In Re Termination of Parental Rights as to B.K.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

IN RE TERMINATION OF PARENTAL RIGHTS AS TO B.K.

No. 1 CA-JV 23-0180
FILED 4-18-2024

Appeal from the Superior Court in Apache County
No. S0100SV202300001
The Honorable Garrett L. Whiting, Judge, Pro Tempore

VACATED AND REMANDED

COUNSEL

The Rigg Law Firm P.L.L.C., Pinetop
By Brett R. Rigg
Counsel for Appellant

Kortney C., St. Johns
Appellee
 IN RE TERM OF PARENTAL RIGHTS AS TO B.K.
Decision of the Court

MEMORANDUM DECISION
Presiding Judge Andrew M. Jacobs delivered the decision of the Court, in
which Judge Jennifer M. Perkins and Judge David D. Weinzweig joined.

J A C O B S, Judge:

¶1 Steve Cumings (“Father”) appeals the superior court’s
termination of his parental rights as to B.K. for abandonment under A.R.S.
§ 8-533(B)(1). When B.K. turned 16, Kortney C. (“Mother”) filed this private
termination suit. Father sought a continuance of the trial date for two or
more weeks – past the end of his incarceration – so he could appear and
participate in person. The court denied the continuance. At trial, Father
argued Mother “persistently and substantially restricted” his access to B.K.
under Calvin B. v. Brittany B., 232 Ariz. 292, 293-94 ¶ 1 (App. 2013), while
Mother contended she did not. The court found abandonment. Father
appeals, arguing the denial of the brief continuance was an abuse of
discretion, and that Calvin B. makes the finding of abandonment error.
Mother filed no responsive brief, conceding error as to the procedural issue
of the continuance. We reverse on the first issue and order a new trial.

FACTS AND PROCEDURAL HISTORY

¶2 Father and Mother are B.K.’s biological parents. They lived
with Mother’s parents in St. Johns, Arizona while she was carrying B.K., but
Father moved out at some point during the pregnancy. Mother and Father
ended their relationship soon after B.K.’s birth in 2007. Mother took B.K. to
visit Father during her first year, but stopped thereafter because Mother did
not want B.K. visiting Father in jail.

A. Father Was Not in Contact With B.K., Who Eventually
Developed an Interest in Adoption By Her Stepfather.

¶3 In 2008, Mother met and married Justin C. (“Stepfather”) and
thereafter moved to Louisiana. Mother did not notify Father she and B.K.
had moved to Louisiana and did not send Father B.K.’s new address. From
2009 to 2012, Mother did not call Father and Father had no phone number
to contact B.K. Mother would later testify that Father could search for her
phone numbers through an online background check. While B.K. was in
Louisiana, Father mailed four letters addressed to her at her maternal

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grandparents’ post office box, which were forwarded to B.K. in Louisiana.
Father did not know if the letters reached B.K.

¶4 In 2015, B.K. moved back to Arizona. Mother did not inform
Father that she and B.K. had moved back to Arizona, of a new P.O. box she
had, or of her or B.K.’s cell phone number. Mother intended that
“[c]onnection [between Father and B.K.] was not going to be made on my
efforts.” Father called Mother’s parents (B.K.’s grandparents) at the only
number he had access to, without success.

¶5 B.K. expressed interest in Stepfather adopting her. Mother
did not initially pursue the adoption, but began the process in 2019 when
B.K. asked again. Mother’s lawyer contacted Father in jail, asking him to
voluntarily relinquish his parental rights. Father refused. In 2020, Father
wrote Mother a letter explaining he wanted to be in B.K.’s life and would
do what it took to maintain a relationship. Mother did not respond. Mother
stopped pursuing the adoption for three years but resumed it in 2023, when
B.K. turned sixteen.

B. Mother Sought to Terminate Father’s Parental Rights, and
the Court Denied Father’s Motion to Continue the Hearing
Two or More Weeks, to Fall After His Release from Prison.

¶6 In April 2023, Mother petitioned to terminate Father’s
parental rights. The court found Father indigent and appointed him
counsel. At the pre-trial conference in July 2023, the court granted Father’s
initial counsel’s request to withdraw and appointed new counsel. At this
conference, B.K. requested the proceeding move forward without her own
counsel attending. The court then notified Father that failure to attend any
proceeding could result in waiving his legal rights.

