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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                            MICHAEL T., Appellant,

                                         v.

             DEPARTMENT OF CHILD SAFETY, J.E., Appellees.

                              No. 1 CA-JV 16-0381
                                FILED 6-22-2017


            Appeal from the Superior Court in Maricopa County
                              No. JD529119
                 The Honorable Timothy J. Ryan, Judge

                                   AFFIRMED


                                    COUNSEL

The Stavris Law Firm, PLLC, Scottsdale
By Christopher Stavris
Counsel for Appellant

Arizona Attorney General’s Office, Mesa
By Ashlee N. Hoffmann
Counsel for Appellee Department of Child Safety
                          MICHAEL T. v. DCS, J.E.
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Peter B. Swann joined.


C R U Z, Judge:

¶1            Michael T. (“Father”) appeals the superior court’s order
severing his parental rights to J.E. Father contends the superior court erred
in terminating his parental rights to J.E. due to Father’s failure to appear at
the severance hearing. For the following reasons, we affirm.

               FACTUAL AND PROCEDURAL HISTORY

¶2             J.E. was born to Father and Echo E. (“Mother”) on August 1,
2015, weighing three pounds and testing positive for amphetamine, a
tricyclic antidepressant, and tetrahydrocannabinol. At the time of J.E.’s
birth, Father resided in New Hampshire, where he and Mother lived before
Mother relocated to Arizona to escape a domestically violent relationship
with Father. On August 18, 2015, the Arizona Department of Child Safety
(“DCS”) filed a dependency petition against Mother.1 In its dependency
petition DCS alleged, and the superior court found, that J.E. was dependent
as to Mother because of mental-health issues, domestic violence, neglect,
and substance abuse.2 J.E. was placed in a licensed foster home and
currently receives services from both the Arizona Early Intervention
Program and the Division of Developmental Disabilities.

¶3             Upon learning Father’s identity, DCS amended the
dependency petition and alleged that J.E. was also dependent as to Father
because Father neglected him and failed to provide J.E. with the basic
necessities of life. The petition was served on Father in New Hampshire
using certified mail. The dependency petition advised Father that “[f]ailure
to appear without good cause may result in a finding that the parent . . . has
waived his/her legal rights and admitted the allegations in the dependency


1      At the time, Father’s identity was unknown to DCS. Paternity
testing was completed in December 2015, and the court found Father’s
paternity as to J.E. on March 24, 2016.

2      Mother is not a party to this appeal.


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                          MICHAEL T. v. DCS, J.E.
                           Decision of the Court

petition,” and that “hearings may go forward in his/her absence and may
result in an adjudication of dependency, permanent guardianship or
termination of parental rights based upon the record and evidence
presented . . . .” (Emphasis added.)

¶4           Father denied the allegations. During the course of the
proceedings, the court rescheduled two mediations because the DCS
representative was not present. At the March 8, 2016 hearing, which Father
attended telephonically, the court scheduled the matter for pretrial
conference on April 15, 2016.

¶5           Father failed to appear at the April 15, 2016 pretrial
conference, and the superior court proceeded in his absence, adjudicating
J.E. dependent as to Father. The March 8 hearing was the last hearing
Father attended. In its minute entry, the court warned Father that he could
“expect a change of case plan to severance and adoption if things [did] not
improve.” Father’s case plan required him to achieve stable income and
housing, demonstrate sustained sobriety, and complete parenting classes.

¶6            After Father’s paternity was established, DCS submitted
documentation under the Interstate Compact on the Placement of Children
(“ICPC”) for J.E. to be placed with Father. However, Father refused to
cooperate with ICPC, and the ICPC process was never completed.
Similarly, Father failed to submit to urinalysis tests and maintain consistent
contact with DCS. Additionally, Father’s parents stated he was still using
drugs and they felt J.E. would not be safe in their home.

¶7            Father failed to appear telephonically at the July 2016 report
and review hearing. Given Father’s noncompliance, in July 2016, the
superior court changed the case plan to severance and adoption. DCS
moved to terminate Father’s parental rights based on J.E.’s nine-month out-
of-home placement, DCS’s diligent efforts to provide appropriate
reunification services, and Father’s substantial neglect or willful refusal to
remedy the circumstances that caused J.E. to be in out-of-home placement.
Ariz. Rev. Stat. (“A.R.S.”) § 8-533(B)(8)(a) (Supp. 2016).3 DCS further
alleged that termination of Father’s rights was in J.E.’s best interest. A.R.S.
§ 8-533(B).

