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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                             SHILOH Z., Appellant,

                                         v.

         DEPARTMENT OF CHILD SAFETY, D.H., D.H., Appellee.

                              No. 1 CA-JV 16-0055
                               FILED 8-4-2016


            Appeal from the Superior Court in Maricopa County
                              No. JD527602
                The Honorable Karen L. O’Connor, Judge

                                   AFFIRMED


                                    COUNSEL

Denise Lynn Carroll, Esq., Scottsdale
By Denise Lynn Carroll
Counsel for Appellant

Arizona Attorney General’s Office, Mesa
By Amanda L. Adams
Counsel for Appellee DCS
                         SHILOH Z. v. DCS, et al.
                          Decision of the Court



                      MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Samuel A. Thumma
joined.


J O N E S, Judge:

¶1             Shiloh Z. (Father) appeals the termination of his parental
rights to two sons, D.H. and D.H. (the Children). For the following reasons,
we affirm.

                FACTS AND PROCEDURAL HISTORY

¶2            In April 2014, the Department of Child Safety (DCS) took
custody of the Children and filed a dependency petition alleging abuse and
neglect by both parents.1 At the preliminary protective hearing, the juvenile
court provided Father with the Form 1. Notice to Parent in Dependency
Action, advising of the consequences of failing to attend certain hearings
without good cause, and also read its contents into the record. Father
indicated he understood the contents and also signed and returned the
form. The Children were found dependent as to Father in November 2014,
and the court adopted a case plan of family reunification and an alternate,
concurrent case plan of severance and adoption.

¶3            At a September 2015 report and review hearing, the juvenile
court changed the case plan to severance and adoption, directed DCS to file
a motion to terminate Father’s parental rights, and scheduled an initial
severance hearing for November 16, 2015. Although a Form 3. Notice to
Parent in Termination Action was read to the parents who appeared at the
report and review hearing, none was provided to Father because he did not
attend, and his counsel was excused from attending to celebrate a religious
holiday. A copy of the minute entry memorializing these orders was
mailed to Father’s last known address but was returned as undeliverable.




1     The Children’s mother is not a party to this appeal.




                                     2
                         SHILOH Z. v. DCS, et al.
                          Decision of the Court

¶4             DCS then filed a motion to terminate Father’s parental rights,
alleging severance was warranted on the grounds of abandonment and the
length of time the Children had been in an out-of-home placement. See
Ariz. Rev. Stat. (A.R.S.) §§ 8-533(B)(1) and (8)(c).2 At the same time, DCS
filed with the court, and mailed to both Father and his counsel, a notice of
the initial severance hearing that stated, in bold lettering:

       You have a right to appear as a party in this proceeding. You
       are advised that your failure to personally appear in court at
       the initial hearing, pretrial conference, status conference or
       termination adjudication, without good cause shown, may
       result in a finding that you have waived your legal rights and
       have admitted the allegations in the Motion. In addition, if
       you fail to appear without good cause, the hearing may go
       forward in your absence and may result in termination of
       your parental rights based upon the record and the evidence
       presented to the court.

Father’s counsel mailed a copy of the motion to Father and received an
email in response from Father the day before the hearing, acknowledging
he had received the motion.

¶5            Although Father did not attend the November 2015 initial
severance hearing, his counsel accepted service of the petition on his behalf.
At that hearing, the court noted Father had failed to appear and there was
no good cause shown for his failure to appear. A pretrial conference was
scheduled for February 2016.

¶6             Father appeared telephonically at the pretrial conference.
Regarding Father’s failure to appear in November, his counsel stated “there
was a lack of communication” because “[Father] did not remain in touch
with the former caseworker, as he probably should have,” and Father
added he “was incredibly sick, and . . . also had to work that day.” The
juvenile court found Father did not show good cause for his failure to
appear at the November 2015 hearing and concluded he waived his right to
contest the allegations of the petition. The court then proceeded to consider
the merits of the motion to terminate Father’s parental rights.




2     Absent material changes from the relevant date, we cite a statute’s
current version.


                                      3
                           SHILOH Z. v. DCS, et al.
                            Decision of the Court

¶7            After receiving exhibits and testimony from the DCS case
manager, the juvenile court found DCS had proven both statutory grounds
for severance by clear and convincing evidence and that severance was in
the Children’s best interests by a preponderance of the evidence.
Accordingly, the court entered an order terminating Father’s parental rights
to the Children. Father timely appealed. We have jurisdiction pursuant to
A.R.S. §§ 8-235(A), 12-120.21(A)(1), and -2101(A)(1) and Arizona Rule of
Procedure for the Juvenile Court 103(A).

