                           NOTICE: NOT FOR PUBLICATION.
    UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
           LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                     IN THE
              ARIZONA COURT OF APPEALS
                                 DIVISION ONE


                             MANUEL T., Appellant,

                                         v.

DEPARTMENT OF CHILD SAFETY, E.E., A.E., V.E., Y.E., D.E.,1 Appellees.

                              No. 1 CA-JV 14-0036
                              FILED 08-19-2014


            Appeal from the Superior Court in Maricopa County
                              No. JD510625
                 The Honorable Brian K. Ishikawa, Judge

                                   AFFIRMED


                                    COUNSEL

Law Office of Bernard P. Lopez, Phoenix
By Bernard P. Lopez
Counsel for Appellant


Arizona Attorney General’s Office, Phoenix
By Eric K. Knobloch
Counsel for Appellees



1Pursuant to S.B. 1001, Section 157, 51st Leg., 2nd Spec. Sess., effective
May 29, 2014, the Department of Child Safety is substituted for the
Arizona Department of Economic Security. See Ariz. R. Civ. App. P. 27.
                        MANUEL T. v. DCS, et al.
                         Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Samuel A. Thumma delivered the decision of the Court,
in which Judge Maurice Portley and Judge Margaret H. Downie joined.


T H U M M A, Judge:

¶1            Father Manuel T. appeals from the denial of his motion to set
aside an order terminating his parental rights to A.E. (born in 2004) and
E.E. (born in 2006)2 after he failed to appear at the initial hearing on a
motion to terminate his parental rights. Father argues the superior court
abused its discretion by denying his motion to set aside because he was
incarcerated at the time of the hearing. Because Father failed to argue or
make the required factual showing that a meritorious defense to the
motion to terminate exists, and because the record supports the superior
court’s finding of abandonment, the denial of Father’s motion to set aside
is affirmed.

                FACTS AND PROCEDURAL HISTORY

¶2            In November 2012, the Department of Child Safety (DCS)
filed a dependency petition alleging, as to Father, that he had abandoned
the children. Father was in custody at the time. Father appeared by
telephone at a court hearing and mediation and in January 2013, the
children were found dependent as to Father after he denied the allegations
but submitted the matter to the court. The superior court adopted a family
reunification case plan.

¶3            Father was released from prison on supervised release on
April 10, 2013. Father apparently absconded in August 2013, his
supervised release was revoked, he was again imprisoned on September
24, 2013 and then released on December 12, 2013. From the January 2013
dependency finding until January 2014, Father did not participate in any
court hearings or services. Father did not call in to an April 5, 2013 review
hearing; did not appear at a May 8, 2013 review hearing (when he was not


2The caption has been amended to safeguard the juveniles’ identities
pursuant to Administrative Order 2013-0001.




                                     2
                         MANUEL T. v. DCS, et al.
                          Decision of the Court

in custody) and did not appear at an August 23, 2013 review hearing
(again, when he was not in custody). No good cause was provided for
Father’s failure to attend the May or August 2013 hearings. Given the lack
of progress in the case, at an August 2013 review hearing, the court
adopted a concurrent case plan of severance and adoption.

¶4           DCS made numerous attempts to contact Father and to
provide reunification services. An April 2013 Foster Care Review Board
(FCRB) report noted Father had not seen the children since May 2011.
Although Father had telephone contact with DCS in May 2013, he did not
follow up, did not respond to letters or calls, did not visit the children and
did not support them. An October 2013 FCRB report noted Father “did
not engage in services” while released, and “was reportedly incarcerated
again” in late September 2013. A late November 2013 DCS report
concludes that Father “has not come forward to parent.” An early
December 2013 minute entry reflects DCS’s report that there had been no
“contact from the parents with [DCS] . . . or the children.”

¶5            The superior court changed the case plan to severance and
adoption at a November 2013 review hearing and DCS served the motion
to terminate on Father’s counsel. At the December 4, 2013 initial hearing
on the motion to terminate, Father did not attend or call in and he had not
been in contact with his attorney recently. When the court asked about
Father’s whereabouts, his attorney stated “I have not had any contact with
my client. I’m not sure where the address [provided by another party]
came from but he’s not in prison. I don’t really have a good contact – he
hasn’t contacted me since he’s been released, so I don’t have any contact
information for him. I did receive the State’s copy of the motion,
however.” The court found Father had been properly served through
counsel, but had failed to appear without good cause shown. The court
then received evidence on the motion to terminate, allowing Father’s
counsel to fully participate in the hearing.

¶6             Along with documentary evidence, a DCS caseworker
testified that Father

              [H]asn’t had any contact with his children
              since he’s been released from prison and to my
              knowledge, he hasn’t had any contact with the
              children once incarcerated . . . I’ve located him
              while he was in prison on one occasion and at
              his release, I was able to locate him at a
              Chandler residence and had talked with him


                                      3
                       MANUEL T. v. DCS, et al.
                        Decision of the Court

             probably three to four times. After that, I
             haven’t had any contact with him. I attempted
             to send letters to engage and [he hasn’t]
             responded to any of those letters either.

The caseworker further testified that Father had not provided reasonable
support for his children; had not maintained regular contact with his
children; had not sent cards, gifts or letters or made telephone contact
with his children and had failed to maintain contact or provide reasonable
support in excess of six months. After considering the evidence received,
the superior court found that Father

             [H]as abandoned the children and has failed to
             maintain a normal parental relationship with
             the children without just cause by failing to
             provide reasonable support, maintain[] regular
             contact with the children and/or providing
             normal supervision. He’s paid no support. Sent
             no cards, gifts or letters or made any contact
             with these children and has failed to maintain
             a normal parental relationship with the
             children without just cause for a period of over
             six months.