¶8           Father failed to appear at the hearing on the motion for
termination of parent-child relationship held August 17, 2016. Father’s


3      We cite the current version of statutes unless revisions material to
this decision have since occurred.


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                          MICHAEL T. v. DCS, J.E.
                           Decision of the Court

counsel avowed that service of DCS’s motion to terminate Father’s parental
rights was complete and that Father was sent a copy of the motion and
notice of the hearing date. Despite notices from counsel of all the court
hearings and motions in the case, Father failed to maintain required contact
with the court or his counsel. The court proceeded with the hearing in
Father’s absence, and made the following findings under A.R.S. § 8-
533(B)(8)(a): J.E. had been in an out-of-home placement for longer than nine
months; DCS made diligent efforts to provide appropriate reunification
services; and Father substantially neglected to remedy the circumstances
that caused J.E. to be in an out-of-home placement. At the end of the
hearing, the court found DCS proved by a preponderance of the evidence
that it would be in J.E.’s best interest for the termination of the parent-child
relationship to occur; termination of the relationship would further the plan
of an adoptive placement which meets all J.E.’s needs; J.E. was considered
adoptable; and another adoptive placement could be located should the
current placement be unable to adopt.

¶9            Father subsequently filed a motion to set aside the superior
court’s severance order, claiming he failed to appear at the severance
hearing on August 17 because he “was in a residential treatment center and
had no access to his phone to contact” the court or his attorney. In denying
Father’s motion, the court found “[F]ather’s multiple failures to appear
substantially predated his failure to appear” at the August 17 severance
hearing, and that “[F]ather had an opportunity prior to his admission into
an inpatient facility to communicate with his counsel prior to admission but
he chose not to do so.”

¶10          Father timely appealed. We have jurisdiction pursuant to
A.R.S. §§ 8-235(A), 12-120.21(A)(1), 12-2101(A)(1), and Arizona Rules of
Procedure for the Juvenile Court (“Rule”) 103(A).

                               DISCUSSION

¶11           We review the superior court’s order severing a parent’s
rights for an abuse of discretion. Frank R. v. Mother Goose Adoptions, 239
Ariz. 184, 190, ¶ 21, 367 P.3d 88, 94 (App. 2016). Similarly, a court’s
determination of good cause is discretionary, reviewed for abuse of
discretion, and generally reversed only if the superior court’s decision was
“manifestly unreasonable, or exercised on untenable grounds, or for
untenable reasons.” Adrian E. v. Ariz. Dep’t of Econ. Sec., 215 Ariz. 96, 101,
¶ 15, 158 P.3d 225, 230 (App. 2007) (internal quotations omitted).




                                       4
                          MICHAEL T. v. DCS, J.E.
                           Decision of the Court

¶12             Parents “have a fundamental right to raise their children as
they see fit, but that right is not without limitation.” Minh T. v. Ariz. Dep’t
of Econ. Sec., 202 Ariz. 76, 79, ¶ 14, 41 P.3d 614, 617 (App. 2001). A court
may sever those rights if it finds by clear and convincing evidence that one
of the statutory grounds for severance is met, and finds by a preponderance
of the evidence that severance is in the best interests of the children. A.R.S.
§ 8-533(B); Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22, 110 P.3d 1013, 1018
(2005). If a parent does not appear at the initial hearing, the court, after
determining that the parent has been served with proper legal notice, may
find that the parent has waived their legal rights and is deemed to have
admitted the allegations of the petition by their failure to appear. A.R.S.
§ 8-535(D). The court may proceed with the hearing and may terminate the
parent-child relationship as to the parent who failed to appear based on the
record and evidence presented as provided by the rules prescribed by the
supreme court. Id.; Ariz. R.P. Juv. Ct. 66(D)(2).

¶13          Father argues the superior court erred in terminating his
parental rights due to his failure to appear for his initial hearing, i.e., by
“default.”

¶14              Father does not challenge severance of his parental rights on
the merits. Rather, he contends the superior court should not have
proceeded at the hearing in his absence, terminating his parental rights,
when he was unable to contact his attorney or the court while he resided in
a residential treatment program. See Christy A. v. Ariz. Dep’t of Econ. Sec.,
217 Ariz. 299, 304, ¶ 14, 173 P.3d 463, 468 (App. 2007) (“[T]he juvenile court
has engrafted the concept of ‘default’ . . . into the juvenile court rules or, at
least, is utilizing the ‘default’ terminology when a parent fails to appear.”).
But the failure to appear does not result in “default” in the true sense: it
represents only a “waiver of rights.” Id. (citing A.R.S. § 8-537(C)); see also
Ariz. R.P. Juv. Ct. 64(C) (stating that a termination hearing may go forward
in the parent’s absence, and may result in the termination of parental rights
based upon the record and evidence presented.); Ariz. R.P. Juv. Ct. 66(D)(2).
In such circumstances, “the better course [is] for the juvenile court to
instead consider whether the parent can show ‘good cause’ as to why they
failed to personally appear, and whether, under the circumstances, such
failure should constitute a ‘waiver of rights.’” Christy A., 217 Ariz. at 304,
¶ 14, 173 P.3d at 468.

