IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

TRACY D., TARAH D., Appellants,

v.

DEPARTMENT OF CHILD SAFETY, T.D., Appellees.

No. 1 CA-JV 20-0204 

Appeal from the Superior Court in Maricopa County

Nos. JD 20340 

 JS 20198

The Honorable Jo Lynn Gentry, Judge

AFFIRMED

COUNSEL

The Stavris Law Firm PLLC, Scottsdale

By Alison Stavris

Counsel for Appellant, Tracy D.

Denise L. Carroll Esq., Scottsdale

Counsel for Appellant, Tarah D.

Arizona Attorney General’s Office, Tucson

By Autumn Spritzer

Counsel for Appellee, Department of Child Safety

FILED 12-30-2021
TRACY D., TARAH D. v. DCS, T.D.

Opinion of the Court

2

OPINION

Judge Michael J. Brown delivered the opinion of the Court, in which 

Presiding Judge Jennifer M. Perkins and Judge David B. Gass joined.

B R O W N, Judge:

¶1 Tracy D. (“Father”) and Tarah D. (“Mother”) appeal the 

juvenile court’s dependency and termination orders concerning their 

daughter, T.D. Both parents challenge the court’s subject matter 

jurisdiction under the Uniform Child Custody Jurisdiction and 

Enforcement Act (“UCCJEA”), and Mother argues the court denied her due 

process when it conducted the consolidated adjudication hearing by 

telephone. Neither parent challenges the merits of the dependency or 

termination orders. Because the court had default jurisdiction under the 

UCCJEA, and Mother was not denied due process, we affirm.

BACKGROUND

¶2 In 2012, after a contested hearing, the juvenile court 

terminated Mother’s parental rights to two older children (involving a 

different father) based on chronic substance abuse. In March 2019, after 

receiving no contest pleas from each parent, the court terminated Mother 

and Father’s parental rights to two other children, again due to chronic 

substance abuse. Sometime in May that year, and near the end of her 

pregnancy with T.D., Mother traveled to Indiana, where her parents lived. 

Father remained in Arizona.

¶3 Mother gave birth to T.D. in early June 2019. She returned to 

Arizona with T.D. about seven weeks after the child was born. After 

receiving a report about T.D.’s welfare, the Department of Child Safety 

(“DCS”) investigated and took the child into temporary custody. DCS then 

petitioned for dependency on August 12, 2019, alleging the parents

neglected T.D. because of their substance abuse and were unwilling or 

unable to provide effective parental care. DCS also alleged Mother gave 

birth to T.D. in Indiana to avoid DCS involvement.

¶4 On September 18, 2019, DCS petitioned to terminate parental 

rights, alleging chronic substance abuse and prior termination due to the 

same cause as to both parents, and neglect as to Mother. See A.R.S. § 8-
TRACY D., TARAH D. v. DCS, T.D.

Opinion of the Court

3

533(B)(2)–(3), (10). DCS noted both parents’ long history of substance abuse

and specifically alleged that Mother tested positive for methamphetamine 

during her pregnancy with T.D. as recently as the end of January 2019.

¶5 After scheduling delays, the court conducted a consolidated 

dependency/termination hearing on April 24 and 28, 2020. Because of 

health and safety concerns arising from the COVID-19 pandemic, the court 

conducted the hearing by telephone. The court later granted both petitions, 

finding T.D. dependent as to both parents, DCS proved all three statutory 

grounds for termination by clear and convincing evidence, and DCS met its 

burden of showing that termination of parental rights was in the child’s best 

interests by preponderance of the evidence. Each parent timely appealed,

and we have jurisdiction under A.R.S. § 8-235(A).

DISCUSSION

A. Subject Matter Jurisdiction

1. Procedural History

¶6 In its termination ruling, the juvenile court found that T.D. 

had “been physically present within Arizona at all relevant times . . . [and]

Arizona is the ‘home state’ of [T.D.] under the [UCCJEA].” On appeal,

Father argued for the first time that the juvenile court lacked subject matter 

jurisdiction, contending T.D.’s home state was Indiana, not Arizona. 

Although the juvenile court had summarily concluded Arizona was T.D.’s 

home state, because the parties had not addressed the issue, we stayed the 

appeal and remanded to allow the juvenile court to conduct further 

proceedings to determine its jurisdiction under the UCCJEA.

1 See Bruce v. 

State, 126 Ariz. 271, 272 (1980) (“Jurisdiction cannot be waived and may be 

raised at any stage of the proceedings.”). 

