IN THE

SUPREME COURT OF THE STATE OF ARIZONA

MARIANNE N.,

Appellant,

v.

DEPARTMENT OF CHILD SAFETY, O.N., I.T., A.G.,

Appellees.

No. CV-16-0259-PR

Filed September 25, 2017

Appeal from the Superior Court in Coconino County

The Honorable Margaret A. McCullough, Judge

No. JD2009-0008

AFFIRMED

Opinion of the Court of Appeals, Division One

240 Ariz. 470 (App. 2016)

VACATED IN PART

COUNSEL:

Chad Joshua Winger (argued), Harris & Winger, P.C., Flagstaff; Attorneys

for Marianne N.

Mark Brnovich, Arizona Attorney General, Dominic E. Draye, Solicitor 

General, Nicholas Chapman-Hushek (argued), JoAnn Falgout, Assistant 

Attorney Generals, Phoenix, Attorneys for Department of Child Safety
MARIANNE N. V. DEPARTMENT OF CHILD SAFETY, O.N., I.T., A.G.

Opinion of the Court

2

JUSTICE TIMMER authored the opinion of the Court, in which CHIEF 

JUSTICE BALES, VICE CHIEF JUSTICE PELANDER, and JUSTICE

BRUTINEL joined. JUDGE PETER J. ECKERSTROM,∗ joined by JUSTICES 

BOLICK and GOULD, dissented. 

JUSTICE TIMMER, opinion of the Court:

¶1 When termination of parental rights proceedings are initiated 

by motion in a pending dependency action, A.R.S. § 8-863(C) authorizes the 

juvenile court to find that a parent waived legal rights and admitted the 

motion’s allegations if the parent “does not appear at the hearing.” The 

court may then terminate that parent’s relationship with the child. Rule 

64(C), Ariz. R.P. Juv. Ct., authorizes the court to proceed in the same 

manner if a parent fails without good cause to appear at “the initial hearing, 

pretrial conference, status conference or termination adjudication hearing.”

¶2 We here hold that applying Rule 64(C) in pretrial proceedings

does not conflict with § 8-863(C) in violation of the separation of powers 

required by the Arizona Constitution, article 3.

BACKGROUND

¶3 The Department of Child Safety (“DCS”) took custody of 

Marianne N.’s three children in February 2015 and placed them in foster 

care. In June, after a hearing at which Marianne testified, the juvenile court 

found the children dependent as to her on the ground of neglect. (The court 

also found the children dependent as to their respective fathers. The 

fathers’ parental rights are not at issue here.) The court found that 

Marianne had continuing substance abuse issues and had exposed the 

children to inappropriate caregivers and safety risks. The court ordered

DCS to continue providing family reunification services.

¶4 Marianne’s participation in services was sporadic, and the 

children remained in foster care. At a permanency hearing held on

 ∗ Justice John R. Lopez IV recused himself. Pursuant to article 6, 

section 3 of the Arizona Constitution, the Honorable Peter J. Eckerstrom, 

Judge of the Arizona Court of Appeals, Division Two, was designated to sit 

in this matter.
MARIANNE N. V. DEPARTMENT OF CHILD SAFETY, O.N., I.T., A.G.

Opinion of the Court

3

November 30, the court changed the case plan to severance and adoption

and directed DCS to file a motion to terminate Marianne’s parental rights. 

DCS did so on the grounds of neglect, chronic abuse of dangerous drugs, 

and the length of time the children had been in an out-of-home placement. 

See A.R.S. § 8-533(B)(2), (3), (8).

¶5 The court held an initial termination hearing on December 18, 

which Marianne attended. The court scheduled a mediation and pretrial 

hearing for January 20, 2016, and set the termination adjudication hearing 

for February 24. The court provided Marianne a written notice (“the Form 

3”) informing her, in relevant part, as follows:

You are required to attend all termination 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 Initial Termination Hearing, Termination Pre-trial 

Conference, or Termination Adjudication Hearing without 

good cause, the Court may determine that you have waived 

your legal rights, and admitted the allegations in the 

motion/petition for termination. The hearings may go 

forward in your absence, and the Court may terminate your 

parental rights to your child based on the record and evidence 

presented.

See Ariz. R.P. Juv. Ct. 65(D)(3) (requiring court at the initial hearing to notify 

a parent of the substance of Form 3). The Form 3 also stated that a 

mediation would take place on January 20, 2016, at 1:00 p.m. followed by a 

pretrial conference at 1:45 p.m. Marianne signed the form. The court

likewise verbally warned Marianne twice that if she failed to attend future 

proceedings, it could proceed without her and find that she waived her 

rights and admitted DCS’s allegations. Marianne did not respond to the 

court’s warnings. Before concluding the hearing, the court found that 

Marianne had been “advised of the consequences of failure to attend future 

hearings.”

¶6 Marianne did not appear at the scheduled mediation and 

pretrial hearing on January 20. Her attorney made “several attempts to 

contact her” by telephone without success. The court found that Marianne
MARIANNE N. V. DEPARTMENT OF CHILD SAFETY, O.N., I.T., A.G.

Opinion of the Court

4

had notice of the hearing date and time, as shown by the Form 3, and had 

been warned about the consequences for non-attendance.

¶7 The court found that Marianne failed to appear without good 

cause and proceeded to conduct a termination hearing pursuant to Rule 

64(C), which authorizes the court to proceed to a final termination hearing 

when a parent fails to appear without good cause at a pretrial conference. 

