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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                              LEON M., Appellant,

                                         v.

     DEPARTMENT OF CHILD SAFETY, J.M., A.M., M.M., Appellees.

                              No. 1 CA-JV 17-0497
                                FILED 5-10-2018


            Appeal from the Superior Court in Maricopa County
                              No. JD34142
                  The Honorable Joseph C. Welty, Judge

                                   AFFIRMED


                                    COUNSEL

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

Arizona Attorney General’s Office, Phoenix
By Amber E. Pershon
Counsel for Appellees
                          LEON M. v. DCS, et al.
                           Decision of the Court


                      MEMORANDUM DECISION

Judge David D. Weinzweig delivered the decision of the Court, in which
Presiding Judge Michael J. Brown and Judge Maria Elena Cruz joined.


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

¶1          This appeal concerns a juvenile dependency hearing. Leon
M. appeals the superior court’s order declaring his three children
dependent. We affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2            Leon M. (“Father”) and Shamika B. (“Mother”) are the
biological parents of three minor children, J.M., A.M. and M.M. Father
lived in Wisconsin. His children meanwhile lived in Arizona with their
Mother and four half-siblings until April of 2017, when one of the half-
siblings died of asphyxiation. The Department of Child Safety (“DCS”)
investigated and concluded that J.M., A.M. and M.M. were unsafe and
Father had made “minimal to no efforts to support and communicate with
the children and [had] not seen the children in an extended period of time.”
DCS seized temporary custody of the children and filed a dependency
petition concerning both parents, including against Father based on neglect
due to abandonment. 1

¶3            Father was served with the dependency petition on April 24,
2017. The superior court held an initial hearing on May 25, 2017, and a
pretrial conference on June 11, 2017. Father was permitted to telephonically
participate in both. The court held a status conference on August 1, 2017.
Again, Father appeared telephonically. His counsel appeared in person all
three times.

¶4            The court then ordered a dependency hearing for October 25,
2017, to determine whether J.M., A.M. and M.M. were dependent under
A.R.S. § 8-201(15)(a). Unlike before, the court directed Father to personally
appear at the hearing.

¶5           Six days before the hearing, Father asked the court for
permission to appear telephonically, stating he was “financially unable to

1       Mother did not contest the allegations, however, and is not a party
to this appeal.


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                          LEON M. v. DCS, et al.
                           Decision of the Court

afford to come to Arizona for the trial.”   DCS objected. The court denied
Father’s motion.

¶6           The dependency hearing arrived. Father’s counsel appeared,
but Father did not. He instead called the court, was patched into the
courtroom and again asked for permission to appear telephonically. The
superior court again refused, reiterating that his motion to telephonically
appear had been denied and directing “you may hang up now.” Father
hung up. His counsel did not object.

¶7            The hearing proceeded with testimony from one witness, the
DCS case manager, who indicated that Father had never cared for or
financially supported J.M., A.M. and M.M. She further testified that Father
maintained only occasional telephonic contact with them.

¶8              At one point, DCS’s counsel asked the case manager to
confirm that Father knew his children had been removed and placed in
foster care since April 2017. Father’s counsel objected, arguing the case
manager could only speculate about Father’s knowledge. The court did not
entertain the objection and instead ruled that Father’s counsel was “not
entitled to make objections on [Father’s] behalf” because Father had waived
his presence at the hearing. Father’s counsel never objected and remained
silent for the remainder of the examination. He introduced no evidence and
examined no witnesses. The court ultimately found the children were
dependent and Father had abandoned them. 2

¶9            Father timely appealed. We have jurisdiction pursuant to
Ariz. Const. art. VI, § 9 and A.R.S. §§ 8-235(A), 12-2101(A)(1).

                               DISCUSSION

A. Denial of Permission to Telephonically Appear.

¶10            Father first argues the superior court erred when it denied his
motion to appear telephonically. We review for a clear abuse of discretion.
Willie G. v. Ariz. Dep’t of Econ. Sec., 211 Ariz. 231, 234, ¶ 13 (App. 2005).

¶11            Arizona courts “may permit” parents to appear via
telephone for a dependency hearing, but they’re not required to do so. Ariz.
R.P. Juv. Ct. 42; Willie G., 211 Ariz. at 234, ¶ 14 (superior court has “the
authority, but not an obligation, to allow the parents to appear by telephone

2     Father had not disclosed any evidence that he would present at the
hearing under Ariz. R.P. Juv. Ct. 44(A).


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                           LEON M. v. DCS, et al.
                            Decision of the Court

rather than in person”). The determination of what constitutes good cause
for a parent’s inability to appear is “largely discretionary.” Willie G., 211
Ariz. at 234, ¶ 13.