¶7 On remand, the juvenile court held a UCCJEA conference 

with a circuit court judge from Jay County, Indiana, where Mother had 

given birth. Mother briefly testified, though no other parties were given the 

opportunity to cross-examine or to present additional evidence. The 

juvenile court then stated that it appeared “Indiana would be the home 

state” because Mother intended to reside there with T.D. after birth. When 

1 Consistent with the child’s best interests, this avoidable step shows 

the wisdom in having the parties and the juvenile court address 

jurisdictional issues at the outset of dependency and termination 

proceedings.
TRACY D., TARAH D. v. DCS, T.D.

Opinion of the Court

4

asked about Indiana’s “inclination in terms of exercising jurisdiction,” the 

Indiana judge explained he was unaware of any dissolution matter or 

Indiana Department of Child Services (“Indiana DCS”) investigation

involving T.D., but he would defer to the juvenile court’s decision. The 

juvenile court then directed that a copy of T.D.’s file be provided to the 

Indiana judge and canceled a previously scheduled oral argument on 

jurisdiction. 

¶8 The Indiana judge and an attorney with Indiana DCS

participated in a follow-up status conference with the juvenile court. The 

attorney stated he did not think Indiana had jurisdiction, as Indiana DCS

had not received a report about T.D. at birth, and thus Indiana lacked a 

sufficient connection to the child to “open a case.” The Indiana judge said 

he would defer to the juvenile court’s ruling, but noted he could not compel 

Indiana DCS to initiate proceedings for T.D. At the same hearing, T.D.’s

guardian ad litem (“GAL”) explained he had been unable to attend the 

prior UCCJEA conference and did not receive notice that the oral argument 

on jurisdiction had been vacated. In response, the juvenile court scheduled 

an evidentiary hearing to permit the parties to present evidence and to 

allow the court to make factual findings affecting jurisdiction. 

¶9 Following the hearing, the juvenile court found that Arizona 

was T.D.’s home state at the time of the “commencement of the dependency 

and termination proceedings,” and Mother and T.D.’s presence in Indiana 

for a period of weeks after the child was born was merely a temporary 

absence from Arizona. After considering Mother’s testimony and other 

evidence, the court reasoned in part that, other than her own assertions,

there was “no indicia of Mother’s intent to remain in Indiana.” After 

receiving the court’s ruling, we permitted the parties to file supplemental 

briefing addressing the court’s UCCJEA ruling.

2. Analysis

¶10 We review de novo whether the juvenile court has subject

matter jurisdiction under the UCCJEA. Gutierrez v. Fox, 242 Ariz. 259, 264, 

¶ 17 (App. 2017). But to the extent a court’s jurisdictional decision depends 

on its resolution of disputed facts, we will accept the court’s findings if they 

are supported by reasonable evidence. Holly C. v. Tohono O’odham Nation, 

247 Ariz. 495, 505, ¶ 26 (App. 2019). We also review de novo the 

interpretation of statutes. Nicaise v. Sundaram, 245 Ariz. 566, 567, ¶ 6 (2019). 

“We interpret statutory language in view of the entire text, considering the 

context and related statutes on the same subject.” Id. at 568, ¶ 11. 
TRACY D., TARAH D. v. DCS, T.D.

Opinion of the Court

5

¶11 “The jurisdiction and authority of the courts of this state in all 

proceedings and matters affecting juveniles shall be as provided by the 

legislature . . . .” Ariz. Const. art. VI, § 15. As the legislature has mandated, 

jurisdiction over interstate child custody proceedings is governed by the 

UCCJEA. See A.R.S. §§ 25-1002(4)(A), 25-1031(A)(1); Angel B. v. Vanessa J., 

234 Ariz. 69, 73, ¶ 14 (App. 2014). Almost all states have adopted the 

UCCJEA, Sha’quia G. v. Dep’t of Child Safety, 251 Ariz. 212, 214, ¶ 9 (App. 

2021), including Arizona, A.R.S. §§ 25-1001 to -1067, and Indiana, Ind. Code. 

§§ 31-21-1-1 to -7-3. 

¶12 Mother and Father first argue the juvenile court proceedings 

should have ended after the initial UCCJEA conference when the court 

concluded Indiana was likely the home state. Nothing in the record, 

however, shows the court intended that statement as a final ruling; in fact,

the court decided to conduct a full evidentiary hearing after the GAL

pointed out the procedural irregularities of the earlier UCCJEA hearing.

The court acted within its discretion in conducting additional proceedings 

and then entering a definitive jurisdictional ruling. Thus, we turn to 

UCCJEA’s statutory framework to decide whether the court had subject

matter jurisdiction to hear the dependency and termination petitions. 