The court also found that Marianne had been served with the motion for 

termination of parental rights. DCS elicited testimony from a caseworker, 

and Marianne’s attorney cross-examined her.

¶8 Thirty minutes after the hearing started, Marianne called the 

court asking to appear telephonically. She conferred separately with her 

attorney, who then related Marianne’s explanation that the Form 3 listed a 

different date for the hearing. The court disbelieved Marianne because the 

Form 3 in the court’s file listed the correct hearing date. The court therefore 

refused to permit Marianne to appear telephonically but indicated it would 

reconsider the decision if Marianne’s copy of the Form 3, which may have 

been filled out separately from the original, bore an incorrect hearing date. 

(She never submitted her copy for inspection.

¶9 At the conclusion of the hearing, the court found that DCS 

had proven all three statutory grounds for termination by clear and 

convincing evidence and that termination was in the children’s best 

interests. The court therefore terminated Marianne’s parental rights. (The 

court also terminated parental rights of one of the fathers who did not 

attend the hearing. It confirmed the termination adjudication hearing date 

for the other two fathers who attended the hearing.).

¶10 Marianne appealed. Marianne N. v. Dep’t of Child Safety, 240 

Ariz. 470 (App. 2016). She argued for the first time that Rule 64(C) conflicts

with A.R.S. § 8-863(C), which addresses the consequences for a parent’s 

failure to appear at a hearing, and thus violates separation-of-powers 

principles. Id. at 472–73 ¶ 8. The court of appeals disagreed. It did not 

address whether the rule and statute conflicted but instead concluded that 

Rule 64(C) is a procedural rule and therefore was promulgated in a 

constitutional exercise of this Court’s authority. Id. at 474 ¶ 14.
MARIANNE N. V. DEPARTMENT OF CHILD SAFETY, O.N., I.T., A.G.

Opinion of the Court

5

¶11 We granted review to decide the constitutionality of Rule 

64(C), a recurring issue of statewide importance. We have jurisdiction 

pursuant to article 6, section 5(3) of the Arizona Constitution and A.R.S. 

§ 12-120.24.

DISCUSSION

I.

A.

¶12 We here decide only whether Rule 64(C) violates separationof-powers principles—the sole issue presented by Marianne—a 

constitutional issue that we review de novo. See State v. Nordstrom, 230 Ariz. 

110, 115 ¶ 17 (2012). Before this Court, Marianne has not argued that the 

juvenile court abused its discretion under Rule 64(C) by proceeding to a 

termination hearing without her participation. Nor has she argued that 

applying Rule 64(C) denied her due process or interfered with her liberty 

interest in parenting her children.

B.

¶13 Before turning to the merits, we consider DCS’s argument

that Marianne waived her challenge by failing to raise it to the juvenile 

court. Although generally we refuse to address an argument raised for the 

first time on appeal, that principle is jurisprudential, not jurisdictional. See 

City of Tucson v. Clear Channel Outdoor, Inc., 209 Ariz. 544, 552 ¶ 33 n.9 (2005). 

In light of the statewide significance of the issue here, and because the court 

of appeals decided it, we address the merits of Marianne’s challenge. Cf. id.

(noting that “good reason exists” to decide an issue not raised to the 

superior court when the issue has statewide importance and the court of 

appeals addressed it).

II.

A.

¶14 The Arizona Constitution divides governmental powers 

among the legislative, the executive, and the judicial departments, “and no 

one of such departments shall exercise the powers properly belonging to 

either of the others.” Ariz. Const. art. 3. Although this Court has the 
MARIANNE N. V. DEPARTMENT OF CHILD SAFETY, O.N., I.T., A.G.

Opinion of the Court

6

exclusive power to govern procedural matters in Arizona courts, Ariz. 

Const. art. 6, § 5(5), it cannot enlarge or diminish substantive rights created 

by statute. Daou v. Harris, 139 Ariz. 353, 357–58 (1984).

¶15 Parental-termination proceedings are initiated by motion,

when dependency proceedings are ongoing, and otherwise by petition. See 

A.R.S. §§ 8-533(A) (petition), -862(D) (motion). Section 8-863, which applies 

when termination proceedings are initiated by motion in a dependency 

proceeding, as here, provides:

A. At least ten days before the initial hearing on the 

termination of parental rights pursuant to this article, the 

party who is responsible for filing a motion pursuant to 

§ 8-862, subsection D shall serve the motion on all parties as 

prescribed in rule 5(c) of the Arizona rules of civil procedure

. . . .

B. The court may terminate the parental rights of a parent if 

the court finds by clear and convincing evidence one or more 

of the grounds prescribed in § 8-533.

C. If a parent does not appear at the hearing, the court, after 

determining that the parent has been served as provided in 

subsection A of this section, may find that the parent has 

waived the parent’s legal rights and is deemed to have 

admitted the allegations of the petition by the failure to 

appear. The court may terminate the parent-child relationship 

as to a parent who does not appear based on the record and 

evidence presented as provided in rules prescribed by the 

supreme court.

¶16 Rule 64(C) provides notice procedures in termination 

hearings, whether initiated by motion or petition:

C. Notice of Hearing. A notice of hearing shall accompany 

the motion or petition for termination of parental rights and 

shall advise the parent . . . of the location, date and time of the 

initial termination hearing. In addition to the information 

required by law, the notice of hearing shall advise the parent
MARIANNE N. V. DEPARTMENT OF CHILD SAFETY, O.N., I.T., A.G.

