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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE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

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

CRYSTAL F.

, Appellant

,

v.

DEPARTMENT OF CHILD SAFETY, L.S.

, Appellee s

.

No. 1 CA

- JV 17

- 0500

Appeal from the Superior Court in Maricopa County

No. JD530259 The Honorable Colleen L. French

, Judge Pro Tempore

AFFIRMED

COUNSEL

Maricopa County Legal Defender’s Office , Phoenix By Kathryn E. Harris Counsel for Appellant

Arizona Attorney General’s Office

, Phoenix By Sandra L. Nahigian C ounsel for Appellee Department of Child Safety FILED 5-8-2018CRYSTAL F. v. DCS, L.S.
Decision of the Court

2 MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which Presiding Judge Michael J. Brown and Judge David D. Weinzweig joined.

C R U Z
, Judge:

¶1 Crystal F. (“Mother”) appeals the superior court’s order terminating her parental rights. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 Mother is the biological parent of L.S., born October 29, 2015.

¶3 In August 2016, the Department of Child Safety (“DCS”) took L.S. into custody after receiving reports that Mother and L.S.’ f ather were neglecting her and engaging in domestic violence. On September 1, 2016, DCS filed a dependency petition, alleging L.S. was dependent because Mother neglected L.S. as a result of domestic violence and fa iled to protect her from her father’s substance abuse. The superior court then entered an order setting hearings on the dependency petition, which included the following warning :

You are hereby advised that your failure to appear without good cause may result in a finding that you waived your legal rights and have admitted the allegations in the Petition. In addition, if you fail to appear without good cause, the hearings may go f

orward in your absence and may result in an adjudication of dependency, termination of your parental rights or the establishment of a permanent guardianship based upon the record and evidence presented to the Court[.]

(Emphasis added.)

¶4 On September 8, 2016, the court held a preliminary protective h earing, which Mother attended. The court provided Mother with Form 1, Notice to Parent in Dependency Action, and explained to Mother its contents advising her of her responsibilities and the consequences for herCRYSTAL F. v. DCS, L.S.
Decision of the Court

3 failure to appear at future hearings. 1 Mother indicated she understood Form 1’s contents. The preliminary protective order and order setting court hear ings included similar language.

¶5 On November 17, 2016, the court held a contested dependency hearing

. Mother denied the allegations in the petition, but submitted the issue of dependency t o the court for determination. The court found the allegations true by a preponderance of the evid ence and found L.S. dependent. The court set a case plan of family reunification

concurren t with severance and adoption.

¶6 Mother was referred for drug testing and substance

- abuse treatment, but her referrals were closed due to failure to pa rticipate and lack of contact. Mother entered into a sober living house, but was di scharged before completing the program due to leaving after curfew, acting erratically, and eating oleander flowers and leaves. Mother claimed she left because she did not like the rules. Mother participated in parent

aide services, but missed some visit s with L.S. and refused to attend one

on

- one sessions, and failed to maintain contact with DCS

.
¶7 On July 25, 2017, the court held a report and review hearing. Mother did not appear. The court changed the case plan to severance and

1 Form 1 provides:

You are required to attend all court hearings. If you cannot attend a court hearing, you must prove to the Court that you had good cause for not attending. If you fail to attend the Pre

trial C onference, Settlement Conference, or Dependency Adjudication H earing without good cause, the Court may determine that you have waived your legal rights and admitted the allegations in the dependency petition . The
Court may go forward with the Dependency Adjudication Hearing in your absence and may rule that your ch ild is dependent based on the record and evidence presented.

. . . If you do not participate in reunification services or fail to attend further proceedings without good cause, the Court may terminate your parental rights . . . .

Ariz. R.P. Juv. Ct., Form 1. Notice to Parent in Dependency Action.CRYSTAL F. v. DCS, L.S.
Decision of the Court

4 adoption and set an init ial severan ce hearing for August 22, 2017. The DCS
case manager informed Mother of the change.

¶8 On August 14 , DCS filed a motion to terminate the parent

child relationship, based on the grounds of six and nine months’ out

- of

home placement under Arizona R e vised Statutes (“A.R.S.”) section 8

- 533(B)(8)(a) and (b), and its notice of hearing on said motion.