¶15           In such instance, the trial court may set aside the “entry of
default” if there is good cause shown that: (1) mistake, inadvertence,
surprise, or excusable neglect exists; and (2) a meritorious defense to the
underlying claim exists. Id. at ¶ 16. Excusable neglect exists if the neglect


                                       5
                         MICHAEL T. v. DCS, J.E.
                          Decision of the Court

or inadvertence occurs from the “act of a reasonably prudent person in the
same circumstances.” Ulibarri v. Gerstenberger, 178 Ariz. 151, 163, 871 P.2d
698, 710 (App. 1993). “A meritorious defense must be established by facts
and cannot be established through conclusions, assumptions or affidavits
based on other than personal knowledge.” Richas v. Superior Court, 133
Ariz. 512, 517, 652 P.2d 1035, 1040 (1982).

¶16          We find no abuse of discretion in the superior court’s denial
of Father’s motion to set aside its order.

¶17           At the oral argument on Father’s motion and on appeal,
Father asserts he failed to appear at the August 17 hearing because he was
in an inpatient facility where he was not allowed his cell phone or other
personal items. Due to the removal of Father’s personal device and items
from his possession, Father had no access to the contact information for the
court, his counsel, or his family. Father argues that his admission into an
inpatient facility to address his substance abuse issues should constitute
good cause as to why he failed to personally or telephonically appear at the
severance hearing.

¶18           However, as the superior court found, Father’s multiple
failures to appear predated his failure to appear at the August 17 hearing.
Father missed all the hearings after March 8, 2016, several months before
his admission into the inpatient treatment facility. Father was notified and
aware of the case and termination proceedings. Father was aware of the
consequences resulting from his non-appearance at hearings and his non-
participation in proceedings; Father had been provided with hearing
notices, which included language paralleling Rule 64(C). Therefore,
Father’s non-appearance cannot be attributed to mistake, inadvertence, or
surprise.

¶19           It cannot be said that excusable neglect exists in these
circumstances. Father had the obligation to maintain contact with the
superior court and his counsel and could reasonably have contacted the
court or his counsel before his admittance into the inpatient facility, or
otherwise made or inquired into alternative communicative
accommodations. The court found Father’s admittance to the treatment
facility commendable, and the evidence of his admittance credible.
However, no evidence was provided showing that Father took any of the
potential steps that a reasonably prudent person would have taken in
similar circumstances to ensure their participation in a court proceeding
where child dependency was at issue.




                                     6
                          MICHAEL T. v. DCS, J.E.
                           Decision of the Court

¶20            Just as Father has failed to show that mistake, inadvertence,
surprise, or excusable neglect exists, he fails to show that a meritorious
defense to the underlying claim exists. In fact, Father does not advance any
defense to the underlying claims. He does not argue that either element of
severance was improperly decided under A.R.S. § 8-533(B): that the
statutory grounds for severance were not met, or that severance was not in
the best interest of the child.

¶21            As to the statutory ground, the evidence supports the
superior court’s finding that “[t]he child has been in an out-of-home
placement longer than nine months,” “[t]he Department made diligent
efforts to provide appropriate reunification services,” and “[Father]
substantially neglected to remedy the circumstances that caused the child
to be in an out-of-home placement.” The evidence also supports the
superior court’s finding that severance of parental rights would be in J.E.’s
best interest. Specifically, the superior court found, among other facts, it “is
in the minor child’s best interests” for termination to occur; termination of
parental rights would benefit the child because it “would allow the case
plan of adoption to go forward, which would provide the child with
permanency and stability”; and “[t]he child is currently residing in an
adoptive placement which is meeting all of his needs.” Father has failed to
show a meritorious defense exists. We find that the superior court did not
abuse its discretion in determining that Father lacked good cause for his
failure to appear at the severance hearing, and the superior court did not
abuse its discretion in subsequently severing Father’s parental rights.

                               CONCLUSION

¶22          For the foregoing reasons, we affirm the superior court’s
order severing Father’s parental rights to J.E.




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




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