¶13 Except for temporary emergency jurisdiction, under the 

UCCJEA, an Arizona court 

has jurisdiction to make an initial child custody 

determination only if any of the following is true:

1. This state is the home state of the child on the date of the 

commencement of the proceeding, or was the home state of 

the child within six months before the commencement of the 

proceeding and the child is absent from this state but a parent 

or person acting as a parent continues to live in this state.

2. A court of another state does not have jurisdiction under 

paragraph 1 or a court of the home state of the child has 

declined to exercise jurisdiction on the ground that this state 

is the more appropriate forum under § 25-1037 or 25-1038 and 

both of the following are true:

(a) The child and the child’s parents, or the child and at least 

one parent or a person acting as a parent, have a significant 

connection with this state other than mere physical presence.
TRACY D., TARAH D. v. DCS, T.D.

Opinion of the Court

6

(b) Substantial evidence is available in this state concerning 

the child’s care, protection, training and personal 

relationships.

3. All courts having jurisdiction under paragraph 1 or 2 have 

declined to exercise jurisdiction on the ground that a court of 

this state is the more appropriate forum to determine the 

custody of the child under § 25-1037 or 25-1038.

4. A court of any other state would not have jurisdiction under 

the criteria specified in paragraph 1, 2 or 3.

A.R.S. § 25-1031(A). This UCCJEA subsection “is the exclusive 

jurisdictional basis for making a child custody determination by a court of 

this state.” A.R.S. § 25-1031(B). We must therefore determine which of the 

statutory grounds for jurisdiction—home state, significant connection, 

more appropriate forum, or jurisdiction by default—apply to the 

circumstances presented here. 

¶14 We first look to see if either Arizona or Indiana had home 

state jurisdiction under § 25-1031(A)(1). For a child less than six months 

old, the “[h]ome state” is “the state in which the child lived from birth with a 

parent or person acting as a parent, including any period during which that 

person is temporarily absent from that state.” A.R.S. § 25-1002(7)(b)

(emphasis added). Because T.D. was less than six months old when these 

proceedings began, we look to the circumstances existing when DCS filed 

its dependency and termination petitions to determine home state 

jurisdiction under § 25-1031(A)(1). See A.R.S. § 25-1002(5) 

(“‘Commencement’ means the filing of the first pleading in a proceeding.”). 

DCS filed the petition for dependency on August 12, 2019, and the petition 

for termination of parental rights on September 18, 2019. See A.R.S. § 25-

1002(4)(a) (“‘Child custody proceeding’ [m]eans a proceeding, including a 

proceeding for . . . neglect, abuse, dependency, guardianship, paternity, [or] 

termination of parental rights . . . in which legal custody, physical custody 

or visitation with respect to a child is an issue or in which that issue may 

appear.”); Sha’quia G., 251 Ariz. at 217, ¶ 20 (explaining the child custody 

proceeding referenced in § 25-1002(7)(a) “is the motion or petition then 

pending before the court”). 

¶15 Parents argue the juvenile court lacked subject matter 

jurisdiction because Indiana, and not Arizona, is T.D.’s “home state” under 

the UCCJEA. DCS defends the court’s ruling on the grounds that Mother’s 
TRACY D., TARAH D. v. DCS, T.D.

Opinion of the Court

7

stay in Indiana constituted a temporary absence from Arizona under § 25-

1002(7)(b).

¶16 When T.D. was in Indiana for approximately seven weeks 

after her birth, an Indiana court arguably could have exercised jurisdiction

in making an initial custody determination if such a request had been made. 

But that issue is not before us. Instead, we initially determine, under the 

first clause of § 25-1031(A)(1), whether any state had home state jurisdiction 

when DCS commenced the dependency and termination proceedings. See

A.R.S. § 25-1031(A)(1) (referencing the “home state of the child on the date 

of the commencement of the proceeding”); A.R.S. § 25-1002(7)(b) (when a 

child is less than six months old, the court will look to see whether, when 

the proceedings commenced, the child lived “from birth” in the state). On 

both of those dates, T.D. was living in Arizona, in the custody of DCS. 

Because she was no longer living “from birth” in Indiana, Indiana is not the 

home state under the first clause of § 25-1031(A)(1).