Opinion of the Court

7

. . . that failure to appear at the initial hearing, pretrial 

conference, status conference or termination adjudication 

hearing, without good cause, may result in a finding that the 

parent . . . has waived legal rights, and is deemed to have 

admitted the allegations in the motion or petition for 

termination. The notice shall advise the parent . . . that the 

hearings may go forward in the absence of the parent . . . and 

may result in the termination of parental rights based upon 

the record and evidence presented.

This rule implicitly authorizes the juvenile court to terminate parental 

rights by default if a parent fails to appear without good cause at any one 

of four types of court proceedings. See Adrian E. v. Ariz. Dept. of Econ. Sec., 

215 Ariz. 96, 100 ¶ 12 (App. 2007) (noting that reading Rule 64(C) as a 

notice-only provision would render it meaningless in motion-initiated 

termination actions). Marianne does not contest that Rule 64(C) applies 

here if this Court had the authority to promulgate it. (It is therefore 

unnecessary to respond to the dissent’s recasting of Rule 64(C) as “an overinclusive, omnibus notice” that purposefully warns parents about 

consequences the juvenile court is not authorized to impose. See infra ¶¶ 

57–59).

¶17 Marianne argues that Rule 64(C) diminished the substantive 

rights conferred by A.R.S. § 8-863(C) by authorizing the juvenile court to 

find that she waived legal rights and admitted the motion’s allegations by 

failing to appear at the pretrial conference, rather than the scheduled 

termination adjudication hearing, and then terminating her rights based on 

the record and evidence presented. DCS counters that Rule 64(C) does not 

conflict with § 8-863(C) and, even if it does, the court of appeals correctly 

found that the rule is procedural and thus properly promulgated by this 

Court.

¶18 We need not decide whether § 8-863(C) and Rule 64(C) are

procedural or substantive because we agree with DCS that they can be 

harmonized. See State v. Hansen, 215 Ariz. 287, 289 ¶ 7 (2007) (“Rules and 

statutes should be harmonized wherever possible and read in conjunction 

with each other.” (internal quotation marks and citation omitted)).
MARIANNE N. V. DEPARTMENT OF CHILD SAFETY, O.N., I.T., A.G.

Opinion of the Court

8

B.

¶19 We begin by addressing the meaning of § 8-863(C). Marianne

asserts that “the hearing” in § 8-863(C) refers solely to a final termination 

adjudication hearing and therefore grants parents the substantive right to 

appear and participate in that hearing regardless of any failure to attend 

prior hearings or proceedings. She argues that Rule 64(C) diminishes that 

right when applied to pre-termination adjudication hearing proceedings.

¶20 The identity of “the hearing” in § 8-863(C) is unclear. It most 

likely refers to the “initial hearing,” as that is the only hearing mentioned 

in the statute. A.R.S. § 8-863(A). And the juvenile court can find a waiver 

of legal rights based on non-appearance at “the hearing” only if the parent 

was served with the motion for termination, which sets forth the date and 

time for the initial hearing, not the termination adjudication hearing. Id. 

§§ 8-862(D)(2), -863(C). But the statute also sets forth the standard for

terminating parental rights, making it plausible that “the hearing” means 

the termination adjudication hearing. See id. § 8-863(B).

¶21 We need not resolve this ambiguity. Even assuming

Marianne is correct that “the hearing” in § 8-863(C) refers to the termination 

adjudication hearing, Rule 64(C) does not diminish any substantive rights 

arguably conferred by that statute. Nothing in § 8-863(C) restricts “the 

hearing” to a previously scheduled termination adjudication hearing or 

requires that notice be given in advance of the hearing. Cf. Farris v. 

Advantage Capital Corp., 217 Ariz. 1, 2 ¶ 5 (2007) (declaring that statutory 

text is the best indicator of legislative intent). Other than directing when 

the motion for termination must be served on a parent, § 8-863 leaves it to 

this Court to provide the procedural framework for making the termination 

decision. Cf. Daou, 139 Ariz. at 357-58 (“The power to govern procedural 

matters for all courts, however, is vested exclusively with this court.”); 

Kenneth T. v. Ariz. Dep’t of Econ. Sec., 212 Ariz. 150, 152 ¶ 10 (App. 2006) 

(approving termination of parental rights by summary judgment, 

reasoning that “whether the case is resolved by default, a motion to dismiss, 

motion for summary judgment, or by trial, is a question of procedure.”). 

¶22 The procedural framework created by this Court includes 

Rule 64(C), which authorizes the juvenile court to “go forward” with a 

termination adjudication hearing at the time scheduled for a pretrial 
MARIANNE N. V. DEPARTMENT OF CHILD SAFETY, O.N., I.T., A.G.

Opinion of the Court

9

proceeding if the parent fails to attend without good cause. Section 8-

863(C) does not curtail the juvenile court’s authority to convert a scheduled 

pretrial conference into a termination adjudication hearing, as Marianne 

was repeatedly warned could occur in the event of her non-attendance. 

(Indeed, the statutes governing motion-initiated termination proceedings 

do not mention pretrial conferences.) When the juvenile court “go[es] 

forward” with the adjudication termination hearing in the parent’s absence, 

it can proceed as contemplated by § 8-863(C) by determining that the parent 

was served with the motion to terminate parental rights. It may then find 

that a parent has waived her legal rights by failing to appear at the 

termination adjudication hearing and then terminate the parent-child 

relationship based on the record and evidence presented. A.R.S. § 8-863(C). 

The rule and statute work harmoniously.

¶23 The legislative history for § 8-863(C) supports our view. 