¶7 Father’s new counsel moved to continue the hearing because
he had only recently received Mother’s disclosure. The court found good
cause and granted the request to continue and moved the termination
hearing from August 9, 2023, to August 29, 2023. Father filed a second
motion to continue to postpone the hearing until after September 12, 2023,
because he was going to be released from jail that day and wanted to appear
at the termination hearing in person. The superior court denied Father’s
second motion to continue.

C. The Superior Court Terminated Father’s Parental Rights.

¶8 At trial, Mother testified Father only sent four letters to B.K.
at her parents’ post office box while they were in Louisiana and initiated no

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communication with B.K. in the three years before the termination. Father
testified he intended to start a relationship with B.K. upon being released
from jail but had been in and out of jail for most of B.K.’s life. Father was
out of state prison from May 2010 to December 2013 and January 2016 to
August 2018. Father was in county jail for unstated intervals within these
two periods as well, leaving unclear how much time Father was in custody.
Father testified he sent more letters than Mother had recounted, likely
around a dozen. From 2019 through the hearing, Father claimed to have
sent five more letters in addition to the four Mother acknowledged. Father
testified Mother prevented him from maintaining a relationship with B.K.
by withholding her contact information and whereabouts. Father did not
know if B.K. ever received any communication from him. Father did not
testify about any affirmative steps he took between 2008 and 2023 to locate
B.K. or Mother.

¶9 At the hearing, Father repeatedly expressed frustration
because he could not hear the testimony. At several points Father
expressed that the connection with the court kept cutting in and out but the
court continued without the prior testimony being repeated, so Father did
not hear portions of the testimony. As these difficulties continued, the court
generally asked witnesses to speak up prospectively. The court had
testimony repeated once.

¶10 The court granted Mother’s petition, finding she had proved
abandonment by clear and convincing evidence and that termination was
in B.K.’s best interests by the preponderance of the evidence. Father timely
appealed. We have jurisdiction. Ariz. Const. art. 6, §§ 9, 15; A.R.S. §§ 12-
2101(A)(1), -120.21(A)(1), and 8-235(A).

DISCUSSION

The Superior Court Abused Its Discretion by Denying Father’s
Motion to Continue the Trial For Two Weeks.

¶11 We review appeals from denials of motions to continue for
abuse of discretion, which here means Father must demonstrate he suffered
prejudice sufficient to establish reversible error. Roberto F. v. Ariz. Dep’t of
Econ. Sec., 232 Ariz. 45, 50 ¶ 18 (App. 2013).

A. Mother’s Omission to File an Answering Brief Operates as
a Confession of Error as to the Procedural Issue of Granting
a Two-Week Extension of Time For the Termination
Hearing.

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¶12 Mother did not file an answering brief. We treat her failure to
do so as confession of error in this procedural issue. Our supreme court has
held in cases with debatable issues, “a failure to file an answering brief is
equivalent to a confession of error by appellee.” Navarro v. State, 32 Ariz.
119, 120 (1927); see also Tiller v. Tiller, 98 Ariz. 156, 157 (1965) (reiterating that
our Supreme Court will “assume that failure to file an answering brief is a
confession of reversible error on the part of appellee.”). At a minimum, it
is fairly debatable whether the superior court abused its discretion in
refusing to continue a hearing for two weeks when it would permit one
parent to attend a hearing at which his constitutional right to parent was at
issue. As such, failing to file an answering brief would ordinarily be a
confession of error.

¶13 We generally avoid treating the lack of a response as a
confession of error to avoid having waivers affect the best interest of
children. Hoffman v. Hoffman, 4 Ariz. App. 83, 85 (1966) (stating that an
application of implied confession of error should not be mandatory in cases
involving minor children). Hoffman nonetheless leaves that determination
to our discretion. See Pima County Juvenile Action, No. J-65812-1, 144 Ariz.
428, 429 (App. 1985). And our supreme court has cited Hoffman
approvingly for the proposition that we should not apply procedural rules
to effect defaults of parental rights where that could have an adverse effect
on children. Hays v. Gama, 205 Ariz. 99, 102-03 ¶ 18 (2003).