¶12          We find no clear abuse of discretion. The dependency hearing
is an important moment in the judicial process to assess and determine a
child’s best interest. The court reasonably found that it needed to
personally observe Father at the dependency hearing to reach a meaningful
and informed decision on his credibility and the children’s future. Until
that point, the superior court had allowed Father to telephonically
participate.

¶13           We recognize that travel might have posed a financial burden
on Father, but that burden is relative to and cannot be divorced from the
hearing’s purpose and consequence. In addition, Father provided no
documents or information for the superior court to assess his financial need.
Given the gravity of a dependency proceeding, it was reasonable for the
court to expect and require more from Father than his mere plea of poverty.
With actual evidence of financial distress, the court could have weighed
Father’s precise burden against the important benefits arising from Father’s
physical appearance and participation at an evidentiary proceeding to
determine his children’s future.

¶14           What is more, Father had nearly three months to research and
arrange any means or method of transportation. He also had several
months to at least inform the court of his financial concern. Yet, he waited
until six days before the hearing to file his motion to appear telephonically.

B. Due Process Arguments.

¶15            Father next maintains the superior court deprived him of due
process when it denied his motion to appear telephonically. But due
process only required that Father receive notice reasonably calculated to
inform him of an action. See Monica C. v. Ariz. Dep’t. of Econ. Sec., 211 Ariz.
89, 92, ¶ 16 (App. 2005). Father received notice of the dependency hearing
almost three months in advance.

¶16           Father likewise argues he was denied due process because the
superior court “should have allowed [him] to remain at his trial.” Neither
Father nor his counsel objected, however, meaning the issue was not
preserved for appeal. We thus review for fundamental error. Father must
demonstrate the superior court erred, the error was fundamental and
resulted in prejudice. Brenda D. v. Dep’t of Child Safety, 243 Ariz. 437, 447-
48, ¶ 38 (2018). An error is fundamental if it deprived the aggrieved party


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                           LEON M. v. DCS, et al.
                            Decision of the Court

of a fair trial. Monica C., 211 Ariz. at 94, ¶ 24. And to demonstrate prejudice,
Father must show that but for the error, the court could have reached a
different result. Brenda D., 243 Ariz. at 447-48, ¶ 38.

¶17           Father has not shown fundamental error. Even if the court
erred, Father never demonstrated prejudice arising from the error. He has
not shown, for instance, the court would have heard different facts or could
have reached a different conclusion. Father had few, if any, options to alter
the outcome. He never disclosed evidence or indicated his intent to offer
evidence at the hearing. And having not physically appeared at the
hearing, Father could not contest DCS’s factual allegations. Ariz. R.P. Juv.
Ct. 55(D)(2). At bottom, Father has not shown and cannot show the result
would have been different if he had been granted permission to listen to the
hearing from Wisconsin over the telephone.

¶18            Finally, Father argues the superior court denied him due
process by ruling his counsel could not “make objections on his behalf.”
That was error. In Brenda D., our supreme court recognized that even when
a parent fails to appear for a termination hearing “the absent parent does
not waive the right to counsel at the hearing.” Brenda D., 243 Ariz. at 446,
¶ 30. The Court expressly held “that the absent parent’s counsel has a right
to fully participate in the hearing on the parent’s behalf, including a right
to cross-examine the state’s witnesses, object to proffered evidence, and
present witnesses or other evidence.” Id. Though Brenda D. involved a
termination hearing, its reasoning and analysis apply with equal force in a
dependency hearing. Both hearings implicate the same fundamental
interest of parents to raise their children without government interference.
Compare Jade K. v. Loraine K., 240 Ariz. 414, 416, ¶ 6 (App. 2016) (describing
fundamental interest of parents in termination proceeding), with Carolina H.
v. Ariz. Dep’t of Econ. Sec., 232 Ariz. 569, 571, ¶¶ 6-7 (App. 2013) (describing
interest of parents in dependency proceeding).

¶19          The error was not fundamental, however, because Father has
not shown it resulted in the admission of any improper testimony or
inadmissible evidence. Nor has Father pointed us to any testimony he
might have elicited to change the superior court’s ruling.




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                        LEON M. v. DCS, et al.
                         Decision of the Court

                            CONCLUSION

¶20          The superior court did not abuse its discretion by denying
Father’s motion to appear telephonically and Father has not demonstrated
fundamental error on his due process claims. We affirm.




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




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