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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

K.C., Appellant,

v.

DEPARMENT OF CHILD SAFETY, DEANDRA G., Appellees.

No. 1 CA-JV 18-0270 

Appeal from the Superior Court in Maricopa County

No. JD 35934

The Honorable Pamela Hearn Svoboda, Judge

AFFIRMED

COUNSEL

Robert D. Rosanelli, Phoenix

Counsel for Appellant K.C.

Denise L. Carroll, Scottsdale

Counsel for Appellee Mother

Arizona Attorney General’s Office, Phoenix

By Sandra L. Nahigian

Counsel for Appellee Arizona Department of Child Safety

FILED 1-17-2019
K.C. v. DCS, DEANDRA G.

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Jennifer B. Campbell delivered the decision of the Court, 

in which Judge Paul J. McMurdie and Judge Kent E. Cattani joined.

C A M P B E L L, Judge:

¶1 K.C. appeals from the superior court’s orders finding him 

dependent with regard to Deandra G. (“Mother”) and setting a case plan of

family reunification. He argues the superior court erred during the initial 

dependency hearing by denying his right to counsel, denying his dueprocess rights to notice and an opportunity to be heard, and by not ordering

his attendance at the hearing. Because the superior court conducted the 

initial dependency proceeding in accordance with the relevant statutes and 

the Rules of Procedure for the Juvenile Court and did not abuse its 

discretion in finding K.C. dependent, we affirm.

BACKGROUND

¶2 K.C. was born in April 2002. In June 2018, a guardian ad litem 

filed a dependency petition alleging that K.C. had been referred to juvenile 

delinquency court multiple times and that Mother was unable to control 

him, rendering her unable to provide adequate parenting. The petition 

noted the alleged instances of K.C. engaging in assaults on Valley Metro 

passengers, truancy from school, marijuana use, aggravated robbery, 

criminal trespass and damage, and other violations of his juvenile 

probation restrictions. 

¶3 The superior court held an initial dependency hearing

regarding Mother, but she did not appear. Finding that Mother had failed 

to appear without good cause, thereby waiving her rights to contest the 

allegations in the dependency petition, the court found K.C. dependent. 

K.C. was also not present at the hearing. The court appointed an attorney 

to represent K.C. and ordered that he be transported to the next hearing if 

he was in detention.

¶4 In July, the superior court held a dependency disposition 

hearing. K.C.’s appointed attorney was present, but K.C. was not and 

appeared telephonically from a taxi cab partway through the hearing.

K.C.’s attorney objected to proceeding with disposition and moved to 
K.C. v. DCS, DEANDRA G.

Decision of the Court

3

defer—arguing that K.C. was “a bit bothered by not being present” for the 

initial hearing, that DCS had changed its recommendation from remainwith-the-family to family reunification, and that the court needed more 

information regarding Mother’s failure to appear, K.C.’s psychological and 

educational needs, and restoration services in order to proceed with an 

appropriate disposition—but the court denied the request. Mother agreed 

to participate in parenting and family counseling services, and the court set 

the case plan as family reunification.

DISCUSSION

¶5 We review an order adjudicating a child dependent for an 

abuse of discretion. Shella H. v. DCS, 239 Ariz. 47, 50, ¶ 13 (App. 2016). The 

superior court abuses its discretion when it commits an error of law, when 

it reaches a conclusion without considering evidence, or when the record 

does not provide substantial evidence supporting its findings. Schickner v. 

Schickner, 237 Ariz. 194, 197, ¶ 13 (App. 2015). The bests interests of the child 

are paramount in dependency proceedings, and we afford broad discretion 

to the superior court. Joshua J. v. Ariz. Dep’t of Econ. Sec., 230 Ariz. 417, 424, 

¶ 29 (App. 2012).

¶6 K.C. first argues the superior court denied him his right to 

counsel at the initial dependency hearing. K.C. did not raise this objection 

with the superior court, and we therefore review only for fundamental 

error. See Louis C. v. DCS, 237 Ariz. 484, 489, ¶ 20 (App. 2015) (assuming 

without deciding that fundamental error review is available to a parent 

challenging a dependency adjudication). To establish fundamental error, 

the complainant must first show that trial error exists, and then show that 

the error went to the foundation of the case, took from the defendant a right 

essential to his defense, or was so egregious that he could not possibly have 

received a fair trial. State v. Escalante, 245 Ariz. 135, 142, ¶ 21 (2018); Monica 

C. v. Ariz. Dept. of Econ. Sec., 211 Ariz. 89, 94, ¶ 24 (App. 2005). K.C. has not 

established that the superior court erred.

