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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

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

2

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“If the 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). 
STACEY M. v. DCS, et al.

Decision of the Court

3

¶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.”). 
STACEY M. v. DCS, et al.

Decision of the Court

4

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. 
STACEY M. v. DCS, et al.

Decision of the Court

5

¶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.