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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                            LANDELL M., Appellant,

                                         v.

           DEPARTMENT OF CHILD SAFETY, N.M., Appellees.

                              No. 1 CA-JV 17-0180
                                FILED 10-26-2017


            Appeal from the Superior Court in Maricopa County
                              No. JD529885
                 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 Amanda L. Adams
Counsel for Appellee Department of Child Safety
                       LANDELL M. v. DCS, N.M.
                         Decision of the Court



                      MEMORANDUM DECISION

Judge Thomas C. Kleinschmidt 1 delivered the decision of the Court, in
which Presiding Judge Paul J. McMurdie and Judge Peter B. Swann joined.


K L E I N S C H M I D T, Judge:

¶1            Landell M. (“Father”) appeals the superior court’s order
terminating his parental rights to N.M. Because we conclude that Father
failed to establish good cause for his failure to appear at the severance
hearing, we affirm the superior court’s order severing Father’s parental
rights to N.M.

             FACTS AND PROCEDURAL BACKGROUND

¶2            Father is the biological parent of N.M., born in January 2011.
The Department of Child Safety (“DCS”) took custody of N.M. in April 2016
on allegations of neglect by Mother 2 and abandonment by Father. In June
2016, the superior court adjudicated N.M. dependent as to Father. Father
contacted DCS for the first time in late January 2017. Before these
proceedings, Father had not seen N.M. since he was a baby.

¶3             In February 2017, DCS filed a motion to terminate Father’s
parental rights on the ground of abandonment. Father personally appeared
at the initial severance hearing, and the superior court appointed him
counsel and continued the hearing to March 20, 2017. On February 25, 2017,
DCS served Father with copies of the termination motion and notice of the
termination hearing by leaving them at his residence with his roommate.
The documents included notice that a hearing would occur on March 20,
2017, and that his failure to appear at the hearing, “without good cause
shown, may result in a finding that you have waived your legal rights and
have admitted the allegations in the Motion,” and “the hearing may go




1      The Honorable Thomas C. Kleinschmidt, retired Judge of the Court
of Appeals, Division One, has been authorized to sit in this matter pursuant
to Article VI, Section 3, of the Arizona Constitution.

2     Nicole T. (“Mother”) is not a party to this appeal.


                                     2
                        LANDELL M. v. DCS, N.M.
                          Decision of the Court

forward in your absence and may result in termination of your parental
rights based upon the record and the evidence presented to the Court.”

¶4            Father failed to appear at the severance hearing on March 20,
2017. Father’s attorney did not know of “any reason for . . . why [Father
was] not appearing by phone” as permitted by the court. The court found
Father had been properly served, had notice of the proceedings and the
consequences of his failure to appear, and had nonetheless failed to appear
without good cause shown. The court then proceeded with the termination
hearing in Father’s absence.

¶5             The court found that clear and convincing evidence
supported terminating Father’s parental rights on the abandonment
ground and that termination was in N.M.’s best interests. The court filed
its final order terminating Father’s parental rights on March 31, 2017. The
day prior, Father filed a motion to set aside the termination order, claiming
he had good cause for failing to appear because “[a]s a result of his [recent]
incarceration, he was ordered that he could not return to his place of
residence” and that he was therefore unable to contact “counsel or the
Court on the scheduled court date.” The court scheduled oral argument on
Father’s motion to set aside for April 13, 2017, and after a hearing, the court
denied the motion.

¶6           On April 13, 2017, Father timely appealed the order
terminating parental rights “signed March 29, 2017 and filed March 31,
2017.” This was one day before the order denying the motion to set aside
the severance order.

                               DISCUSSION

¶7            DCS argues that we do not have jurisdiction of this appeal
because Father only appealed the severance order filed on March 31, 2017,
but did not expressly appeal the court’s order of April 14, 2017, denying his
motion to set aside the severance order. We disagree. The motion to set
aside was denied by operation of law when the court entered its final
judgment, and this court has appellate jurisdiction over the denial of the
motion to set aside the order as well as the order itself. See Atchison, Topeka
& Santa Fe Ry. Co. v. Parr, 96 Ariz. 13, 15 (1964) (holding that motions not
ruled upon at the time of judgment are deemed denied by operation of law).
The trial court expressly ruled on the issue of Father’s failure to appear at
the severance hearing and the record on appeal contains both Father’s
motion to set aside and the accompanying transcript of oral argument. We
have jurisdiction under Article 6, Section 9, of the Arizona Constitution,



                                      3
                          LANDELL M. v. DCS, N.M.
                            Decision of the Court

Arizona      Revised      Statutes     (“A.R.S.”)     sections     8-235(A),
12-120.21(A)(1), -2101(A)(1), and Arizona Rule of Procedure for the Juvenile
Court 103(A).