Subsection (C) was added to § 8-863 in 1999 as part of a comprehensive 

packet of new laws affecting child safety and welfare. In part, the 

legislature sought to “resolve[] the problem posed by” Don L. v. Arizona 

Department of Economic Security, 193 Ariz. 556 (App. 1998), “which held that 

the juvenile court lacked authority to sever parental rights by default in the 

absence of a court rule or statute granting that authority.” Ariz. State Senate 

Fact Sheet for S.B. 1109, 44th Leg., 1st Reg. Sess. (Apr. 30, 1999).

¶24 The situation in Don L. is analogous to the one here and 

illuminates the legislature’s intent. The child there was adjudicated 

dependent, and DCS’s predecessor eventually petitioned to terminate the 

father’s parental rights. Don L., 193 Ariz. at 557-58 ¶ 2. (The law was 

amended after the events there to permit the termination of parental rights

to be initiated by motion in a pending dependency action rather than by 

petition. See A.R.S. § 8-862(D), Historical and Statutory Notes; 1998 Ariz. 

Leg. Serv. Ch. 276 (H.B. 2645)). At the initial termination hearing, as here, 

the court admonished the father to attend all future hearings and warned 

that his failure to attend could result in the entry of a default judgment. Don 

L., 193 Ariz. At 557-58 ¶ 2. The father subsequently failed to appear at a 

status hearing, so the court found he had admitted the petition allegations

and conducted a termination adjudication hearing. Id. at 558 ¶¶ 2-3. After 

hearing testimony and admitting evidence proving the petition allegations, 

the court terminated the father’s parental rights. Id. ¶ 3. The court of 

appeals reversed because nothing “allow[ed] the juvenile court to sever 
MARIANNE N. V. DEPARTMENT OF CHILD SAFETY, O.N., I.T., A.G.

Opinion of the Court

10

parental rights by ‘default’ solely because the parent fails to attend a status 

hearing.” Id. ¶ 6.

¶25 The legislature’s goal of “resolv[ing] the problem posed by“ 

Don L. is only achieved by interpreting § 8-863(C) as permitting the juvenile 

court to conduct a termination adjudication hearing at a time scheduled for 

a pretrial conference when a parent fails to appear without good cause. If 

we viewed the provision as narrowly as Marianne, the problem presented 

in Don L. would remain unresolved.

¶26 Our view is also supported by considering that Marianne’s 

interpretation would result in treating motion-initiated termination 

proceedings differently from petition-initiated proceedings. We find no 

basis for doing so.

¶27 When the legislature enacted § 8-863(C), it also enacted 

provisions requiring the juvenile court in petition-initiated proceedings to 

conduct an initial hearing, a pretrial conference or status conference, and a 

termination adjudication hearing. See A.R.S. § 8-535(A)-(B), (E); S.B. 1109, 

44th Leg., 1st Reg. Sess. (Ariz. 1999). It simultaneously provided that if a 

parent fails to appear at any of these proceedings, the court may find that 

the parent waived his or her legal rights and admitted the petition’s 

allegations and then terminate the parent’s rights based on the record and 

evidence presented. See A.R.S. §§ 8-535(D), -537(C).

¶28 Under Marianne’s view, adopted by the dissent, the court 

could find that a parent who does not attend a pretrial conference waived 

legal rights and admitted termination allegations and then terminate that 

parent’s rights after receiving sufficient evidence in petition-initiated 

proceedings but not in motion-initiated proceedings. But the legislature 

enacted the motion-initiated termination process in pending dependency 

cases “so that children can be adopted more readily and at an earlier age.” 

Mara M. v. Ariz. Dep’t of Econ. Sec., 201 Ariz. 503, 505-06 ¶ 16 (App. 2002). It 

is unfathomable that the legislature would intend that the court could 

accelerate proceedings in petition-initiated proceedings but not in motioninitiated ones. This is particularly true as dependent children have already 

endured a period of uncertainty before initiation of termination 

proceedings. Interpreting § 8-863(C) as we do results in parallel 
MARIANNE N. V. DEPARTMENT OF CHILD SAFETY, O.N., I.T., A.G.

Opinion of the Court

11

acceleration procedures regardless of how the termination proceedings 

were initiated.

¶29 The dissent speculates that the legislature singled out 

petition-initiated proceedings for different treatment because judges know 

less about the alleged termination grounds there than in motion-initiated 

proceedings, which have a dependency track record. The theory is that a 

parent’s non-appearance at a pretrial conference in petition-initiated 

proceedings therefore justifies acceleration to a final termination hearing to 

avoid the risk of obstructing and delaying a child’s 

permanency. See infra ¶¶ 45-47. In short, the less the judge knows about a 

case the more justified proceeding to a final termination hearing if a parent 

fails to appear at a pretrial conference. That conjecture is illogical. Whether 

the case is initiated by petition or motion, when a parent fails without good 

cause to attend a pretrial conference, proceeding to termination provides a 

strong incentive for attendance and prevents delay in the resolution of the 

child’s status, a goal—unlike the dissent’s speculative rationale—that is 

supported by the legislative history.

¶30 Marianne argues that by omitting references to a pretrial 

conference and status conference in § 8-863(C), the legislature evidenced its 

intent to create different procedures for petition-initiated and motioninitiated termination proceedings. But no reason existed for the legislature 

to refer to these proceedings in § 8-863(C) because, unlike with petitioninitiated proceedings, no pretrial conferences are required in motioninitiated proceedings. (The dependency action preceding motion-initiated 

proceedings already requires the court to hold a settlement conference or 

pretrial conference or order mediation.) The legislature only required the 

court in motion-initiated proceedings to hold an initial hearing and a 

termination adjudication hearing. A.R.S. § 8-862(D)(2).

