                          NOTICE: NOT FOR PUBLICATION.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


                           NATHAN C., Appellant,

                                        v.

   ARIZONA DEPARTMENT OF ECONOMIC SECURITY, T.C., A.C.,
                       Appellees.

                             No. 1 CA-JV 13-0300
                              FILED 5-22-2014


            Appeal from the Superior Court in Yavapai County
                         No. P1300JD201200032
                 The Honorable Anna C. Young, Judge

                                  AFFIRMED


                                   COUNSEL

Law Office of Florence M. Bruemmer, P.C., Anthem
By Florence M. Bruemmer, Tanya R. Imming-Hill
Counsel for Appellant

Arizona Attorney General’s Office, Tucson
By Laura J. Huff
Counsel for Appellees
                        NATHAN C. v. ADES, et al.
                          Decision of the Court



                        MEMORANDUM DECISION

Judge Maurice Portley delivered the decision of the Court, in which
Presiding Judge Donn Kessler and Judge Patricia K. Norris joined.


P O R T L E Y, Judge:

¶1            Nathan C. (“Father”) appeals the order terminating his
parental rights to his children, T.C. and A.C. He argues that the juvenile
court erred by terminating his rights in absentia because he demonstrated
good cause for his failure to appear. Finding no error, we affirm.

                FACTS 1 AND PROCEDURAL HISTORY

¶2            Father and Michelle G. (“Mother”) are the biological parents
of T.C. and A.C. Mother, however, has not been in the children’s lives for
the past decade. Although Father was in the children’s lives, he handed
over the daily care of his children to his mother and sister.

¶3            The Arizona Department of Economic Security (“ADES”)
received a report in March 2012 that the grandmother and aunt had
abused A.C. by hitting him with an umbrella. Both children were taken
into temporary custody, and ADES filed a dependency petition against
the parents on April 4, 2012. The juvenile court subsequently found the
children to be dependent as to both parents and approved a case plan of
family reunification. The children remained in foster care.

¶4            At the July 16, 2013 review hearing, the court granted the
request to change the case plan from family reunification to severance and
adoption, and ADES filed a petition to terminate the parental rights of
Father and Mother. The petition alleged that the children had been away
from Father and in out-of-home care for fifteen months or longer and
Father had been unable to remedy the circumstances that caused the
children to be in out-of-home care.



1 We view the facts in the light most favorable to upholding the superior
court’s ruling. Raymond F. v. Ariz. Dep’t of Econ. Sec., 224 Ariz. 373, 376,
¶ 13, 231 P.3d 377, 380 (App. 2010).



                                     2
                        NATHAN C. v. ADES, et al.
                          Decision of the Court

¶5             Father attended the initial severance hearing by telephone.
He, however, failed to attend the scheduled pretrial conference on
October 22, 2013. ADES, as a result, moved to proceed in absentia. The
court found that Father failed to show good cause for his failure to appear
and granted the request. The children’s case manager testified and
Father’s lawyer was given the opportunity to cross-examine her. The
court terminated Father’s rights and directed ADES to lodge an order for
its consideration. The court subsequently filed its signed formal findings
of fact and conclusions of law, and order, terminating Father’s parental
rights to the two children. Father timely appealed. 2

                               DISCUSSION

¶6          On appeal, Father argues that the juvenile court erred by
conducting the severance hearing in his absence because his counsel
demonstrated good cause for his non-appearance. We disagree.

¶7             “If a parent does not appear at a pretrial conference, . . . the
court, after determining that the parent has been instructed as provided in
§ 8-535, may find that the parent has waived the parent’s legal rights and
is deemed to have admitted the allegations of the petition by the failure to
appear.” Ariz. Rev. Stat. (“A.R.S.”) § 8-537(C); 3 accord Ariz. R.P. Juv. Ct
64(C). If the court cannot find good cause why the parent did not appear,
the court can terminate the parent’s rights “based on the record and
evidence presented.” A.R.S. § 8-537(C); accord Ariz. R.P. Juv. Ct 64(C).

¶8            Whether a parent has failed to demonstrate good cause to
excuse his or her absence from the proceeding is a ruling we review for an
abuse of discretion. Adrian E. v. Ariz. Dep’t of Econ. Sec., 215 Ariz. 96, 101,
¶ 15, 158 P.3d 225, 230 (App. 2007). “Good cause for a failure to appear is
largely discretionary” and we will not disturb it unless “manifestly
unreasonable, or exercised on untenable grounds, or for untenable
reasons.” Id. (citations omitted) (internal quotation marks omitted). To
demonstrate good cause, “the moving party must show that (1) mistake,
inadvertence, surprise or excusable neglect exists and (2) a meritorious
defense to the claims exists.” Christy A. v. Ariz. Dep’t of Econ. Sec., 217
Ariz. 299, 304, ¶ 16, 173 P.3d 463, 468.