¶17 Likewise, Indiana is not the home state under the second 

clause. See A.R.S. § 25-1031(A)(1) (A “state has jurisdiction to make an 

initial custody determination” if it was “the home state of the child within 

six months before the commencement of the proceeding and the child is 

absent from this state but a parent or person acting as a parent continues to live in 

this state.”) (Emphasis added.) The second clause necessarily includes

children who are less than six months old. See Gutierrez, 242 Ariz. at 265, 

¶ 21. In Gutierrez, the child was born in Arizona and lived here for two 

months. Id. at 266, ¶ 22. The mother then moved to Wisconsin with the 

child, and about two months later Father petitioned to establish custodyrelated matters in Arizona. Id. As Gutierrez explained, because the child 

was born in Arizona, and the father remained in Arizona after the mother’s 

relocation with the child to Wisconsin, Arizona was the home state under 

the UCCJEA. Id. at ¶ 23. 

¶18 In contrast, when DCS commenced the proceedings in this 

case, Mother was not “living” in Indiana, as confirmed by the juvenile 

court’s finding that she had significant ties to Arizona and offered nothing 

except self-serving testimony to suggest she planned on returning to 

Indiana to live. See Holly C., 247 Ariz. at 505, ¶ 26 (we defer to the court’s 

findings of fact underlying a jurisdictional determination so long as they 

are supported by reasonable evidence). Thus, Indiana could not exercise 

home state jurisdiction under the second clause of § 25-1031(A)(1) because

Mother did not live there, and Father still lived in Arizona. See Gutierrez, 

242 Ariz. at 262, ¶ 2; see also Ind. Code § 31-21-5-1(a)(1) (“Indiana . . . was 

the home state of the child within six (6) months before the commencement 
TRACY D., TARAH D. v. DCS, T.D.

Opinion of the Court

8

of the proceeding, and the child is absent from Indiana but a parent or 

person acting as a parent continues to live in Indiana.”) (Emphasis added). 

¶19 Contrary to DCS’s contention, however, Arizona is not T.D.’s 

home state under § 25-1031(A)(1). T.D. did not live in Arizona “from birth” 

because she was born in Indiana. See A.R.S. § 25-1002(7)(b); Meyeres v. 

Meyeres, 196 P.3d 604, 607, ¶ 5 (Utah Ct. App. 2008) ([“B]ecause the child 

was less than six months old when the proceedings were commenced, the 

only state that could be the child’s home state was the state in which [the 

child] had lived with a parent since birth.”); In re D.T., 743 A.2d 1077, 1081 

(Vt. 1999) (holding that Vermont was not 10-week-old child’s home state 

because the child did not live in Vermont from birth). 

¶20 Additionally, Arizona does not have home state jurisdiction 

under the theory that Mother’s stay in Indiana was merely a temporary 

absence from Arizona. The temporary absence provision of § 25-1002(7)(b) 

comes into play only when a parent temporarily leaves the state where the 

child was born and then returns to that state, so the provision has no 

application here. See A.R.S. § 25-1002(7)(b) (defining “[h]ome state,” for 

child less than six months old, as the state where “the child lived from birth

with a parent,” including any period when the parent is “temporarily 

absent from that state”); In re Tieri, 283 S.W.3d 889, 894 (Tex. App. 2008) 

(explaining that, under Texas’s version of the UCCJEA, “[a]lthough a 

temporary absence of a parent is part of the period, there is no provision for 

the children’s temporary absence from the state”). 

¶21 When there is no home state under § 25-1031(A)(1), the 

second ground for jurisdiction, a “significant connection,” may allow a state 

to exercise jurisdiction. See A.R.S. § 25-1031(A)(2)(a). But neither Arizona 

nor Indiana had a “significant connection” with T.D. at the relevant time. 

As of the filing of the dependency petition, T.D. had lived in Arizona for 

less than two weeks, and when the termination petition was filed she had 

lived in Arizona for about seven weeks. Given those circumstances, T.D. 

had no “significant connection” to Arizona, or Indiana, other than her 

physical presence. See id. Moreover, we cannot conclude that “substantial 

evidence” exists in this record, as of the commencement of the proceedings, 

concerning T.D.’s “care, protection, training and personal relationships” in 

either state. See A.R.S. § 25-1031(A)(2)(b). 

¶22 The third ground for exercising subject matter jurisdiction 

applies when a state with jurisdiction declines to exercise that jurisdiction 

because another state is a more appropriate forum. See § 25-1031(A)(3) (“All 

courts having jurisdiction under paragraph 1 or 2 have declined to exercise 
TRACY D., TARAH D. v. DCS, T.D.

Opinion of the Court

9

jurisdiction on the ground that a court of this state is the more appropriate 

forum . . . .”). That provision does not apply here because neither Arizona 

nor Indiana has jurisdiction under § 25-1031(A)(1) or (2).