¶7 A juvenile has the right to be represented by counsel “[i]n 

all proceedings involving offenses, dependency or termination of parental 

rights that are conducted pursuant to this title and that may result in 

detention.” A.R.S. § 8-221(A) (emphasis added). K.C. was not at risk of 

detention as a direct consequence of being found a dependent child, and 

therefore had no absolute right to his own attorney during the course of the 

dependency proceedings. See A.R.S. § 8-201(16) (“‘Detention’ means the 

temporary confinement of a juvenile who requires secure care in a 

physically restricting facility that is completely surrounded by a locked and 
K.C. v. DCS, DEANDRA G.

Decision of the Court

4

physically secure barrier with restricted ingress and egress for the 

protection of the juvenile or the community pending court disposition or as 

a condition of probation.”); see also Yavapai Cty. Juv. Action No. J-8545, 140 

Ariz. 10, 16 (1984) (“[D]ue process does not require independent counsel for 

children in each and every case in which they are involved. . . . [T]he trial 

court shall appoint independent counsel, upon request of an interested 

party or sua sponte, where such counsel would contribute to promoting the 

child’s best interest by serving an identifiable purpose such as advocating 

the child’s position in the dispute or ensuring that the record be as complete 

and accurate as possible . . . .”).

¶8 Furthermore, pursuant to Rule 52(A) of the Rules of 

Procedure for the Juvenile Court, the purpose of an initial dependency 

hearing is for the court to determine “whether service has been completed 

and whether the parent . . . admits, denies or does not contest the allegations 

contained in the dependency petition.” During an initial dependency 

hearing, the court is required to appoint counsel to persons entitled to 

counsel pursuant to Rule 38(B). Ariz. R.P. Juv. Ct. 52(C)(2). Here, the court 

not only appointed counsel for Mother during the initial dependency 

hearing, but also appointed K.C. counsel—the same attorney already 

representing him in his delinquency matters. In appointing K.C. counsel at 

the initial dependency hearing, the court committed no error.

¶9 K.C. next argues the superior court deprived him of due 

process by failing to afford him notice of the initial dependency hearing and 

an opportunity to be heard. Again, K.C. did not raise this issue with the 

superior court, and we therefore review only for fundamental error. Even 

if the superior court erred by not affording K.C. notice and an opportunity 

to be heard at that hearing, any possible error was not fundamental. 

¶10 When a parent fails to appear at the initial hearing without 

good cause shown, the court may adjudicate the child dependent if the 

petitioner has established grounds upon which to adjudicate the child 

dependent, based on the record and evidence presented. Ariz. R.P. Juv. Ct. 

52(C)(6)(c). Mother did not appear at the initial dependency hearing, and

the superior court found she had failed to appear without good cause and 

thereby had waived her legal rights to contest the allegations in the 

dependency petition. 

¶11 When, as here, a parent has effectively admitted to the 

allegations by waiving her rights to contest them, no adjudication is 

required. No discernible purpose would be served by requiring the child to 

attend the initial hearing and to have an opportunity to speak with the 
K.C. v. DCS, DEANDRA G.

Decision of the Court

5

court. K.C offers no reason why any such error went to the foundation of 

his case, took from him a right essential to his defense, or was so egregious 

that he could not possibly have received a fair trial, Escalante, 245 Ariz. at 

142, ¶ 21, and we discern none.

¶12 Lastly, K.C. argues the court did not consider his best interests 

by failing to order his attendance at the initial dependency hearing. 

Assuming K.C. adequately raised this issue to the superior court during the 

disposition hearing, supra ¶ 4, we find no abuse of discretion.

¶13 “[T]he Rules of Procedure for the Juvenile Court . . . recognize 

[that] a child’s right to attend and testify at a hearing is not absolute. 

Although Rule 41(B) authorizes a child in foster care to attend ‘the child’s 

court hearing and speak to the judge,’ Rule 36 directs that all juvenile rules 

of procedure ‘should be interpreted in a manner designed to protect the 

best interests of the child, giving paramount consideration to the health and 

safety of the child.’” K.D. v. Hoffman, 238 Ariz. 278, 280, ¶ 7 (App. 2015). 

¶14 K.C. fails to indicate how his attendance at the hearing could 

have altered the outcome or why his best interests would have been better 

served. K.C.’s guardian ad litem—a court appointee tasked with protecting 

his interests pursuant to Rule 40(A)—was present at the initial dependency 

hearing, and K.C. does not articulate how the guardian ad litem failed to 

act. Accordingly, he has demonstrated no abuse of discretion.

CONCLUSION

¶15 For the foregoing reasons, we affirm.