2 Mother’s parental rights were also severed. She, however, is not a party
to this appeal.
3 Absent any changes material to this decision, we cite to the current

version of the applicable statutes.



                                      3
                        NATHAN C. v. ADES, et al.
                          Decision of the Court

¶9            Here, Father had notice of the October 22, 2013 pretrial
hearing date and was aware of the consequences for his failure to appear.
He had participated in the initial severance hearing in August 2013, and
had received and signed Form III. 4 Father did not, however, appear at the
scheduled pretrial conference. When asked by the court where Father
was, Father’s counsel replied:

               Your Honor, I do not know. He did appear for
               the [October 4, 2013]. . . mediation. He was on
               the phone. I do know that he does not have
               transportation currently. His mother is in the
               hospital and he appeared telephonically at the
               mediation because he did not have
               transportation. Since then, I have not spoken
               to him. I have not called him to remind him
               about today’s hearing.

¶10           The court found the explanation insufficient to establish
good cause for Father’s failure to appear. Moreover, Father did not
provide the court with any additional information explaining his absence,
by affidavit or otherwise, at any time prior to filing his appeal. He did not
attempt to set aside the entry of default by filing a motion for
reconsideration or motion for new trial.




4   Father was provided with and signed Form III, which stated:

        You are required to attend all termination hearings. If you
        cannot attend a court hearing, you must prove to the Court
        that you had good cause for not attending. If you fail to
        attend the Initial Termination Hearing, Termination Pre-
        Trial Conference, Status Conference, or Termination
        Adjudication Hearing without good cause, the Court may
        determine that you have waived your legal rights and
        admitted the grounds alleged in the motion/petition for
        termination. The hearings may go forward in your absence,
        and the Court may terminate your parental rights to your
        child based on the record and evidence presented.




                                     4
                        NATHAN C. v. ADES, et al.
                          Decision of the Court

¶11          Father now argues that his absence was justified for two
reasons. First, he contends that because he appeared telephonically at the
previous hearing, the court should have contacted him for the pretrial
conference. And, he argues that ADES should have provided him with
transportation. As a result, he argues that the court erred by not
continuing the hearing until the scheduled trial date of November 20,
2013. We disagree.

¶12           Father did not demonstrate why he was not at the pretrial
hearing. 5 Although his lawyer stated that he appeared for the mediation
telephonically because he did not have transportation, the failure to have
transportation or make other arrangements to appear may not be good
cause for the failure to appear. See, e.g., Bob H. v. Ariz. Dep’t of Econ. Sec.,
225 Ariz. 279, 282, ¶¶ 11-13, 237 P.3d 632, 635 (App. 2010). Moreover,
there is nothing in the record to suggest that the juvenile court was asked
to allow him to participate telephonically and nothing to suggest that the
court should have considered the issue sua sponte. And, counsel did not
ask the court at the hearing to allow her to attempt to contact him
telephonically.

¶13            Additionally, there is nothing in the record to suggest that
Father asked ADES for transportation assistance, or that it was withheld
unreasonably. Because there is nothing in the record that suggests why
Father was absent on the day of the pretrial conference hearing, the court
did not abuse its discretion by finding that he did not have an excuse for
not being present. See Richas v. Superior Court, 133 Ariz. 512, 515, 652 P.2d
1035, 1038 (1982) (stating that “[w]here there is no explanation for the
delay, there is no excuse shown and no legal ground” to support a finding
of good cause). Consequently, the court did not abuse its discretion in
proceeding to take testimony to terminate Father’s parental rights. 6




5 There was a report that Father worked the graveyard shift, which made
it difficult for him to visit with the children, but the court had no other
information.
6 Because Father did not attempt to have his default set aside before filing

the appeal, we do not address for the first time on appeal whether he had
a meritorious defense. Kimu P. v. Ariz. Dep’t of Econ. Sec., 218 Ariz. 39, 44
n.3, ¶ 19, 178 P.3d 511, 516 n.3 (App. 2008).



                                       5
                       NATHAN C. v. ADES, et al.
                         Decision of the Court

                             CONCLUSION

¶14           Based on the foregoing, we affirm the termination of Father’s
parental rights to his children, T.C. and A.C.




                                  :MJT




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