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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

CRYSTAL F., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, L.S., Appellees.

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

Counsel for Appellee Department of Child Safety

FILED 5-8-2018
CRYSTAL 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.’ father 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 failed 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 forward 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 

hearing, 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 her 
CRYSTAL 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 

hearings 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 to the court for determination. The 

court found the allegations true by a preponderance of the evidence and 

found L.S. dependent. The court set a case plan of family reunification 

concurrent with severance and adoption.

¶6 Mother was referred for drug testing and substance-abuse 

treatment, but her referrals were closed due to failure to participate and 

lack of contact. Mother entered into a sober living house, but was 

discharged 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 parentaide services, but missed some visits with L.S. and refused to attend oneon-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 Pretrial Conference, Settlement Conference, or Dependency 

Adjudication Hearing 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 child 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 initial severance 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 parentchild relationship, based on the grounds of six and nine months’ out-ofhome placement under Arizona Revised 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 DCS 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 continued initial severance hearing. Mother’s counsel 

stated he emailed Mother notice of the hearing.

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

the hearing to October 4, 2017. Mother again failed to attend the October 4 

continued initial severance hearing. The court proceeded in Mother’s 

absence. DCS believed Mother was in an inpatient facility, but stated 

Mother did have access to email communications with DCS because she 

had contacted them on August 31. After receiving evidence and testimony, 

the court terminated 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 failed 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 preponderance of 
CRYSTAL 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 the 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 affirmatively prove prejudice, and show that a reasonable 

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

mere speculation. State v. Dickinson, 233 Ariz. 527, 531, ¶ 13 (App. 2013).

¶16 Mother claims the court deprived her of a fair trial due to its 

failure to provide her notice of the proceeding or that her rights could be 

terminated 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 proceedings of the consequences if she failed to appear, and cannot 

claim error in this regard.

¶18 Mother additionally claims the court did 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 notice 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 failed 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 addition 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 case 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 severance 

hearing set for October 4. And although DCS disclosed to Mother’s counsel

that Mother may have been in an inpatient treatment facility on October 3, 

one day prior to the hearing, DCS stated Mother had been in contact with 

DCS by email, and therefore 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 

ineffective 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 law 
CRYSTAL 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 reasonable 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 appear 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. But 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. Nor 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 provided 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 superior court’s 

order terminating Mother’s parental rights to L.S.

 

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

at 325, ¶ 17.