¶14 Given that prologue, there are two reasons we exercise our
discretion to treat the failure to file an answering brief as a waiver. First,
the issue here is purely procedural – whether to allow Father to participate
in trial in person by continuing it for two or more weeks, or not to do so.
The superior court’s order denying Father’s motion to continue reasoned it
was “untimely and not in the interests of justice” but did not make the
determination that the delay impacted B.K.’s best interests. Moreover, the
record does not establish Father’s motion for continuance affected B.K.’s
best interests. Neither Mother nor the court illustrated how a two-week
continuance impacted B.K.’s best interests, and Mother had previously
moved toward seeking termination, but then waited another three years
before proceeding in this matter. While Gama reminds us not to let
procedural defaults interfere with a court’s consideration of best interests,
our procedural ruling here has no such effect. Mother’s choice not to file a
brief does not affect the merits issues concerning Calvin B., which we do not
reach, and does not impact the court’s evaluation of the merits of Mother’s
termination petition on remand.

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¶15 Second, by refusing to wait a brief period necessary to allow
Father’s full participation in his severance trial, the court failed to give
proper weight to the fundamental nature of his constitutional right to
parent and the centrality of oral testimony to this hearing. Tracy D. v. Dep’t
of Child Safety, 252 Ariz. 425, 435 ¶ 40 (App. 2021) (explaining that in
considering how to hold hearing during pandemic, court should consider,
among other factors, “the fundamental right to parent . . . and the extent to
which the court will be relying on testimony or instead on documentary
evidence”).

B. Father Was Prejudiced By the Remote Participation.

¶16 Father’s remote participation prejudiced him, providing a
second reason to reverse. All other parties and attorneys attended this
termination hearing in person. But not Father. Remote participation can be
prejudicial in termination hearings. Generally, in-person testimony is
preferred 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.” Tracy D., 252 Ariz. at 434 ¶ 35. Remote
testimony is less effective and reliable, and can impact assessments of
credibility. This is especially true here, where the matter was decided based
on oral testimony. Moreover, being consigned to remote participation
prevents a litigant like Father from facing Mother, conferring in real-time
with his counsel, and meaningfully confronting or cross-examining her
adverse testimony. State v. Moore, 203 Ariz. 515, 518 ¶ 11 (App. 2002)
(“Telephonic testimony seriously impinges on a defendant’s ability to
‘confront and cross-examine his accusers face-to-face’” and with telephonic
testimony one cannot “‘observe the demeanor, nervousness, expressions,
and other body language of the witness.’”).

¶17 Technological difficulties, as Father experienced here, put
him at a disadvantage the record shows was not cured. Compare Josiah E. v.
Dep’t of Child Safety, No. 1 CA-JV 20-0400, 2022 WL 401535, *5 ¶ 25 (Ariz.
App. Feb. 10, 2022) (mem. decision) (finding parent not prejudiced when
court vacated and rescheduled day of proceedings in termination hearing
given technological issues “that could not be readily remedied”). As noted
above, Father experienced difficulty hearing testimony throughout the
proceeding, and while the court asked witnesses to speak louder, it almost
never had testimony repeated. As other jurisdictions have likewise
recognized, technological limitations in termination proceedings can
threaten basic fairness. See In re Baby K., 722 A.2d 470, 474 (N.H. 1998)
(holding parent was denied “a fair opportunity to participate” in a
termination proceeding after they experienced repeated technical

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difficulties); Orville v. Div. of Fam. Servs., 759 A.2d 595 (Del. 2000) (holding
parent was denied a fair opportunity to participate in a termination
proceeding where prison disconnected their call, holding court “should
have continued the proceeding” until parent could join entire hearing).
When granting Father two more weeks would have avoided any issue, and
denying them resulted in a trial in which he was functionally watching
from afar with an unreliable feed and impaired participation, there was
both an abuse of discretion and prejudice.

CONCLUSION

¶18 For these reasons, we vacate the order terminating Father’s
parental rights, and remand for further proceedings consistent with this
decision. Because we reverse and remand for a new trial, we do not reach
Father’s second issue regarding Calvin B.

AMY M. WOOD • Clerk of the Court
FILED: AA

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