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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DOMINIQUE M., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, A.K., S.K., Appellees.

No. 1 CA-JV 18-0145 

Appeal from the Superior Court in Maricopa County

No. JD18130

The Honorable Jo Lynn Gentry, Judge

VACATED AND REMANDED

COUNSEL

Czop Law Firm, Higley

By Steven Czop

Counsel for Appellant

Arizona Attorney General’s Office, Phoenix

By Sandra L. Nahigian

Counsel for Appellee Department of Child Safety

FILED 8-30-2018
DOMINIQUE M. v. DCS, et al.

Decision of the Court

2

MEMORANDUM DECISION

Chief Judge Samuel A. Thumma delivered the decision of the Court, in 

which Judge Jon W. Thompson and Judge David D. Weinzweig joined.

T H U M M A, Chief Judge:

¶1 Dominique M. (Mother) appeals from an order terminating 

her parental rights to her daughters, A.K. and S.K. Mother argues she was 

denied her due process rights when the superior court found that she failed 

to appear, waived her legal rights and proceeded in her absence, when she 

had just been appointed a new attorney who “could not fully represent her 

at a default hearing.” The Department of Child Safety (DCS) concedes error

and asks that this court vacate the termination order and remand for further 

proceedings. For the reasons set forth below, the court accepts the 

confession of error. Accordingly, this court vacates the order terminating 

Mother’s parental rights to A.K. and S.K. and remands for further 

proceedings consistent with this decision.

¶2 After DCS filed dependency petitions in May 2017 (for A.K.) 

and June 2017 (for S.K.), the children were found dependent as to Mother 

in September 2017. The case plan was changed to severance and adoption

and, in January 2018, DCS filed a motion to terminate Mother’s parental 

rights. Mother denied the allegations at an initial termination hearing, 

where the court set a March 20, 2018 pretrial conference. 

¶3 On March 1, 2018, Mother’s attorney moved to withdraw; the 

court granted that motion on March 2, 2018 and ordered that a new attorney 

be appointed to represent Mother. At the March 20, 2018 pretrial 

conference, the court appointed a new attorney to represent Mother. 

Although Mother was not present at that hearing, the minute entry from 

that hearing states “[i]t is believed the [M]other is currently at a visitation 

with the children.” Mother’s new attorney called the parent aide 

supervising the visit and Mother then appeared by telephone at the hearing.
DOMINIQUE M. v. DCS, et al.

Decision of the Court

3

¶4 Among other things, the minute entry from that hearing 

states “[t]he parent aide reports the visit today is a standing appointment 

and was not set by the case manager;” Mother continued to deny the 

allegations in the motion to terminate; Mother was not present because the 

visit conflicted with the pretrial conference; and “Mother acknowledges 

that her failure to appear for the Pretrial Conference is because it slipped 

her mind that she had Court. This is not good cause to fail to appear. 

Nonetheless, [M]other is present telephonically so the Court proceeds.”

¶5 Mother’s telephonic presence was intermittent. The minute 

entry shows Mother was present from 11:45 to 11:47 a.m.; then “no longer 

present” until 11:48 a.m.; then present until 11:52; then “no longer present.” 

The minute entry also states that while “trial date and time are discussed, 

[M]other disconnects from the call” and continues:

THE COURT FINDS the [M]other voluntarily 

chose to disconnect the telephone call after 

expressing displeasure with the date for the 

Contested Severance Trial and therefore the 

Court will proceed by default as to the [M]other 

given her failure to appear or remain on the 

phone until the setting of a trial date and time.

LET THE RECORD REFLECT that counsel for 

the [M]other objects to the Court proceeding by 

default as to the [M]other.

¶6 Although confirming the substance of this minute entry, the 

transcript from the hearing reflects frustration by Mother that the possible 

trial setting would conflict with her work schedule, that her newlyappointed attorney was attempting to explain to Mother what the court was 

doing when she disconnected the call and that Mother’s newly-appointed 

attorney was concerned because he knew “very little about the case other 

than the petition.” Mother’s attorney added, “[s]o I need to object on the 

record. I think that she should not have been defaulted at this time, and she 

should have had her due process rights protected with a trial.”
DOMINIQUE M. v. DCS, et al.

Decision of the Court

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¶7 The court overruled these objections, received evidence,

granted the motion to terminate Mother’s parental rights and relieved

Mother’s newly-appointed attorney “of further responsibility as counsel for 

the [M]other in this matter, after the running of appellate time.” This timely 

appeal by Mother followed.

¶8 In a termination proceeding, indigent parents have a right to 

appointed counsel. See Ariz. Rev. Stat. § 8-221(B) (2018); Christy A. v. Ariz. 

Dep’t of Econ. Sec., 217 Ariz. 299, 307 ¶ 28 (App. 2007). This right applies 

even when a parent fails to appear and the court proceeds in the parent’s 

absence. Brenda D. v. Dep’t of Child Safety, 243 Ariz. 437, 446 ¶ 30 (2018). An 

absent parent’s counsel has the right to “fully participate in the hearing on 

the parent’s behalf, including a right to cross-examine the state’s witnesses, 

object to proffered evidence, and present witnesses or other evidence.” Id.

A court’s failure to allow a parent’s counsel to “effectively participate” in a 

severance proceeding is reversible error. Daniel Y. v. Ariz. Dep’t of Econ. Sec., 

206 Ariz. 257, 260 ¶ 12 (App. 2003).

¶9 DCS concedes that Mother did not receive the benefit of her 

right to counsel in this case. 

Her counsel had just been appointed, had not 

yet familiarized himself with the case, and other 

than a telephone conversation with her that 

morning, had not yet discussed the case with 

her or even met her. Although he was present 

throughout the proceeding, his lack of 

familiarity with the case rendered him unable to 

effectively participate and represent Mother’s 

interests at trial. She was, in essence, 

unrepresented. Because DCS concedes that 

Mother was denied her due process and 

statutory rights to effective representation, this 

Court need not consider Mother’s other 

arguments on appeal.

In light of this concession of error, DCS requests 

that the Court vacate the juvenile court’s order 

terminating Mother’s parental rights to [the 

children] and remand this matter for further 

proceedings.
DOMINIQUE M. v. DCS, et al.

Decision of the Court

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¶10 The court accepts this confession of error for these reasons. 

Accordingly, the order terminating Mother’s parental rights is vacated and 

this matter is remanded for further proceedings. Given this ruling, this 

court need not, and expressly does not, address Mother’s argument that 

DCS did not meet its burden of proof at the March 20, 2018 pretrial 

conference regarding best interests.