                      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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                             STACEY M., Appellant,

                                         v.

     DEPARTMENT OF CHILD SAFETY, P.M., A.M., H.M., Appellees.

                              No. 1 CA-JV 16-0027
                                FILED 7-5-2016


            Appeal from the Superior Court in Maricopa County
                              No. JD28159
                 The Honorable Daniel G. Martin, Judge

                                   AFFIRMED


                                    COUNSEL

Denise L. Carroll, Esq., Scottsdale
By Denise L. Carroll
Counsel for Appellant

Arizona Attorney General’s Office, Tucson
By Cathleen E. Fuller
Counsel for Appellee
                         STACEY M. v. DCS, et al.
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Patricia K. Norris delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Kenton D. Jones joined.


N O R R I S, Judge:

¶1            Stacey M. appeals the juvenile court’s order terminating her
parental rights to her children, P.M., A.M., and H.M., under Arizona
Revised Statutes (“A.R.S.”) section 8-533(B)(8)(c) (Supp. 2015) (15 months
or longer out-of-home placement).

¶2              Stacey first argues the superior court violated her due process
rights in finding she failed to appear at the initial termination hearing
without good cause. Based on our review of the record, the juvenile court
did not abuse its discretion in making this finding. Adrian E. v. Ariz. Dep’t
of Econ. Sec., 215 Ariz. 96, 101, ¶ 15, 158 P.3d 225, 231 (App. 2007).

¶3             After Stacey failed to appear at the first initial termination
hearing set for August 20, 2015 (“August hearing”), the juvenile court
continued the hearing to September 11, 2015 (“September hearing”), but did
not find that Stacey had yet waived her rights. When she did not appear at
the September hearing, the juvenile court found, under Arizona Rule of
Procedure for the Juvenile Court 65(C)(6)(c),1 that she had failed to appear
without good cause, “service [was] complete,” she had been “provided
with notice of [the] hearing,” and a Form III (Notice to Parent in a
Termination Action), which “advised [her] of the consequences of failing to
appear.” Thus, as authorized by Rule 65(C)(6)(c), the juvenile court found
Stacey had waived her right to contest the allegations in the motion and
admitted those allegations. The court continued the hearing to November
10, 2015 (“November hearing”).



              1“Ifthe parent . . . fails to appear at the initial termination
hearing without good cause shown and the court finds the parent . . . had
notice of the hearing, was properly served . . . and had been previously
admonished regarding the consequences of failure to appear, . . . that failure
to appear may constitute a waiver of rights and an admission to the
allegations contained in the termination motion . . . .”; see also A.R.S. § 8-
537(C) (2014).


                                      2
                         STACEY M. v. DCS, et al.
                           Decision of the Court

¶4            At the November hearing, Stacey argued through counsel
that she had not actually missed the August hearing, but had been waiting
outside the courtroom to be called for the hearing. Stacey, however, did not
present any evidence corroborating this assertion. She also admitted she
had failed to attend the September hearing because she had “overslept,”
explaining she was working double shifts. Notably, she did not assert she
did not know the date and time of the September hearing. The juvenile
court found that while Stacey had “been working very hard, that [did] not
present good cause for [her] previous failure to appear.” On this record, we
cannot say the juvenile court’s exercise of its discretion was “manifestly
unreasonable.” See Adrian E., 215 Ariz. at 101, ¶ 15, 158 P.3d at 230
(quotations and citation omitted).

¶5             Nevertheless, Stacey argues the juvenile court violated her
due process rights when it then proceeded with a “default.” It did not,
however, proceed with a default, but rather found Stacey had waived her
rights to contest the allegations in the motion. Christy A. v. Ariz. Dep’t of
Econ. Sec., 217 Ariz. 299, 304, ¶ 14, 173 P.3d 463, 468 (App. 2007) (juvenile
courts should not use “default” terminology when a parent fails to appear,
but should consider “whether the parent can show ‘good cause’ . . . and
whether, under the circumstances, such failure should constitute a ‘waiver
of rights’”). Further, Stacey was present at the November hearing, and her
counsel cross-examined the DCS case manager about the services provided
to Stacey and the children’s placement.2 Thus, the juvenile court did not
violate Stacey’s due process rights by proceeding with the termination
hearing.

¶6            Stacey also argues DCS failed to provide substantial evidence
it had provided reunification services to her and that is why she had been
unable to remedy the circumstances that caused her children to be in an
out-of-home placement. The record does not support this argument,
however. Lashonda M. v. Ariz. Dep’t of Econ. Sec., 210 Ariz. 77, 81-82, ¶ 13,
107 P.3d 923, 927-28 (App. 2005) (“we look only to determine whether there
was substantial evidence to sustain” the juvenile court’s findings, and “we


              2In  its answering brief, DCS admitted the juvenile court
should have allowed Stacey to testify about the children’s best interests, but
argued the error was harmless. Stacey, however, did challenge the court’s
best interests finding and did not submit a reply brief, waiving the issue.
State v. Carver, 160 Ariz. 167, 175, 771 P.2d 1382, 1390 (1989) (“[O]pening
briefs must present significant arguments, supported by authority, setting
forth an appellant’s position on the issues raised.”).


                                      3
                          STACEY M. v. DCS, et al.
                            Decision of the Court

view the evidence in the light most favorable to upholding” its ruling)
(citation omitted).

¶7              DCS had the burden of proving, by clear and convincing
evidence, the statutory grounds for terminating Stacey’s parental rights. See
Christina G. v. Ariz. Dep’t of Econ. Sec., 227 Ariz. 231, 234, ¶ 12, 256 P.3d 628,
631 (App. 2011). Section 8-533(B)(8)(c) authorizes a court to terminate
parental rights when a “child has been in an out-of-home placement” for 15
months or longer, “the parent has been unable to remedy the circumstances
that cause the child to be in an out-of-home placement,” and “there is a
substantial likelihood that the parent will not be capable of exercising
proper and effective parental care and control in the near future.”
Additionally, DCS must show it has “made a diligent effort to provide
appropriate reunification services.” A.R.S. § 8-533(B)(8). DCS, however, is
not obliged to provide services that are futile. See Bennigno R. v. Ariz. Dep’t
of Econ. Sec., 233 Ariz. 345, 350, ¶ 20, 312 P.3d 861, 866 (App. 2013).

¶8             Substantial evidence supports the juvenile court’s finding that
“[DCS had] made a diligent effort to provide appropriate reunification
services.” As confirmed by progress reports prepared by other case
managers assigned to Stacey and her children, the DCS case manager
testified that DCS had provided Stacey with “a psychological evaluation,
domestic violence counseling, drug testing, dependency treatment court,
parent aide, and individual counseling and transportation.” Although the
case manager acknowledged at the hearing that DCS had not provided
Stacey visitation services between June 2015 and the November hearing,
DCS had provided her with visitation from April 2014 to June 2015—when
she stopped drug testing—about 14 months of visitation.

¶9            The evidence also showed Stacey had hampered DCS’ ability
to provide visitation services. For example, parent aide services had
previously assisted in setting up visitation, but Stacey stopped being
“compliant” with parent aide services in May 2015 and the services closed
at the end of June. Stacey also moved several times, which required DCS
“to rearrange service providers and transportation” and she tested positive
for methamphetamine seven times in April through June of 2015. Given
this evidence, DCS met its burden of proving it had made a diligent effort
to provide appropriate reunification services to Stacey.




                                        4
                         STACEY M. v. DCS, et al.
                           Decision of the Court

¶10          For the foregoing reasons, we affirm the juvenile court’s order
terminating Stacey’s parental rights to P.M., A.M., and H.M.




                                  :AA




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