¶31 In sum, we agree with the court of appeals’ holding but for a 

different reason. Rule 64(C) does not enlarge or diminish any substantive 

rights granted by § 8-863(C). The rule and statute work in harmony, and 

there is no separation-of-powers violation.
MARIANNE N. V. DEPARTMENT OF CHILD SAFETY, O.N., I.T., A.G.

Opinion of the Court

12

CONCLUSION

¶32 We vacate ¶¶ 7 – 14 of the court of appeals’ opinion and affirm 

the juvenile court’s termination of Marianne’s parental rights.

JUDGE ECKERSTROM, joined by JUSTICES BOLICK AND GOULD, 

dissenting:

¶33 The majority holds today that Marianne N., a mother who 

appeared at all fourteen hearings in her dependency case, and attempted to 

appear telephonically at the pretrial conference regarding DCS’s motion to 

terminate her parental rights, was properly “defaulted” under Arizona law. 

Because I cannot agree that A.R.S. § 8-863(C) can be read to authorize such 

a result and because Rule 64(C), Ariz. R.P. Juv. Ct., is most plausibly 

understood as a notice provision designed to facilitate that statute, I 

respectfully dissent. 

¶34 The United States Supreme Court long ago observed that a 

parent’s right to “care, custody, management and companionship of [his 

or] her minor children” is “far more precious” than any property interest, 

May v. Anderson, 345 U.S. 528, 533, (1953), and has determined that right is 

fundamental. Stanley v. Illinois, 40 U.S. 645, 651 (1972). Accordingly, both

the United States Supreme Court and Arizona courts have repeatedly held 

that the state may not interfere with the relationship between parents and 

their children without providing due process of law. Carolina H. v. Ariz. 

Dep’t of Econ. Sec., 232 Ariz. 569, 571 ¶ 6 (App. 2013) (listing cases).

¶35 As the majority points out, whether application of Rule 64(C) 

here deprived Marianne of her due process rights or interfered with her 

liberty interest in parenting her children is not before us. But as explained 

below, the text of § 8-863(C) strikes a careful balance between these 

important parental rights and a child’s need for permanency. In so doing, 

it does not authorize the forfeiture of a parent’s due process rights for 

failing to attend a pretrial conference. Nor should we read Rule 64(C) as 

anything other than what it purports to be—a notice provision designed to 

facilitate the legislature’s default scheme for terminations initiated by both 

motions and petitions.
MARIANNE N. V. DEPARTMENT OF CHILD SAFETY, O.N., I.T., A.G.

JUDGE ECKERSTROM, joined by JUSTICES BOLICK and GOULD,

DISSENTING

13

¶36 In construing the rule and the statute, we must be cognizant 

that pretrial conferences in motion-initiated severance proceedings arise 

near the end of dependency proceedings. See A.R.S. §§ 8-841 to 8-847 (pretermination dependency proceedings), 8-862. And, a parent’s failure to 

attend a pretrial conference risks no delay in the scheduled termination 

hearing or the child’s permanency. See A.R.S. §§ 8-862(D)(2), 8-864(2) (court 

under strict deadline to hold termination hearing). In apparent recognition 

of this, Arizona statute does not authorize the forfeiture of a parent’s due 

process rights for failure to attend a pretrial conference during the 

severance proceedings initiated by motion.

¶37 In enacting § 8-863, the legislature established important 

procedural protections for a parent facing termination arising out of 

dependency proceedings, including the right to notice of those proceedings 

and the benefit of an elevated standard of proof as to statutorily specified 

grounds for termination. The legislature also identified the lone 

circumstance under which important due process rights may be deemed 

waived: the parent’s failure to appear at the termination hearing. A.R.S. 

§ 8-863(C) (logically referring to the termination proceeding referred to in 

subsection A and described in subsection B).

¶38 Any statutory provision that establishes consequences for a 

person’s failure to appear for legal proceedings necessarily strikes a balance 

between competing interests. Here, the statute balances the parent’s 

entitlement to due process against the state’s substantial interest in securing 

permanency for dependent children. See Andrew R. v. Ariz. Dep’t of Econ. 

Sec., 223 Ariz. 453, 460 ¶ 24 (App. 2010) (observing strong public policy in 

favor of securing permanency for children). Indeed, the sequential 

provisions in § 8-863 demonstrate precisely such a tension. Subections (A) 

and (B) of § 8-863 set forth procedural rights benefitting the parent: 

respectively, the right to receive notice of the motion to terminate and the 

right to an enhanced burden of proof as to statutorily specified grounds for 

termination. By contrast, subsection (C) subordinates a parent’s procedural 

entitlements to the child’s interest in a permanent home—when the parent’s 

non-appearance at the termination hearing would otherwise delay that 

permanence.
MARIANNE N. V. DEPARTMENT OF CHILD SAFETY, O.N., I.T., A.G.

JUDGE ECKERSTROM, joined by JUSTICES BOLICK and GOULD,

DISSENTING

14

¶39 Any expansion of the grounds for such a default would alter 

the balance expressed by the text of § 8-863. Therefore, to the extent 

Rule 64(C) is construed as intending to establish additional conditions for 

forfeiture or default beyond those enacted by our legislature, the rule 

cannot be harmonized with the statute. It would strike a different balance 

between competing interests.

