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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                            INGRID G., Appellant,

                                        v.

       DEPARTMENT OF CHILD SAFETY, D.G., D.G., Appellees.

                             No. 1 CA-JV 18-0329
                               FILED 3-7-2019


           Appeal from the Superior Court in Maricopa County
                             No. JD531436
                The Honorable David King Udall, Judge

                                  AFFIRMED


                                   COUNSEL

Robert D. Rosanelli Attorney at Law, Phoenix
By Robert D. Rosanelli
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By JoAnn Falgout, Paula S. Bickett
Counsel for Appellee
                         INGRID G. v. DCS, et al.
                          Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge David D. Weinzweig delivered the decision of the Court,
in which Judge Kent E. Cattani and Judge James P. Beene joined.


W E I N Z W E I G, Judge:

¶1            Ingrid G. (“Mother”) appeals the superior court’s order
affirming its dependency finding as to her two children and denying her
motion to reconsider and set aside that finding. She argues the court
violated her right to due process by accelerating to a dependency
adjudication hearing when she failed to appear at a pretrial conference and
abused its discretion in finding no good cause for her failure to appear. We
disagree and affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2            Mother and Conrad G. (“Father”) are the natural parents of
D.G. and D.G. (the “children”), born in 2007 and 2008. 1 The Department of
Child Safety (“DCS”) took the children into custody based on allegations of
Mother’s neglect and filed a dependency petition in January 2018. Mother
contested the allegations.

¶3            Mother received and signed the standard Form 1 Notice to
Parent in Dependency Action. The Form 1 Notice directed that Mother was
“required to attend all [court] hearings” and warned the court might find
she “waived [her] legal rights and admitted the allegations in the
dependency petition” if she failed to attend later proceedings without good
cause. It further warned that legal proceedings could go forward in her
absence and the court could find the children dependent based on the
record and evidence presented.

¶4           The superior court held a pretrial conference in April 2018.
Mother appeared telephonically. The court continued the pretrial
conference to July 20, 2018 at 9:30 a.m. The court also set the dependency
adjudication hearing for August 23, 2018. The minute entry reflects that
Mother received another Form 1 Notice “through her attorney.”



1     Father is not party to this appeal.


                                     2
                          INGRID G. v. DCS, et al.
                           Decision of the Court

¶5            Mother failed to appear at the continued pretrial conference
on July 20. DCS moved the superior court to proceed in her absence and
immediately hold the dependency hearing. Mother’s attorney objected and
asked for the dependency hearing to go forward on August 23 as originally
planned. Mother’s attorney could not, however, explain Mother’s absence.
After hearing from the parties, the court granted the motion to proceed,
instructing counsel for DCS to “[g]o ahead.” DCS successfully moved,
without objection, to admit a DCS report as evidence and for the court to
take judicial notice of the dependency petition. The court adjudicated the
children dependent but entered no findings.

¶6            Two weeks later, Mother moved the superior court to
reconsider and set aside its dependency finding. Mother alleged she was
unable to attend the hearing for good cause. The day of the hearing, Mother
went to urgent care after allegedly suffering from heat exhaustion. She
provided documents from the urgent care visit, which indicated that
Mother visited the facility at day’s end. She reported vomiting and
dizziness, claiming that her condition began in the morning and never
improved. She attributed the illness to her car’s broken air conditioner. Her
vitals were taken at 4:52 p.m. She was then prescribed medication at 5:41
p.m. and discharged at 5:42 p.m. A physician’s assistant wrote that Mother
should be excused because of illness.

¶7           DCS and Father objected to Mother’s motion. The superior
court denied the motion and affirmed its dependency finding. Mother
timely appealed.

                               DISCUSSION

¶8            Mother challenges the superior court’s decision to accelerate
the continued pretrial conference into a dependency adjudication hearing
because it violated her due process rights. Mother never objected on due
process grounds in the superior court, requiring us to review only for
fundamental error. Brenda D. v. Dep’t of Child Safety, 243 Ariz. 437, 447, ¶ 37
(2018). Mother bears the burden to establish the error is both fundamental
and caused her prejudice. Id. at 447-48, ¶ 38. An error is prejudicial when
it could have changed the decision of a reasonable fact-finder. Id. at 447-48,
¶ 38. Mother never argues the alleged error was fundamental or prejudicial
in her opening brief. She fails to meet her burden. Id. at 447-48, ¶¶ 38-39;
see also State v. Moreno-Medrano, 218 Ariz. 349, 354, ¶ 17 (App. 2008)




                                      3
                          INGRID G. v. DCS, et al.
                           Decision of the Court

(argument waived when defendant failed to “argue the alleged error was
fundamental”). 2

¶9             Mother next argues the superior court erred when it found
she failed to demonstrate good cause for her non-appearance at the
continued pretrial conference. We review the finding for an abuse of
discretion and will reverse only if the court’s decision was manifestly
unreasonable. Adrian E. v. Ariz. Dep’t of Econ. Sec., 215 Ariz. 96, 101, ¶ 15
(App. 2007). Mother must show her absence was from “mistake,
inadvertence, surprise or excusable neglect.” Christy A. v. Ariz. Dep’t of
Econ. Sec., 217 Ariz. 299, 304, ¶ 16 (App. 2007). “Excusable neglect exists if
the neglect or inadvertence is such as might be the act of a reasonably
prudent person in the same circumstances.” Id. (quotation omitted). The
juvenile court is in the best position to weigh the evidence and assess the
parties’ credibility in making discretionary determinations. Pima Cty.
Dependency Action No. 93511, 154 Ariz. 543, 546 (App. 1987).

¶10             On this record, the superior court acted within its discretion
and its decision was not unreasonable. See Christy A., 217 Ariz. at 305, ¶ 19.
Mother was informed of the date and time of the pretrial conference, as well
as the consequences of failing to appear. See Ariz. R.P. Juv. Ct. 54(C)(2)
(court may proceed in parent’s absence and adjudicate child dependent if,
among other things, the parent had notice of the hearing and was warned
of the consequences for failing to appear). She did not tell her attorney she
was not coming, much less provide a reason for her absence. She never
called or otherwise tried to inform the court. Given the consequences, a
reasonable parent would have made some minimal effort to inform her
counsel or the court. What is more, Mother did not seek or receive
treatment for her self-reported symptoms until day’s end—several hours
after the hearing concluded.




2      We ordered the parties to submit supplemental briefing on whether
the superior court complied with Arizona Rule of Procedure for the
Juvenile Court 54(C)(2). DCS conceded the court made no written findings
but argued that Mother waived the issue by failing to object to the superior
court’s findings below. We agree. Cf. Aleise H. v. Dep’t of Child Safety, 245
Ariz. 569, 573, ¶ 13 (App. 2018) (parent waived the argument that court did
not make a best-interests finding). At a minimum, Mother could have
raised the issue in a motion for reconsideration, motion for additional
findings or motion to amend.


                                      4
                   INGRID G. v. DCS, et al.
                    Decision of the Court

                        CONCLUSION

¶11   We affirm.




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




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