¶23 It is the fourth ground for jurisdiction, § 25-1031(A)(4), that 

allows Arizona to exercise jurisdiction over these proceedings. Under that 

provision, a state may exercise jurisdiction when no other state has 

jurisdiction under any of the first three grounds. Because Indiana lacks 

such jurisdiction, Arizona has jurisdiction under § 25-1031(A)(4) consistent 

with its state constitutional and statutory authority. See Ariz. Const. art. VI, 

§ 15 (“The jurisdiction and authority of the courts of this state in all 

proceedings and matters affecting juveniles shall be as provided by the 

legislature . . . .”). “The juvenile court [has] exclusive original jurisdiction 

over petitions to terminate the parent-child relationship when the child 

involved is present in the state.” A.R.S. § 8-532(A) (emphasis added); see also

A.R.S. § 8-201(21) (“’Juvenile court’ means the juvenile division of the 

superior court when exercising its jurisdiction over children in any 

proceeding relating to delinquency, dependency or incorrigibility.”). T.D. 

was present in Arizona when DCS filed its petitions for dependency and 

termination; accordingly, under § 25-1031(A)(4) Arizona’s juvenile court 

had subject matter jurisdiction to consider both petitions and all related 

proceedings involving T.D.’s care and custody. 

¶24 A key purpose of the UCCJEA is to avoid jurisdictional 

conflicts by creating “consistency in interstate child custody jurisdiction 

and enforcement proceedings.” Angel B., 234 Ariz. at 72, ¶ 7 (citation and 

quotation omitted); see also Welch-Doden v. Roberts, 202 Ariz. 201, 206, ¶ 24 

(App. 2002). Our analysis reflects this purpose because there has never 

been any kind of case relating to T.D., much less a custody determination, 

filed in or order issued by an Indiana court. And other than participating 

in the brief hearings conducted by the juvenile court to resolve subject 

matter jurisdiction, neither Indiana’s courts nor Indiana DCS have any 

connection to this child. The parents cite no authority suggesting a court 

that makes an initial custody determination under its state constitutional 

and statutory authority may lose jurisdiction under the UCCJEA without 

any actual jurisdictional conflict with another state. Cf. Holly C., 247 Ariz. 

at 507, ¶ 34 (noting “§ 8-202 is of little help in determining jurisdiction when 

there is a competing jurisdictional claim of another state” (emphasis added)). 

¶25 Because the juvenile court was authorized under Arizona law 

to make an initial custody determination under § 25-1031(A)(4) and § 8-532

when DCS filed its petitions, and made subsequent custody determinations

throughout the proceedings, the juvenile court has continuously retained 
TRACY D., TARAH D. v. DCS, T.D.

Opinion of the Court

10

subject matter jurisdiction over these matters. See Angel B., 234 Ariz. at 72, 

¶ 11 (citing A.R.S. § 25-1032(A)) (“Once a court with original jurisdiction 

issues an initial child custody order, the UCCJEA gives that court exclusive, 

continuing jurisdiction over all future custody determinations, subject to 

statutory exceptions.”); Melgar v. Campo, 215 Ariz. 605, 607, ¶ 11 (App. 2007)

(recognizing that “[t]he rule of exclusive, continuing jurisdiction remains 

the jurisdictional lodestar until either the court that originated the order 

determines that the child’s connection with the state is too attenuated or 

that the child and parents no longer reside in the state”).

B. Telephonic Hearing

¶26 Mother argues the juvenile court violated her constitutional 

rights and abused its discretion when it conducted the dependency and 

termination hearing by phone. Acknowledging the importance of the 

interests at stake, we conclude the court’s decision to hold a telephonic 

hearing did not violate Mother’s due process rights and was within the 

court’s discretion.

1. Due Process

¶27 In the weeks before the consolidated hearing, the COVID-19 

pandemic prompted our supreme court to issue various administrative 

orders requiring courts to limit in-person proceedings and to use other 

means to take testimony. On April 14, 2020, Mother moved to continue the 

dependency/termination hearing until it could be safely conducted in 

person. She contended a telephonic hearing would violate her due process 

rights to assist her counsel and would create a risk of erroneous credibility 

determinations. 

¶28 DCS opposed the motion and urged the court to determine 

whether, after balancing Mother’s liberty interests against the state’s

interests, “the inherent value of in-person testimony is outweighed in these 

circumstances by the risk to trial participants’ health, given the present 

threat of an easily transmitted and potentially fatal virus in the 

community.” DCS argued the hearing could be “conducted remotely 

without unduly sacrificing due process protections,” explaining that 

exhibits could be distributed electronically to all parties, and that if 

communication issues arose the court would retain the option of continuing 

a portion of the hearing to address specific issues. 