¶40 The majority holds that the statute’s language does not 

expressly preclude default at a pretrial conference and therefore can be 

harmonized with its reading of Rule 64(C) as providing a supplementary 

forfeiture provision. Specifically, it maintains that “nothing in § 8-863(C) 

restricts ‘the hearing’ to a previously scheduled termination adjudication 

hearing . . . .” But, as the majority acknowledges, the legislature enacted 

§ 8-863(C), establishing procedures for termination by motion, at the same 

time it enacted § 8-537(C), a parallel provision setting forth procedures for 

termination by petition. Unlike § 8-863(C), the latter specifies that a parent’s 

non-appearance at “the pretrial conference, status conference or 

termination adjudication hearing” can result in forfeiture of substantial 

procedural rights. A.R.S. § 8-537(C).

¶41 Thus, when the legislature intended to sanction nonappearance at pretrial conferences with instant acceleration of the 

termination proceedings, it conveyed that intent expressly. That it declined 

to do so in § 8-863(C)—in legislation enacted the same day as part of the 

same general scheme and as to parallel procedural events—demonstrates 

that the omission was intentional rather than accidental. See City of Flagstaff 

v. Mangum, 164 Ariz. 395, 398 (1990) (“Where the legislature uses a term 

within one statute and excludes it from another, the term usually will not 

be read into the provision from which it was excluded.”).

¶42 Based on its plain language, § 8-863(C) expressly allows 

default only if the parent fails to attend the severance hearing. By its very 

title, “Hearing to terminate parental rights; notice; grounds,” the statute as 

a whole pertains to the termination hearing. All three subsections define 

features of a termination hearing: they describe, respectively, how it is 

noticed, the evidentiary burdens therefor, and the circumstances under 
MARIANNE N. V. DEPARTMENT OF CHILD SAFETY, O.N., I.T., A.G.

JUDGE ECKERSTROM, joined by JUSTICES BOLICK and GOULD,

DISSENTING

15

which a parent can forfeit procedural rights at the hearing. A.R.S. 

§ 8-863(A)-(C).1

¶43 Furthermore, the language of subsection (C) cannot be 

harmonized with the suggestion that its default provisions would apply to 

non-appearance at multiple types of hearings: the statute sanctions a parent 

for non-appearance at “the hearing”—a semantically singular event. Thus, 

§ 8-863(C) cannot be construed as providing such a default for failing to 

appear at a pretrial conference without adding words to the statute that the 

legislature chose not to include. See Calnimptewa v. Flagstaff Police Dep’t, 200 

Ariz. 567, 570 ¶ 13, (App. 2001) (“[W]e are not authorized to supply words 

that would extend the scope of a statute beyond that intended by the 

legislature.”).

¶44 But why would the legislature establish different forfeiture 

standards for terminations by petition than for terminations by motion? 

Indeed, as the majority correctly observes, children involved in motioninitiated severance proceedings have already endured a longer period of 

uncertainty. Would not permanency be more urgent for them? Why, then, 

would the legislature be more tolerant of a parent’s failure to appear in 

motion-initiated proceedings than those initiated by petition?

¶45 The answers rest in the procedural differences between these 

two proceedings. In termination proceedings arising by motion, the 

lawyers and parties have already appeared in court, usually numerous 

times, to address the underlying dependency. That is precisely what 

 1

 Arguably, § 8-863(C) can be read to authorize default for a parent’s 

non-appearance at the initial severance hearing. The phrase “the hearing” 

in subsection C could refer to either subsection B, which sets the evidentiary 

burden for the termination hearing, or subsection A, which refers to “the 

initial hearing on the termination of parental rights.” However, nothing in 

the text of the statute suggests that other types of hearings, such as a pretrial 

conferences, are included among events at which default could occur. 

Notably, non-appearance at either the initial severance hearing or the 

termination hearing would result in a potential delay of permanency if the 

Court lacked the power to proceed in the parent’s absence. This is not the 

case with non-appearance at status conferences or pretrial conferences. 
MARIANNE N. V. DEPARTMENT OF CHILD SAFETY, O.N., I.T., A.G.

JUDGE ECKERSTROM, joined by JUSTICES BOLICK and GOULD,

DISSENTING

16

occurred in this case. For this reason, the grounds for severance are well 

known by the court and the parties. Frequently, the relevant factual issues 

have already been explored and litigated, albeit in the context of a 

dependency. 

¶46 In contrast, petitions for termination initiate entirely new 

legal proceedings. Under such circumstances, planning hearings, such as 

pretrial conferences and status conferences, gain elevated importance. This 

is because courts must organize the gathering of evidence and coordination 

of schedules for new litigation. In that context, a parent’s failure to appear 

at such hearings has a greater potential to obstruct and delay the process 

for establishing the child’s permanency.

¶47 For this reason, pretrial conferences have comparatively less 

importance in motion-initiated proceedings. Indeed, as the majority points 

out, they are frequently not necessary and, for reasons discussed above, a 

parents’ non-appearance at them risks no delay whatsoever in establishing 

permanency. In assessing whether to sanction a parent for non-appearance 

at a hearing, the effect of that non-appearance on subsequent proceedings 

would be far from “illogical” consideration. It would be the primary 

consideration.

¶48 To be sure, the parallel termination statutes do not themselves 

articulate the purpose for the textual distinction between the types of 

hearings at which the parent may be defaulted. Thus, any explanation for 

variation—both the majority’s and that posited here—involves judicial 

speculation. But we must apply the words the legislature chose, not those 

we think they should have chosen. See Roosevelt Elementary Sch. Dist. No. 66 

v. State, 205 Ariz. 584, 592-93 ¶ 40 (App. 2003). At minimum, a plausible 

explanation exists for why the legislature established different default 

provisions for the two kinds of proceedings.

