 299, 305, ¶ 19, 173 P.3d 463, 469 (App. 2007).

¶11            Here, we find no abuse of discretion in the court’s
determination that Mother did not establish good cause for her failure to
appear at the pretrial hearing. Mother was aware of the consequences of
failing to appear by virtue of receiving and acknowledging her receipt of
Form III on September 6, 2013 and at the initial termination hearing on
September 24, 2013. Mother was informed as early as the May 20, 2014
report and review hearing that the next pretrial conference would be held
on September 3, 2014. The record also indicates that Mother received three
additional notices of the September 3, 2014 hearing from a DCS case worker
shortly before the hearing. DCS thus complied with the requirements of
Rule 64 by providing Mother with notice of her rights as well as the dates
and times of future court hearings. Accordingly, the court did not abuse its
discretion by denying Mother’s motion. See Bob H. v. Ariz. Dep’t of Econ. Sec.,
225 Ariz. 279, 281–82, ¶ 9, 237 P.3d 632, 634–35 (App. 2010) (holding that
parent’s knowledge of the date and time through a mailed Form III is
sufficient notice).

¶12            Mother’s non-appearance notwithstanding, any possible
error in the court’s finding that Mother did not establish good cause was
harmless because overwhelming evidence supported the superior court’s
termination order. Given Mother’s admitted history of substance abuse
over a 10-year period, DCS established a pattern of substance abuse that is
likely to continue for an indeterminate period of time. Mother testified to
having a lengthy history of substance abuse beginning with marijuana
abuse at the age of 13. Mother further admitted to using Percocet and
benzodiazepines while she was pregnant with M.N. and her other children.
Mother tested positive for benzodiazepines during her delivery of M.N.’s
younger sibling, C.N. Additionally, it is undisputed that Mother’s rights to
another child were previously terminated on the same basis.




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                          TANYA N. v. DCS, M.N.
                           Decision of the Court

¶13            Furthermore, the record supports the superior court’s finding
that terminating Mother’s parental rights was in M.N.’s best interests. M.N.
is in an adoptive placement with someone who has adopted two of M.N.’s
older siblings. The superior court’s finding that M.N. is adoptable satisfied
the court’s responsibility to assess M.N.’s best interests. See Audra T. v. Ariz.
Dep’t of Econ. Sec., 194 Ariz. 376, 377, ¶ 5, 982 P.2d 1290, 1291 (App. 1998).

II.    Ineffective Assistance of Counsel.

¶14           Mother asserts she is entitled to relief because her counsel sent
letters stating incorrect dates for her pretrial hearing and was thus
ineffective. But as previously noted, Mother was provided adequate notice
of the hearing through other means.

¶15            Because Mother otherwise fails to establish prejudice
resulting from counsel’s performance, we need not consider whether she
has shown whether counsel was ineffective. See John M. v. Ariz. Dep’t of
Econ. Sec., 217 Ariz. 320, 325, ¶ 17, 173 P.3d 1021, 1026 (App. 2007) (noting
that because father did not establish prejudice resulting from counsel’s
alleged ineffectiveness, “we need not determine whether Arizona
recognizes ineffective assistance of counsel as a separate ground for relief
in an appeal of a termination order or resolves an allegation of counsel’s
inadequacies as a due process claim”); see also State v. Atwood, 171 Ariz. 576,
600, 832 P.2d 593, 617 (1992) (“If an ineffectiveness claim can be rejected for
lack of prejudice, the court need not inquire into counsel’s performance.”).

¶16            Thus, the superior court did not abuse its discretion by
finding that Mother did not establish good cause for her failure to appear
at a pretrial hearing or by terminating Mother’s parental rights.

                               CONCLUSION

¶17          For the foregoing reasons, we affirm the superior court’s
order terminating Mother’s parental rights.




                                     :ama


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