¶29 The juvenile court denied Mother’s motion, citing an 

administrative order issued by our supreme court, which directed the 

juvenile court to use remote technologies in lieu of in-person hearings due 
TRACY D., TARAH D. v. DCS, T.D.

Opinion of the Court

11

to the public health crisis. See Ariz. Sup. Ct. Admin. Order No. 2020-47

(Mar. 16, 2020); see also Ariz. Sup. Ct. Admin. Order No. 2020-60 (Apr. 6, 

2020); Ariz. Sup. Ct. Admin. Order No. 2020-70 (Apr. 16, 2020). Noting the 

hearing had already been delayed for several months, the court further 

reasoned that

[w]hile procedural due process may typically require inperson termination or dependency adjudications, the right to 

in-person proceedings may be limited where it is justified by 

necessity. At this current time, Arizona is in the midst of the 

COVID-19 pandemic. In person proceedings place the health 

and safety of all participants at risk. Moreover, there is no 

immediate indication of when it will be safe to return to fully 

in-person proceedings, with all participants present in court. 

Given the ongoing pandemic, and the reality of there not 

being an obvious end in sight, this Court concludes that 

Mother’s procedural due process rights will not be violated 

by proceeding with a telephonic termination/dependency 

trial. 

¶30 At the outset of the April 24 hearing, Mother’s counsel 

renewed her objection to participating telephonically, and Father’s counsel 

joined the objection. The GAL also objected, asserting that holding the 

hearing in this manner would create appealable issues, causing further 

delay. The court proceeded with the hearing over their objections. 

¶31 Mother argues she was deprived of due process because her 

right to actively participate and aid her attorney was restricted, and her 

attorney was limited in her ability to effectively cross-examine witnesses 

and to verify and introduce exhibits. We review constitutional issues de 

novo. Brenda D. v. Dep’t of Child Safety, 243 Ariz. 437, 442, ¶ 15 (2018). In a 

termination hearing, an indigent parent has a right to counsel by statute, 

A.R.S. § 8-221; by rule, Rule 38(B); and as a matter of due process, Daniel Y. 

v. Ariz. Dep’t. of Econ. Sec., 206 Ariz. 257, 260, ¶ 14 (App. 2003) (holding a 

parent’s right in juvenile matters is “not co-extensive with a criminal 

defendant’s right . . . under the Sixth Amendment” but still has a 

“constitutional dimension”). “[D]enial of the right to effective participation 

of counsel” in a dependency proceeding “constitutes a denial of due process 

of law so gross as to lack a necessary attribute of a judicial determination.” 

Ariz. State Dep’t of Pub. Welfare v. Barlow, 80 Ariz. 249, 253 (1956). If a parent 

is denied the right to counsel at a hearing, the order that results is “void.” 

Id.
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Opinion of the Court

12

¶32 Unlike previous termination cases in which courts have found

a denial of the right to counsel, Mother does not claim an absence of

counsel. See Bob H. v. Ariz. Dep’t of Econ. Sec., 225 Ariz. 279, 283, ¶ 18 (App. 

2010) (juvenile court reversibly erred in commencing termination hearing 

without mother’s counsel present); Christy A. v. Ariz. Dep’t of Econ. Sec., 217 

Ariz. 299, 307, ¶ 29 (App. 2007) (juvenile court “should have briefly 

continued the evidentiary hearing to allow mother’s counsel the 

opportunity to appear and participate”). Instead, Mother asserts that 

although she had representation, her ability to communicate with her 

attorney and thereby assist in her defense was diminished. Because 

Mother’s claims do not rise to the level of complete denial of her right to 

effective participation of counsel, the order from the hearing is not void. See

Brenda D., 243 Ariz. at 446, ¶ 30 (distinguishing complete absence of counsel 

from situation where counsel could still cross-examine and make objections

on behalf of parent who failed to appear). However, we still must analyze 

whether any diminution in Mother’s ability to communicate with her 

attorney violated Mother’s due process rights.

¶33 Courts may not terminate parental rights without affording

parents fundamentally fair procedures that satisfy due process. Kent K. v. 

Bobby M., 210 Ariz. 279, 284, ¶ 24 (2005). Generally, due process requires 

an “opportunity to be heard ‘at a meaningful time and in a meaningful 

manner.’” Dep’t of Child Safety v. Beene, 235 Ariz. 300, 305, ¶ 11 (App. 2014) 

(quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976)). Determining what 

process is due requires analysis of four factors: (1) the “nature of the 

proceedings,” (2) the “private interests at stake,” (3) the “interests of the 

state,” and (4) the “risk that the procedures used will lead to erroneous 

decisions.” Id.