¶49 Indeed, the legislature has made plain its intent to enact 

distinct procedures for motion-initiated and petition-initiated severance 

proceedings. A.R.S. § 8-532(C) states: “This article [chapter 4, article 5; 

§§ 8-531 to 8-544] does not apply to termination proceedings conducted 

pursuant to article 11 of this chapter [§§ 8-861 to 8-864] . . . .” So directed, 

we demonstrate the greatest fidelity to legislative intent by applying 
MARIANNE N. V. DEPARTMENT OF CHILD SAFETY, O.N., I.T., A.G.

JUDGE ECKERSTROM, joined by JUSTICES BOLICK and GOULD,

DISSENTING

17

differently worded provisions in accord with their semantically distinct 

text.

¶50 The majority, however, reads § 8-863(C) as expressing 

identical intent to § 8-537(C), the default procedure applicable to petitioninitiated termination adjudication hearings. In so doing, the majority places 

considerable weight on the legislative history of the statutory scheme. 

From that history, it concludes that the legislature must have tacitly 

intended to create a default provision for parents who fail to attend a 

pretrial conference in motion-initiated proceedings. But based on 

traditional principles of statutory construction and interpretation, 

consideration of legislative history should only be relied on to resolve 

unclear or ambiguous text. See Metzler v. BCI Coca-Cola Bottling Co. of L.A., 

Inc., 235 Ariz. 141, 144-45 ¶ 13 (2014) (statute’s language controls “unless an 

absurdity or constitutional violation results”). The majority has not 

identified any ambiguity in § 8-863(C). No language in that provision

creates any confusion about whether a parent may be defaulted in a motioninitiated severance proceeding for failing to appear at a pretrial conference. 

Although the statute identifies a circumstance under which default may 

occur, non-appearance at a pretrial conference is not that circumstance.

¶51 Our traditional standards of interpretation subordinate 

legislative history to plain language for good reason: such history is often 

scant, fails to articulate the entire legislature’s intent, and may be unclear in 

its intended application to specific legal problems. See Antonin Scalia & 

Bryan A. Garner, Reading Law: The Interpretation of Legal Texts, 369-90 (2012) 

(itemizing the interpretive limitations of divining legislative intent from 

“legislative history”). I submit we encounter those very limitations in 

ascribing statutory intent from the legislative history here.

¶52 The majority directs us to the language in the Senate’s “Final 

Revised Fact Sheet” as expressing the legislature’s intentions when it 

enacted the statutory scheme. But, as a threshold matter, that fact sheet 

only purports to express the intentions of the Senate’s drafters—not those 

of the House of Representatives, whose vote was also necessary to pass it, 

or the Governor who signed it. Both were necessarily and primarily 

focused on whether they approved the procedures expressed by the words 

of § 8-863 itself. No individual legislator, in the House or the Senate, was 
MARIANNE N. V. DEPARTMENT OF CHILD SAFETY, O.N., I.T., A.G.

JUDGE ECKERSTROM, joined by JUSTICES BOLICK and GOULD,

DISSENTING

18

procedurally or legally confined to the rationale expressed in the Senate 

Fact Sheet.

¶53 Furthermore, the fact sheet’s reference to Don L. v. Ariz. Dep’t 

of Econ. Sec., 193 Ariz. 556 (App. 1998), does not necessarily demonstrate 

any intention by the drafters to be constrained by the specific features of that 

case. Indeed, the fact sheet itself suggests that the Senate understood Don 

L. to describe a more general problem—“that the juvenile court lacked 

authority to sever parental rights by default in the absence of a court rule 

or statute granting that authority.” Ariz. State Senate Fact Sheet for S.B. 

1109, 44th Leg., 1st Reg. Sess. (Apr. 30, 1999). Thus, nothing in the fact 

sheet demonstrates any legislative intent that the parallel statutes, §§ 8-

837(C) and 8-863(C), which provide such authority to juvenile courts, be 

read more expansively than the carefully-calibrated balance articulated 

therein.

¶54 Furthermore, as the majority points out, in Don L., the 

proceeding had been initiated by petition, 193 Ariz. 556, 557 ¶ 2, as all 

proceedings were at the time. See 1999 Ariz. Sess. Laws 1st Reg. Sess., ch. 

81, § 19 (adding § 8-862(E), directing courts to order parties to file 

termination motion). The father had failed to attend a status hearing and 

was defaulted. Don L., 193 Ariz. at 557 ¶ 3. The court of appeals reversed, 

determining that neither the statutes nor the rules provided for a default. 

Id. ¶ 8. 

¶55 To be sure, the petition in Don L. arose from a dependency 

proceeding, id. ¶ 2, and thus, to that extent would parallel the instant case. 

But the legislature responded to Don L. by enacting distinct provisions for 

terminations by motion and terminations by petition, each with its unique 

default language. In my view, we stand on uncertain ground to assume 

that the Senate’s reference in the fact sheet to Don L. expresses a legislative 

intent that the two default provisions should be read as facsimiles.

¶56 For the above reasons, I conclude that § 8-863(C) is subject to 

only one interpretation that pays primary allegiance to its text and pertinent 

context: a default is not authorized in a termination proceeding initiated by 

motion when a parent fails to appear at a pretrial conference.
MARIANNE N. V. DEPARTMENT OF CHILD SAFETY, O.N., I.T., A.G.