¶8            The right to custody of one’s child is fundamental, but it is not
absolute. Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 248, ¶¶ 11–12
(2000). To support termination of parental rights, one or more of the
statutory grounds for termination must be proven by clear and convincing
evidence. A.R.S. § 8-537(B). In addition, the court must find by a
preponderance of the evidence that termination is in the best interests of the
child. A.R.S. § 8-533(B); Mario G. v. Ariz. Dep’t. of Econ. Sec., 227 Ariz. 282,
285, ¶ 11 (App. 2011).

¶9             We review the superior court’s order severing a parent’s
rights for an abuse of discretion. Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207
Ariz. 43, ¶ 8 (App. 2004). A court’s determination of good cause for a
parent’s failure to appear is discretionary, reviewed for abuse of discretion,
and generally reversed only if the 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 (App.
2007). Father does not argue that the grounds for termination were
inadequate. We accept the juvenile court’s finding as to the statutory
ground for termination, and the finding that termination is in the best
interests of the child. See Michael J., 196 Ariz. at 249, ¶ 13; Crystal E. v. Dep’t
of Child Safety, 241 Ariz. 576, 577, ¶ 5 (App. 2017).

¶10            If a parent is properly served with a motion for termination,
has notice of a hearing, and is advised of the consequences for failing to
appear, but does not appear and no good cause is shown for that failure,
the superior court may find the parent waived his rights and is deemed to
have admitted the statutory bases for termination as alleged in the motion.
See A.R.S. § 8–537(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, ¶¶ 13–14 (App. 2007). “The superior
court retains full discretion to assess ‘what constitutes good cause for failure
to appear,’ and to apply that discretion at the severance hearing as it deems
proper.” Brenda D. v. Dep’t of Child Safety, 242 Ariz. 150, 156, ¶ 18 (App.
2017) (citation omitted). Additionally, the superior court may set aside an
order terminating parental rights following a parent’s failure to appear 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. Christy A., 217 Ariz. at 304, ¶ 16. Excusable neglect exists if
the neglect or inadvertence occurs from the “act of a reasonably prudent
person in the same circumstances.” Ulibarri v. Gerstenberger, 178 Ariz. 151,


                                         4
                        LANDELL M. v. DCS, N.M.
                          Decision of the Court

163 (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 (Motorola, Inc.),
133 Ariz. 512, 517 (1982).

¶11            Father does not dispute that he was properly served with the
motion for termination and had previously received notice that his parental
rights could be terminated if he failed to attend proceedings without good
cause; he only argues the superior court erred in concluding he lacked good
cause for his failure to appear.

¶12           Father asserts he failed to appear at the August 17 hearing
because, upon being released from jail on March 7, 2017, a court prohibited
his access to his residence where he kept his court-related documentation,
including the contact information for the court, DCS, and his counsel.
Father argues that this predicament, caused by his compliance with a court
order, constitutes excusable neglect as to why he failed to personally or
telephonically appear at the severance hearing. However, as the superior
court found, Father did not explain what efforts he took, if any, to obtain
publicly available contact information for his attorney, DCS, or the court in
the two weeks between the date of his release from jail (March 7, 2017) and
the date of the hearing (March 20, 2017). Father failed to present any
evidence that he attempted to advise the court of his circumstances through
a friend, family member, DCS caseworker, or counsel. Further, in direct
conflict with Father’s contention, a DCS caseworker testified that after the
imposition of the March court order restricting his access to his home and
his paperwork, Father called DCS. During that phone call that occurred on
the Friday preceding the Monday hearing, a DCS caseworker reminded
Father of the hearing date and time and offered him transportation to the
hearing, which Father declined. As such, 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
participation in a court proceeding where termination of parental rights
was at issue. Unexplained neglect is not excusable. See Richas, 133 Ariz. at
515.

¶13           Just as Father failed to show mistake, inadvertence, surprise,
or excusable neglect, he further failed to show that a meritorious defense to
the underlying claim exists. Father does not advance any defense to the
underlying claims, and does not argue that the statutory grounds for
severance were not met, or that severance was not in the best interests of
the child. The superior court did not abuse its discretion in determining
that Father lacked good cause for his failure to appear at the severance


                                     5
                      LANDELL M. v. DCS, N.M.
                        Decision of the Court

hearing, and the superior court did not abuse its discretion in severing
Father’s parental rights or denying his motion to set aside that order.

                             CONCLUSION

¶14          For the foregoing reasons, we affirm the superior court’s
order severing Father’s parental rights to N.M.




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




                                       6