¶9 Mother failed to appear at the August 22 initial severance hearing. The court continued the hearing to September 20, 2017. On August 31, Mother notified D CS that she had been in a car accident. Mother also notified DCS that she would be entering a rehabilitation service at Horizon Human Services in Casa Grande. Mother again failed to appear at the September 20 contin ued initial severance hearing. Mother’s counsel stated he e m ailed Mother notice of the hearing.

¶10 The court found Mother was properly served, and continued

t he hearing to October 4, 2017. Mother again failed to attend the October 4 continued initial severance hearing. The court proceede d in Mother’s absence. DCS believed Mother was in an inpatient facility, but stated Mother did have access to e mail communications with DCS because she had contacted them on August 31. After receiving evidence and testimony, the court term inated Mother’s rights to L.S.

¶11 Mother timely appealed the termination order. We have jurisdiction pursuant to A.R.S. §§ 8

- 235, 12

- 120.21(A)(1), and 12

- 2101(A)(1).

DISCUSSION

¶12 Mother argues the superior court violated her due process rights when it terminated her parental rights in absentia

.
¶13 We review constitutional claims de novo

. Nash v. Nash , 232 Ariz. 473, 481, ¶ 31 (App. 2013). However, even constitutional claims can be waived if not raised below. State v. Lefevre , 193 Ariz. 385, 389, ¶ 15 (App. 1998). Mother fail ed to raise her claim below, and so we review her unpreserved claim for fundamental error. Brenda D. v. Dep’t of Child Safety

, 243 Ariz. 437, 447, ¶ 37 (2018).

¶14 Parents have a fundamental right in the care, custody, and control of their children, but that right is not without its limitations. Minh T. v. Ariz. Dep’t of Econ. Sec. , 202 Ariz. 76, 79, ¶ 14 (App. 2001). A court may sever a parent’s rights if it finds by clear and convincing evidence one of the statutory grounds for severance, and finds by a pr eponderance ofCRYSTAL F. v. DCS, L.S.
Decision of the Court

5 evidence that severance is in the child’s best interests. A.R.S. § 8

- 533(B); Kent K. v. Bobby M. , 210 Ariz. 279, 284, ¶ 22 (2005). If a parent fails to appear without good cause at th e initial hearing, the court may, after finding procedural prerequisites have been met, invoke the substantive effects of that failure and proceed with termination in the parent’s absence. Brenda
D. , 243 Ariz. at 443, 448, ¶¶ 20, 32; Ariz. R.P. Juv. Ct. 66(D)(2).

¶15 To prevail on fundamental error review, Mother must demonstrate: (1) the court erred; (2) the error was fundamental; and (3) that prejudice resulted. Brenda D. , 243 Ariz. at 437

- 38, ¶ 38. An error is fundamental if it goes to the foundation of the case. Id. at 448. To prevail, Mother must a ffirmatively prove prejudice, and show that a reasonable fact

- finder could have reached a different result. Id. Mother cannot rely on mere speculation

. State v. Dick i nson , 233 Ariz. 527 , 531, ¶ 13 (App. 2013)

.
¶16 Mother claims the court depriv ed her of a f air trial due to its failure to provide her notice of the proceeding or that her rights could be

term inated if she failed to attend.

¶17 Mother claims the court did not provide her notice that the court could proceed with termination in her absence, however a review of the record reveals she was provided such notice more than once . The court provided Mother with a Form 1 at the preliminary protective hearing in September 2016, included multiple warnings in its orders during the proceedings, and provided Mother ’s counsel with Form 3 before the initial termination hearing

. 2 Mother was admonished several times by the court during proceed ings of the consequences if she failed to appear, and cannot claim error in this regard.

¶18 Mother additionally claims the court di d not provide her notice of the initial termination hearing. Mother did not challenge the court’s determination that she failed to appear without good cause at the superior court, and so we review her due process claim for fundamental

error only

. See Brenda D. , 243 Ariz. at 447, ¶ 37.