JUDGE ECKERSTROM, joined by JUSTICES BOLICK and GOULD,

DISSENTING

19

¶57 Rule 64(C), however, is broader than § 8-863(C). And, it is 

subject to two plausible interpretations: that it conflicts with the statute by 

adding types of hearings the legislature deliberately omitted, or that it can 

be harmonized with the statute because it is an over-inclusive, omnibus 

notice provision, subject to the limitations of the statute. For the reasons 

that follow, it is best understood as the latter.

¶58 Rule 64 (C) requires the movant or petitioner to warn parents 

that “failure to appear at the initial hearing, pretrial conference, status 

conference or termination adjudication hearing, without good cause” may 

result in a finding that the parent has admitted the allegations in the petition 

or motion, and has waived the parent’s legal rights. The next sentence 

requires a specific warning that, under such circumstances, “the hearing[] 

may go forward in the absence of the parent . . . and may result in the 

termination of parental rights . . . .” And, under the rule, the same notice—

including the notice of potential forfeiture of rights for non-appearance at a 

pretrial conference—must be given in the context of terminations initiated 

by either petition or motion.

¶59 By its terms, then, Rule 64(C) requires the notice to warn 

parents, even those whose proceedings have been initiated by motion, that 

their rights may be forfeited by non-appearance at a pretrial conference. 

The rule therefore implies that the law authorizes such a forfeiture. Read 

this way, Rule 64(C) would add grounds for forfeiture not found in 

§ 8-863(C). So construed, Rule 64(C) would constitute a supplementary 

forfeiture provision in contradiction to the statutory balance struck by the 

legislature in § 8-863.

¶60 But Rule 64(C) can also be plausibly read in conformity with 

its apparent contextual role: to facilitate the pre-existing statutory default 

scheme, set forth in §§ 8-537(C) and 8-863(C), by providing comprehensive 

and clear notice to parents of the potential consequences of non-appearance 

under either statute. Read in this manner, the notice’s warning of forfeiture 

for non-appearance at pretrial conferences pertains only to parents whose 

rights are being terminated by petition, in accordance with §§ 8-533 and 

8-537. The same warning is equally necessary, but over-inclusive, as to 

parents in motion-initiated proceedings who may be defaulted only if they 

fail to appear at a termination hearing. Notably, the drafters may have 
MARIANNE N. V. DEPARTMENT OF CHILD SAFETY, O.N., I.T., A.G.

JUDGE ECKERSTROM, joined by JUSTICES BOLICK and GOULD,

DISSENTING

20

viewed any over-inclusiveness as procedurally helpful given that such 

parents should appear at all hearings.

¶61 While both interpretations can be logically derived from the 

language of the rule, there are sound reasons to adopt the latter. First, 

Rule 64(C) plainly reads more as a notice statute than as an independent, 

supplementary default provision. It is entitled “Notice of Hearing” rather 

than “Grounds for Forfeiture” and its language is exclusively devoted to 

describing the contents of a “notice” rather than substantive grounds for 

forfeiture. Furthermore, had this Court intended to expand the grounds for 

forfeiture beyond those established by statute, it presumably would have 

done so in a separate subsection, rather than by implication from a sentence 

buried in a notice provision. Indeed, the juvenile rules do make direct 

provision for default in the immediately subsequent Rules 65 and 66, which 

squarely address the procedural features of initial and final termination 

hearings, respectively.

¶62 The remaining language in Rule 64(C) comprehensively 

addresses every possible default scenario: the notice must include 

advisories for terminations by “motion or petition,” it must be served on 

“parent[s], guardian[s] or Indian custodian[s],” and it must contain the 

“location, date and time” of the initial termination hearing. In that context, 

one can view the rule as an omnibus notice provision, harmlessly overinclusive in an effort to provide an exhaustive warning to parents whose 

rights may be terminated in their absence.

¶63 Perhaps most importantly, however, our jurisprudence 

provides clear direction as to which plausible interpretation of Rule 64(C) 

we should adopt. That precedent instructs that we should seek “to 

harmonize, whenever possible, related statutory and rule provisions.” 

Metzler, 235 Ariz. at 144-45 ¶ 13; State v. Hansen, 215 Ariz. 287, 289 ¶ 7 (2007). 

If we interpret Rule 64(C) as a notice provision designed to facilitate 

§ 8-863(C)—rather than as a supplementary forfeiture provision that would 

conflict with the statute—we would comply with that directive.

¶64 In summary, § 8-863(C) contains no language authorizing a 

parent’s forfeiture of procedural rights for non-appearance at a pretrial 

conference. That omission was no oversight but rather the result of a 
MARIANNE N. V. DEPARTMENT OF CHILD SAFETY, O.N., I.T., A.G.

JUDGE ECKERSTROM, joined by JUSTICES BOLICK and GOULD,

DISSENTING

21

specific legislative directive to treat motions for termination differently 

than petitions for termination. Therefore, the juvenile court’s finding—that 

Marianne had forfeited her right to attend the termination hearing by 

failing to attend the pretrial conference—was not a finding authorized by 

statute.

¶65 Nor was it a finding authorized by Rule 64(C). Although that 

rule can plausibly be construed as expressing the Court’s intent to strike a 

different balance than the legislature, it can also be read to instead facilitate, 

but not expand, the legislature’s default scheme with an exhaustive—and 

benignly over-inclusive—notice provision. The latter reading conforms 

best to the commands of our separation of powers jurisprudence and the 

evident textual purpose of Rule 64 understood as a whole.

¶66 I therefore respectfully dissent and would reverse the juvenile 

court’s termination of Marianne’s parental rights.