Bob H. v. Arizona Dept. of Economic SEC.

THOMPSON, Judge, concurring in part, dissenting in part. ¶ 20 I agree with the majority’s analysis and result as to parts I — III of this opinion. I do not agree with part IV as to the effect of Mother’s counsel’s late arrival. I conclude that Mother was not denied due process and would affirm. *284 ¶ 21 After Mother’s counsel arrived, he was permitted to cross-examine the ADES witness, review the exhibits and make objections. Mother’s counsel did not object to this procedure, 7 whereby, although the hearing had already commenced before he arrived, he was allowed to catch up. Mother’s failure to object in the trial court waives the issue on appeal. State v. Bolton, 182 Ariz. 290, 297 , 896 P.2d 830, 837 (1995). On appeal, Mother provides no authority supporting the claim sustained by the majority that this procedure denied her due process. This also waives the argument. Id. at 298 , 896 P.2d at 838 . Mother is not entitled to fundamental error review. Daniel Y., 206 Ariz. at 260, ¶ 14, 77 P.3d at 58 (citing Denise H. v. Ariz. Dep’t of Econ. Sec., 193 Ariz. 257, 258, ¶¶5-7 , 972 P.2d 241, 242 (App.1998)). Even if fundamental error review were available to Mother, she would have to allege and demonstrate prejudice. State v. Henderson, 210 Ariz. 561, 568-69, ¶ 26 , 115 P.3d 601, 608-09 (2005). Mother has not in any way suggested how counsel’s absence from part of the hearing harmed her. She does not allege that the witness testimony or exhibits were otherwise than anticipated by her counsel, or that his cross-examination or the making of objections was hindered. In my view, the majority errs in considering the issue of counsel’s late arrival. ¶ 22 The eases cited by the majority do not support reversal here. This is not a case like Daniel Y, where the trial court refused to appoint counsel for a parent. Nor is it like Barlow or Christy A, in which the trial courts excluded parents’ lawyers from participation. This court waited and waited for someone to show up; the parents were 40 minutes late and Mother’s lawyer 60 minutes late. Mother’s counsel then fully participated, and there is here no suggestion that the result is any different than it would have been if everyone had been on time. ¶23 Trial courts have to manage their dockets and we defer considerably to their good judgment in doing so. Findlay v. Lewis, 172 Ariz. 343, 346 , 837 P.2d 145, 148 (1992). Other people have rights too, including parties in other cases whose access to courts is delayed or impeded by tardiness in congested calendars. More pertinently, the child in this case was represented by her guardian ad litem, she was present during these proceedings (and was on time), she was happy with her adoptive placement and did not wish visitation with Mother. I would give due weight to these considerations. . The lawyer’s comment that his tardy arrival should not be "held against" mother did not reference the court’s decision to proceed while he was en route. Obviously, the court did not "hold” anything against Mother other than the evidence that supported severance.