¶34 As to the nature of the proceedings, termination hearings are 

to be conducted informally. Id. at 306, ¶ 12; Ariz. R. P. Juv. Ct. 6. In 

addition, these hearings generally must occur on a relatively strict timeline 

to ensure permanency for the child involved. See Trisha A. v. Dep’t of Child 

Safety, 247 Ariz. 84, 91, ¶ 30 (2019) (emphasizing importance of “timely 

stability and permanency” for the child). Here, the joint hearing had been

delayed several months and a continuance until after COVID-19 restrictions 

were lifted could have led to a longer delay. Concerning the private 

interests at stake, parents have “a fundamental liberty interest in the care, 

custody, and management of their children.” Kent K., 210 Ariz. at 284, ¶ 24. 

Children also have interests that are entitled to protection, including the 

right to “effective parental care.” Maricopa Cnty. Juv. Action No. JD-561, 131 

Ariz. 25, 28 (1981). Regarding the interests of the state, not only does the 

state have a compelling interest in protecting the welfare of children, Beene, 
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Opinion of the Court

13

235 Ariz. at 306, ¶ 13, it also bears a significant responsibility for public 

health during the COVID-19 pandemic.

¶35 Finally, as to the risk that the procedures used will lead to 

erroneous decisions, we look to the specific circumstances of the case, 

including any procedural safeguards provided. See id. at 307, ¶¶ 17–18. As 

noted in the criminal context, courts generally prefer in-person testimony 

because it “ensures the reliability of the evidence by allowing the trier of 

fact to observe the demeanor, nervousness, expressions, and other body 

language of the witness,” conveys to the witness the seriousness of the 

proceedings, and ensures the witness is not being coached or relying on 

extraneous materials. State v. Moore, 203 Ariz. 515, 517, ¶ 7 (App. 2002)

(citation and quotation omitted). However, the circumstances of the 

current global pandemic are not normal, and in-person hearings during the 

height of the pandemic have created unique challenges. For example, such 

hearings may require the use of social distancing and masks, which could 

interfere with a fact-finder’s ability to judge a witness’s demeanor and facial 

expressions. On the other hand, even when a court hears telephonic 

testimony it may rely on other means to judge a witness’s credibility, such 

as assessing the witness’s tone or inflection, and identifying inconsistencies 

between the testimony and objective documentary evidence. See Anderson 

v. City of Bessemer, 470 U.S. 564, 574–75 (1985).

¶36 In addition, in this case the juvenile court employed some 

safeguards to protect Mother’s rights. For example, throughout the 

hearing, the court periodically confirmed that the participants had not been 

disconnected, inquired whether a witness was impermissibly reading from 

a document, and accommodated technical difficulties. Indeed, as the 

second day of the hearing began on April 28, no one expressed any concerns 

to the court about continuing to conduct the hearing telephonically. 

¶37 When an issue arose about the accuracy of certain exhibits, 

the court took steps to ensure all parties were reviewing the same evidence. 

Mother’s counsel expressed concern that she had not received an exhibit 

log from DCS until shortly before the hearing and was unable to verify 

whether the exhibits she had received in discovery matched those being 

presented in court. DCS explained that Mother had received all required 

discovery, with the exception of two documents DCS had received only 

recently. The court arranged for a post-hearing period for counsel to review 

the exhibits admitted into evidence and confirm they were in fact the same 

exhibits that were previously disclosed, marked, and shown to parent’s 

counsel. And the court advised the parties it would not take the matters 
TRACY D., TARAH D. v. DCS, T.D.

Opinion of the Court

14

under advisement until after counsel had an opportunity to review and 

make new objections to the exhibits.

¶38 Moreover, although Mother contends her counsel’s ability to 

cross-examine witnesses and handle exhibits was adversely affected, she

does not explain what she or her counsel would have done differently if the 

hearing had been in person or how it would have made a difference in the 

outcome. See In re A.H., 950 N.W.2d 27, 37 (Iowa Ct. App. 2020) (denying a 

parent’s due process challenge to a telephonic hearing, in part, because the 

parent had not identified “any error or risk of error that occurred during 

the hearing as a result of the telephonic procedures other than generally 

‘questioning’ the ability of counsel to represent” her). Mother was 

represented by counsel, testified, was able to hear the presentation of

evidence, and her counsel cross-examined the State’s witnesses. Mother 

has not identified any defects or failures in the technology the court 

employed, nor has she specified any instance when she wished to speak 

with counsel privately and was denied the opportunity to do so, or how the 

manner in which the hearing proceeded impaired her counsel’s ability to 

cross-examine a witness or to offer other evidence. Based on the court’s 

findings, DCS proved the grounds for termination by clear and convincing 

evidence; Mother has not challenged any of those findings. 

