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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                             JIMMY B., Appellant,

                                        v.

           DEPARTMENT OF CHILD SAFETY, R.B., Appellees.

                             No. 1 CA-JV 16-0287
                               FILED 12-29-16


           Appeal from the Superior Court in Yavapai County
                        No. P1300JD2015-00085
                The Honorable Anna C. Young, Judge

                                  AFFIRMED


                                   COUNSEL

Law Office of Florence M. Bruemmer, PC, Anthem
By Florence M. Bruemmer
Counsel for Appellant

Arizona Attorney General’s Office, Mesa
By Nicholas Chapman-Hushek
Counsel for Appellee
                           JIMMY B. v. DCS, R.B.
                            Decision of the Court



                      MEMORANDUM DECISION

Judge Samuel E. Vederman1 delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani and Judge Lawrence F. Winthrop joined.


V E D E R M A N, Judge:

¶1           Jimmy B. (“Father”) appeals the juvenile court’s order
terminating his rights to R.B.2 For the following reasons, we affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2           Father is the biological parent of R.B., born December 2013.
The Department of Child Safety (“DCS”) took temporary custody of R.B. in
October 2015 after reports of neglect by Mother.3 Father had never seen
R.B. and was incarcerated at the time these proceedings were initiated.
Father was released in March 2016, but he currently lives in Texas and has
not had any communication with R.B.

¶3           The juvenile court adjudicated the child dependent as to
Mother in March 2016 and Father in May 2016. In May 2016, R.B.’s guardian
ad litem moved to terminate both Mother’s and Father’s parental rights. As
to Father, the guardian ad litem alleged abandonment and neglect as
grounds for termination. A hearing regarding the severance was held in
June 2016.

¶4            On the day of the hearing, Father was to testify telephonically.
Father’s attorney confirmed at the hearing that he spoke to Father and
advised him of the number to call and the time of the hearing. He further


1       The Honorable Samuel E. Vederman, Judge of the Arizona Superior
Court, has been authorized to sit in this matter pursuant to Article 6, Section
3, of the Arizona Constitution.

2      Shannon W. (“Mother”) also had her parental rights terminated in
the same order, but did not take part in this appeal.

3     DCS found Mother’s home had no electricity and she was unable to
provide basic necessities for R.B., including milk and diapers. Mother also
admitted to drug use in the home.


                                      2
                           JIMMY B. v. DCS, R.B.
                            Decision of the Court

emphasized to Father the importance of his testimony. Court staff
confirmed after the hearing’s scheduled start time that Father had not called
into the court. Father’s attorney advised the juvenile court that he had a
phone number for Father, but the court declined to call him because, “He
was to call us.” The juvenile court found that Father failed to appear
without good cause and treated that failure as an admission to the
allegations contained in the motion to terminate the parent-child
relationship. The juvenile court then took testimony from the DCS case
worker assigned to R.B. and ordered severance of Father’s parental rights
based on both abandonment and neglect under Arizona Revised Statutes
section 8-533(B)(1) and (2) (Supp. 2015). Father timely appealed.

                               DISCUSSION

¶5             Father argues the trial court erred by terminating his parental
rights after he failed to appear at the initial hearing. Father asserts that he
was deprived of due process because the juvenile court did not call him
before proceeding with the hearing. Father does not argue that there was
insufficient evidence in the record to support the statutory grounds for
termination or that termination was not in the child’s best interest.

¶6              We review constitutional claims de novo. Emmett McLoughlin
Realty, Inc. v. Pima Cty., 212 Ariz. 351, 355, ¶ 16 (App. 2006). While parents
possess a fundamental liberty interest in the custody of their children, those
rights are not absolute. Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 24 (2005).
Parental rights may be terminated upon a finding that there is clear and
convincing evidence establishing a statutory ground for severance under
A.R.S. § 8-533, and that severance is in the best interests of the child. Id. A
court may sever parental rights so long as parents are provided with
fundamentally fair procedures that satisfy due process requirements. Id.
(quoting Santosky v. Kramer, 455 U.S. 745, 754 (1982)). “In termination
proceedings, due process requires notice reasonably calculated, under all
the circumstances, to apprise interested parties of the pendency of the
action and to afford them an opportunity to present their objections.”
Monica C. v. Ariz. Dep’t of Econ. Sec., 211 Ariz. 89, 92, ¶ 16 (App. 2005)
(quotation and citation omitted).

¶7            In this case, the juvenile court confirmed that Father’s counsel
had spoken with Father the day before the hearing and had confirmed both
the time of the hearing and the number he was to call. In addition, Father’s
counsel told the court he advised Father why it was important he appear at
the hearing. Furthermore, Father received notice in accordance with
Arizona Rule of Procedure for the Juvenile Court 64(C), which advises a


                                      3
                          JIMMY B. v. DCS, R.B.
                           Decision of the Court

parent that failure to appear at the initial hearing without good cause may
result in a finding that the parent has waived legal rights and admitted the
allegations in the motion for termination, and that the proceedings may go
forward in their absence. Thus, Father knew the date and time of the
severance hearing and he was aware of the consequences if he failed to call
in.

¶8             Father was afforded an opportunity to present his case both
by his counsel being present at the hearing and by having the opportunity
at the court’s discretion to telephonically present testimony. See Ariz. R.P.
Juv. Ct. 42. The fact that Father did not take advantage of this opportunity
does not mean he was deprived of due process. Father argues that the court
should have afforded him “every opportunity” by trying to reach him at
the telephone number that his attorney had for him. However, due process
does not require the court to provide every opportunity imaginable to reach
a party, only reasonable notice and an opportunity to present their
objections. See Monica C., 211 Ariz. at 92, ¶ 16. Accordingly, the juvenile
court did not err in its decision to proceed with the hearing.

¶9             Arizona Rule of Procedure for the Juvenile Court 66(D)(2)
does still require “sufficient support” in the record to terminate a parent’s
rights. See Manuel M., 218 Ariz. at 214, ¶ 31. Here, Father was incarcerated
at the time R.B. was taken into custody and has never met the child. He did
not send any cards or letters to R.B. and has not provided any financial
support.     Accordingly, the record supports the court’s finding of
abandonment and the severance was in R.B.’s best interests.

                              CONCLUSION

¶10          For the foregoing reasons, we affirm the juvenile court’s order
terminating Father’s parental rights.




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


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