                                DISCUSSION

¶8             Although the right to the custody and control of one’s
children is fundamental, it is not absolute. See Michael J. v. Ariz. Dep’t of
Econ. Sec., 196 Ariz. 246, 248, ¶¶ 11-12 (2000). If a parent is properly served
with a motion for termination, has notice of a hearing, and is advised of
consequences for failing to appear, but the parent does not appear and no
good cause is shown for that failure, the juvenile court may find the parent
waived his rights and is deemed to have admitted the statutory bases for
termination as alleged in the motion. A.R.S. § 8-863(C); see also Ariz. R.P.
Juv. Ct. 65(C)(6)(c); Christy A. v. Ariz. Dep’t of Econ. Sec., 217 Ariz. 299, 304,
¶ 13 (App. 2007).

¶9             Father argues the juvenile court erred in concluding he lacked
good cause for his failure to appear and denied him due process when it
proceeded “by default.” Because a parent may waive his right to
procedural due process if he fails to appear for certain hearings without
good cause, Manuel M. v. Ariz. Dep’t of Econ. Sec., 218 Ariz. 205, 211, ¶ 19
(App. 2008) (citing Ariz. Dep’t of Econ. Sec. v. Redlon, 215 Ariz. 13, 17, ¶ 9
(App. 2007)), the resolution of both issues turns on the juvenile court’s
determination that Father did not show good cause for his failure to
appear.3 We review the court’s finding that a parent lacked good cause for
his failure to appear for an abuse of discretion. Adrian E. v. Ariz. Dep’t of

3      Father also argues the juvenile court erred in denying him the
opportunity to participate in and testify at the termination hearing. This
argument is not supported by the record. Father’s counsel actively
participated in the proceedings, including through cross-examination of
DCS’s witness. Neither Father nor his counsel indicated to the court that
Father wished to testify, and there is no record of the court having
prevented Father from doing so. There is likewise no support for Father’s
suggestion that the court proceeded “by default,” rather than through
adjudication on the merits after considering the evidence.



                                        4
                           SHILOH Z. v. DCS, et al.
                            Decision of the Court

Econ. Sec., 215 Ariz. 96, 101, ¶ 15 (App. 2007). We will reverse only if “the
juvenile court’s exercise of that discretion was manifestly unreasonable, or
exercised on untenable grounds, or for untenable reasons.” Id. (quoting
Lashonda M. v. Ariz. Dep’t of Econ. Sec., 210 Ariz. 77, 83, ¶ 19 (App. 2005)).

¶10            Father does not argue he did not know of the date of the initial
severance hearing, and the record reflects Father was on notice that his
parental rights could be terminated if he failed to attend proceedings
without good cause. Despite having been so admonished, Father failed to
maintain communication with either his counsel or DCS. See Mara M. v.
Ariz. Dep’t of Econ. Sec., 201 Ariz. 503, 507-08, ¶¶ 25-28 (App. 2002)
(concluding service on counsel was reasonably calculated to apprise a
parent of dependency proceedings where parent had not been in contact
with counsel or DCS for several months). He did not provide any evidence
to corroborate either of his alternate explanations that he was sick and
scheduled to work. We defer to the juvenile court’s evaluation of Father’s
credibility in this regard. See Pima Cnty. Severance Action No. S-1607, 147
Ariz. 237, 239 (1985) (“[W]e defer to the judgment of the trial court which
had the opportunity to assess the credibility, attitude and condition of the
parties at trial.”) (citing Pima Cnty. Juv. Action No. S-624, 126 Ariz. 488, 490
(App. 1980)). Under these circumstances, Father has shown no abuse of
discretion.4 See, e.g., Bob H. v. Ariz. Dep’t of Econ. Sec., 225 Ariz. 279, 281-82,
¶¶ 8-9, 11-13 (App. 2010) (affirming both findings of lack of good cause
where father reported he was misinformed regarding the time of the
hearing and had just finished driving 1100 miles, and where mother argued
she had to arrange her own transportation and was only thirty minutes
late); Adrian E., 215 Ariz. at 101-02, ¶ 19 (same where parent testified he lost
the notice and could not recall the dates set for trial).

                                CONCLUSION

¶11         Father does not challenge the juvenile court’s findings in
support of severance, and, because we find no error in the court’s



4       Although the juvenile court did not make express findings that
Father received notice of the initial severance hearing, was served with the
petition for termination, or was previously warned of the consequences of
failing to appear, Father has never argued otherwise, and such findings are
supported by the record. See Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207
Ariz. 43, 50, ¶ 17 (App. 2004) (“[W]e will presume that the juvenile court
made every finding necessary to support the severance order if reasonable
evidence supports the order.”) (citing S-1607, 147 Ariz. at 238).


                                        5
                      SHILOH Z. v. DCS, et al.
                       Decision of the Court

determination that he failed to appear without good cause, the order
terminating Father’s parental rights to the Children is affirmed.




                               :AA




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