¶39 The juvenile court could have adopted additional safeguards 

that might have been helpful in conducting a telephonic hearing. Giving 

the parents “frequent breaks to consult privately by telephone with 

counsel” might have alleviated some of the concerns Mother raises. See id.

Ensuring the timely exchange/disclosure of exhibits, along with 

anticipating how exhibits may be viewed during the hearing, would have 

assisted the court and parties in avoiding the exhibit issue discussed above. 

Additionally, a better alternative could be videoconferencing, assuming 

reliable technology is available without unduly burdening the participants. 

In any event, the juvenile court is in the best position to assess what 

safeguards it should implement to ensure the rights of all parties are 

protected when the court conducts any proceeding in which the 

participants cannot be present in the courtroom. 

¶40 After weighing the Eldridge factors, we conclude Mother was 

afforded adequate due process in this case, as the relatively minimal risk of 

error inherent in receiving testimony by telephone was remedied by 

safeguards and outweighed by the significant risks presented by the 

COVID-19 pandemic. The decision how to conduct a proceeding, especially 

during a pandemic, is best left to the juvenile court. A court may evaluate 

various factors when making that decision, including the fundamental right 
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Opinion of the Court

15

to parent, the child’s best interests, the length of time a case has been 

pending, the parents’ involvement (or lack thereof) in reunification 

services, the expected length of the hearing, the number of witnesses who 

will be testifying, whether the parties intend to object to exhibits, and the 

extent to which the court will be relying on testimony or instead on 

documentary evidence. See JD-561, 131 Ariz. at 27 (recognizing that 

resolving questions of due process in juvenile cases requires courts to 

“weigh and balance the competing interests” of the state, the parents, and 

the children). Indeed, establishing a bright-line rule requiring in-person 

testimony in all instances is unworkable, and in some instances might even 

deprive a parent of due process if special circumstances would not allow a 

parent to fully participate remotely, such as when a parent is incarcerated, 

has a serious illness, or lives in another state or country. We conclude that 

Mother’s right to due process was not violated.

2. Discretionary Decision

¶41 Mother also argues that even if her due process rights were 

not infringed by the manner in which the hearing proceeded, the court 

nonetheless abused its discretion by holding a telephonic hearing. We 

review a court’s ruling on a discretionary matter for an abuse of discretion. 

Adrian E. v. Ariz. Dep’t of Econ. Sec., 215 Ariz. 96, 101, ¶ 15 (App. 2007). Such 

a ruling will be reversed only if it is “manifestly unreasonable, or exercised 

on untenable grounds, or for untenable reasons.” Id. 

¶42 The juvenile court has discretion to “permit telephonic 

testimony . . . in any dependency . . . or termination of parental rights 

hearings” on the court’s own motion or by motion of a party. Ariz. R. P. 

Juv. Ct. 42. In the wake of the COVID-19 pandemic, the Arizona Supreme 

Court extended even greater discretion to superior court judges to hold 

telephonic hearings. See Ariz. Sup. Ct. Admin. Order No. 2020-47. The 

court ordered that all in-person hearings must “be avoided to the greatest 

extent possible consistent with core constitutional rights.” Id. To effect that 

ruling, judges were encouraged to “us[e] available technologies, including 

. . . teleconferencing.” Id. In a related order issued by the Maricopa County 

Superior Court, the mandate was more specific: except for limited 

exceptions, “no in-person proceeding[s]” would take place during April 

2020, though the court would “continue to hold telephonic hearings.” 

Maricopa Cnty. Sup. Ct. Amended Admin. Order No. 2020-055 (Apr. 1, 

2020). Thus, these orders granted even more discretion to judges to hold 

telephonic hearings to address public health concerns, and Mother does not 

argue the orders are unconstitutional or otherwise invalid.
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Opinion of the Court

16

¶43 In denying Mother’s motion to continue the hearing, the 

juvenile court recognized that the ongoing pandemic (with no foreseeable 

end date) required the court to consider alternatives. We cannot say the 

court abused its discretion in holding a telephonic hearing.

CONCLUSION

¶44 We affirm the juvenile court’s order granting DCS’s petitions 

for dependency and termination.