2 Arizona Rule of Civil Procedure 5(c)(1) provides that service of a termination motion be provided to counsel, which includes the admonishment, and while it may not provide actual notice, it is a manner of notic e reasonably calculated to notify a parent of a pending termination proceeding and comports with due process. See Mara M. v. Ariz. Dep’t of
Econ. Sec. , 201 Ariz. 503, 508, ¶ 28 (App. 2002).CRYSTAL F. v. DCS, L.S.
Decision of the Court

6 ¶19 Mother fai led to attend the July 25, 2017 hearing , at which the August 22 date for the initial hearing was set. Mother similarly failed to appear at the August 22 hearing, and the rescheduled September 20 hearing, in add ition to the October 4 hearing at which Mother’s rights were severed. Mother concedes that “she was served with the Termination Motion and the Notice of Hearing through her counsel, ” and that she

“ communicated with the DCS ca se manager on August 31, 2017, ” showing that she was able to maintain contact during the proceedings.

¶20 Mother argues the court erred because it failed to clarify whether her counsel mailed her a notice of the termination motion or hearing at the inpatient facility at which she resided, and on which date counsel emailed Mother. We first note that Mother never states that she did not actually receive notice; she only states that the record is unclear whether she did, facts peculiarly within her knowledge. Second, a parent is obligated to maintain contact with counsel. Hackin v. First Nat’l Bank of Ariz., Phx. , 5 Ariz. App. 379, 385 (1967). Mother did not maintain contact. Nor did she prove a valid reason why. Monica C. v. Ariz. Dep’t of Econ. Sec.

, 211 Ariz. 89, 95, ¶ 27 (App. 2005) ( “The burden of proof, in a fundamental error setting, is on the complaining party.”). Third, Mother’s counsel stated he mailed Mother a copy of the Form 3 to her last known address and sent her an email letting her know the date and time of the initial se verance hearing set for October 4. And a lthough DCS disclosed to Mother’s counsel that Mother may have been in an inpatie nt treatment facility on October 3

, one day prior to the hearing , DCS stated Mother had been in contact with DCS by email, and therefo re should have had access to notice of the hearing date.

¶21 For the foregoing reasons, we hold that Mother has not demonstrated error occurred or that she was prejudiced by the alleged error. Although Mother claims these supposed errors prejudiced her case, she does not present evidence controverting the court’s findings such that a reasonable fact

- finder could have reached a different result.

¶22 Finally, Mother claims her counsel abandoned her, was inadequate, and that such inadequacy prejudiced her. In other words, she contends her counsel was ineffective. 3 To prevail on her claim, Mother

3 Arizona courts have not explicitly decided whether a claim of
i neffective assistance of counsel may justify relief in a termination proceeding. See John M. v. Ariz. Dep’ t of Econ. Sec. , 217 Ariz. 320, 322

- 24, ¶¶ 8

- 12 (App. 2007). Here, we assume without deciding that Arizona lawCRYSTAL F. v. DCS, L.S.
Decision of the Court

7 must demonstrate that counsel’s representation fell below prevailing norms, and were sufficient to undermine confidence in the outcome of the proceeding, giving rise to a re asonable probability that, but for counsel’s errors, the result would have been different. John M. v. Ariz. Dep’t of Econ.
Sec. , 217 Ariz. 320, 324, 325

, ¶¶ 13

- 14, 18 (App. 2007).

¶23 Mother claims her counsel abandoned her, but a review of the record reveals that, while counsel requested to be withdrawn at the outset of the October 4 hearing, counsel advocated on her behalf after his request was denied. Mother claims her counsel failed to ask for a further continuance, but ignores the fact she failed to appe ar at the three previous hearings and failed to respond to, or keep in contact with, her counsel. Mother claims counsel was inadequate because he was unaware of her whereabouts until one day prior to her hearing, at which point he discovered she may have been in an inpatient facility. B ut Mother never shows prejudice. She points to no documentation or evidence that she would have presented if she had been able to challenge the court’s good cause determination . N or does she cite to any evidence she would have presented at the hearing had she appeared. Despite Mother’s claim that the record does not reveal with exact specificity when counsel notified Mother of the hearing, counsel stated he notified Mother of the hearing and DCS stated Mother’s counsel pr ovided Mother with notice of the hearing. Based on the record, Mother fails to show counsel’s representation fell below prevailing norms, and further fails to show how counsel’s actions prejudiced her.

CONCLUSION

¶24 For the foregoing reasons, we affirm the s uperior court’s order terminating Mother’s parental rights to L.S.

would permit relief based on a cl aim of ineffective assistance of counsel. Id

. at 325, ¶ 17.