After finding termination was in the best interests of the children, the
court granted DCS’ motion to terminate Father’s parental rights to A.E.
and E.E.

¶7           Notwithstanding that Father had been incarcerated in
September 2013, he did not contact his attorney, DCS or the court at any
time before he was released on December 12, 2013. Father, however, filed
a motion to set aside the termination order on January 13, 2014, arguing
that he was first released from prison on April 10, 2013; that his parole
was revoked and he was imprisoned from September 24, 2013 until
December 12, 2013 and “[d]ue to Father’s incarceration, he was unable to
appear for the hearing on December 4, 2013. Therefore, Father requests the
Court to vacate the default finding against him and allow him to proceed
with his rights” on the motion to terminate. Father’s motion did not
address the merits of DCS’ motion to terminate. After hearing oral
argument, the superior court denied the motion to set aside.




                                    4
                          MANUEL T. v. DCS, et al.
                           Decision of the Court

¶8           On Father’s timely appeal from the superior court’s denial of
his motion to set aside, this court has jurisdiction pursuant to Arizona
Revised Statutes (A.R.S.) sections 8-235(A), 12-2101(C) (2014).3

                                 DISCUSION

¶9              The denial of Father’s motion to set aside is reviewed for an
abuse of discretion. See Christy A. v. Ariz. Dep’t of Econ. Sec., 217 Ariz. 299,
303 ¶ 7, 173 P.3d 463, 467 (App. 2007). A motion to set aside must show
good cause in two respects: (1) mistake, inadvertence, surprise or
excusable neglect and (2) a meritorious defense to the motion to terminate
exists. Id. at 304 ¶ 16, 173 P.3d at 468 (citing cases). “A meritorious defense
must be established by facts and cannot be established through
conclusions, assumptions or affidavits based on other than personal
knowledge.” Id. at 304-05 ¶ 16, 173 P.3d at 469 (quoting Richas v. Superior
Court, 133 Ariz. 512, 517, 652 P.2d 1035, 1040 (1982)).

¶10            This court finds unpersuasive DCS’ argument that Father’s
incarceration could not satisfy the first Christy A. good cause requirement.
Incarceration unquestionably may constitute good cause for a failure to
appear. See State v. Bail Bonds USA, 223 Ariz. 394, 398 ¶ 13, 224 P.3d 210,
214 (App. 2010); see also John C. v. Superior Court (Sargeant, III), 208 Ariz. 44,
48 ¶ 16, 90 P.3d 781, 785 (App. 2004) (addressing good cause when parent
is incarcerated in another jurisdiction), superseded by statute on other
grounds as recognized in Ariz. Dep’t of Econ. Sec. v. Superior Court (Reinstein),
214 Ariz. 209, 211 ¶ 4, 150 P.3d 782, 784 (App. 2007). DCS correctly
suggests that Father could have participated by telephone while
incarcerated (and in fact did so for pre-motion to terminate hearings) and
that there was no indication Father had contacted his attorney in the
months after he was reincarcerated and before the December 4, 2013
hearing. On this record, however, this court will presume without
deciding that Father’s incarceration in September 2013 constituted good
cause for his failure to appear at the December 4, 2013 hearing.4



3 Absent material revisions after the relevant dates, statutes cited refer to
the current version unless otherwise indicated.

4 There is no record support for Father’s argument on appeal that the
superior court did not consider the Arizona Department of Corrections
printout attached to his motion to set aside indicating he was incarcerated
on December 4, 2013.



                                        5
                        MANUEL T. v. DCS, et al.
                         Decision of the Court

¶11             For the second Christy A. good cause requirement, Father
had the burden to show a meritorious defense to the motion to terminate
with admissible facts and argument. 217 Ariz. at 304 ¶ 16, 173 P.3d at 468.
Father’s motion to set aside, however, failed to meet his burden. The
motion did not purport to raise a meritorious defense to the motion to
terminate. In addition, Father’s motion to set aside did not offer any facts
or admissible evidence addressing the merits of the motion to terminate.
Similarly, on appeal, Father does not argue that he had a meritorious
defense to the motion to terminate. Accordingly, because Father did not
meet the second Christy A. good cause requirement, the superior court
properly denied his motion to set aside. Id. at 305 ¶ 19, 173 P.3d at 469
(citing cases).

¶12          Quite apart from Father’s failure to address the second
Christy A. good cause requirement, the record does not show that Father
had a meritorious defense. The record shows Father failed to maintain
contact or provide reasonable support for his children for more than six
months. See A.R.S. §§ 8-533(B)(1), -531(1). He did not maintain contact
with or support his children for an extended period while he was released
and while he was in prison. Accordingly, the record shows no meritorious
defense that could have been advanced that would have defeated DCS’
claim of abandonment. Consequently, the superior court properly denied
Father’s motion to set aside.

¶13          Finally, Father argues that, given his incarceration, “due
process requires that an inquiry or examination of the reason for non-
attendance is made if the prisoner comes forward later submitting
evidence wanting to have his case heard on the merits.” Father, however,
does not cite any authority supporting an argument that due process
requires more than the Christy A. good cause analysis. Accordingly, Father
was not denied his due process rights.5




5Without any supporting authority, Father also argues for the first time
on appeal that due process requires he receive a trial on the merits. We
will not examine an issue raised for the first time on appeal, and “[m]erely
mentioning an argument in an appellate opening brief is insufficient” to
preserve the issue. See MacMillan v. Schwartz, 226 Ariz. 584, 591 ¶ 33, 250
P.3d 1213, 1220 (App. 2011).



                                     6
                        MANUEL T. v. DCS, et al.
                         Decision of the Court

                             CONCLUSION

¶14          Finding no abuse of discretion, the superior court’s denial of
Father’s motion to set aside is affirmed.




                                :gsh




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