Mark S. v. Dcs ( 2015 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
MARK S., Appellant,
v.
DEPARTMENT OF CHILD SAFETY,1 L.S., K.S., Appellees.
No. 1 CA-JV 14-0292
1 CA-JV 14-0297
(Consolidated)
FILED 4-30-2015
Appeal from the Superior Court in Maricopa County
No. JD21396
The Honorable Bradley H. Astrowsky, Judge
AFFIRMED
COUNSEL
John L. Popilek, P.C., Scottsdale
By John L. Popilek
Counsel for Appellant
1 Pursuant to S.B. 1001, Section 157, 51st Leg., 2nd Spec. Sess. (Ariz.
2014) (enacted), the Arizona Department of Child Safety is substituted for
the Arizona Department of Economic Security in this matter. See ARCAP
27.
Arizona Attorney General’s Office, Tucson
By Laura J. Huff
Counsel for Appellee, Department of Child Safety
MEMORANDUM DECISION
Presiding Judge Margaret H. Downie delivered the decision of the Court,
in which Judge Patricia K. Norris and Judge Randall M. Howe joined.
D O W N I E, Judge:
¶1 Mark S. (“Father”) appeals from an order terminating his
parental rights. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY2
¶2 Father and Mother lived in Ohio with L.S. and K.S. (“the
children”).3 They separated in August 2010, and Father did not live with
the children thereafter. At some time before November 2011, the children
and Mother moved to Arizona. In January 2012, DCS took custody of the
children after Mother was arrested; Father’s whereabouts were unknown.
¶3 DCS filed a dependency petition and served Father by
publication. In August 2012, the juvenile court found the children
dependent as to Father. That same month, DCS located Father in
Kentucky and notified him of the proceedings and the services he was
expected to complete.
¶4 The children’s Guardian Ad Litem (“GAL”) moved to
terminate Father’s parental rights on the grounds of abandonment. Father
began participating in court hearings by telephone, but the court ordered
him to personally appear for the severance trial, which he did. Before the
court issued its ruling, Father moved to dismiss the juvenile court
proceedings, arguing the court lacked jurisdiction under the Uniform
2 On appeal, “[w]e view the facts in the light most favorable to
upholding the juvenile court’s order.” Ariz. Dep’t of Econ. Sec. v. Matthew
L., 223 Ariz. 547, 549, ¶ 7, 225 P.3d 604, 606 (App. 2010).
3 Mother’s parental rights were also terminated, but she is not a party
to this appeal.
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Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) based on
custody proceedings in Ohio. The juvenile court vacated its dependency
finding as to Father and dismissed the motion for termination as to him.
¶5 As a result of a UCCJEA conference, the Ohio court
relinquished jurisdiction to the juvenile court. DCS filed new dependency
and severance petitions. Although the court advised Father he must
personally appear for the consolidated dependency and severance trials,
he failed to do so. The court noted that Father had been repeatedly
ordered to personally appear, and, after a discussion with counsel, ruled
there was no good cause for Father’s absence. Trial proceeded.
¶6 On October 6, 2014, the juvenile court filed a signed minute
entry finding the children dependent, terminating Father’s parental rights,
and ordering DCS to submit findings of fact and conclusions of law.
Father filed a notice of appeal on October 20, 2014. The juvenile court
thereafter issued its findings of fact and conclusions of law on October 31,
2014.
¶7 Although Father’s notice of appeal was premature, it does
not deprive this Court of jurisdiction. See Barassi v. Matison, 130 Ariz. 418,
422, 636 P.2d 1200, 1204 (1981) (premature appeal from minute entry
where appellee is not prejudiced and a subsequent final judgment is
entered need not be dismissed). We have jurisdiction pursuant to Arizona
Revised Statutes (“A.R.S.”) sections 8-235(A), 12-120.21(A)(1), and
-2101(A)(1).
DISCUSSION
¶8 Father argues the juvenile court erred by concluding there
was no good cause for his failure to appear for trial. “[A] finding of good
cause for failure to appear is largely discretionary.” Adrian E. v. Ariz.
Dep’t of Econ. Sec., 215 Ariz. 96, 101, ¶ 15, 158 P.3d 225, 230 (App. 2007).
We will reverse only if the court’s exercise of its discretion was
“manifestly unreasonable, or exercised on untenable grounds, or for
untenable reasons.” Id.¶9 Arizona Rule of Procedure for Juvenile Court 66(D)(2) states:
If the court finds the parent . . . failed to appear at the
termination adjudication hearing without good cause
shown, had notice of the hearing, was properly served
pursuant to Rule 64 and had been previously admonished
regarding the consequences of failure to appear, including a
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warning that the hearing could go forward in the absence of
the parent . . . and that failure to appear may constitute a
waiver of rights, and an admission to the allegation
contained in the motion or petition for termination, the court
may terminate parental rights based upon the record and
evidence presented if the moving party or petitioner has
proven grounds upon which to terminate parental rights.
See also A.R.S. § 8-537(C) (If a parent does not appear for trial, after
determining appropriate notices were given, the court may terminate the
parent’s rights “based on the record and evidence presented.”).
¶10 Father does not contend he received insufficient notice of the
trial or inadequate warnings regarding the consequences of failing to
appear. Indeed, the record reflects Father was admonished several times
about the need to personally appear and the consequences of failing to do
so. Throughout the proceedings, the court made clear that it would
accommodate Father by permitting him to appear telephonically at
proceedings other than the trial.
¶11 Contrary to Father’s suggestion, this is not a “default”
situation, where the court entered a severance order based solely on his
failure to appear and implicit waiver of the right to contest the allegations.
If it were, Father would be required to, inter alia, demonstrate a
meritorious defense, see Christy A. v. Ariz. Dep’t of Econ. Sec., 217 Ariz. 299,
304, ¶ 16, 173 P.3d 463, 468 (App. 2007), which he has not done. Here, the
court conducted a trial at which Father’s counsel appeared and
participated. The court also specifically considered testimony that Father
had offered at the first severance trial and admitted a recording of that
proceeding into evidence.
¶12 A.R.S. § 8-537(A) authorizes the court to require the presence
of any party deemed necessary to resolve a severance petition, “except
that a parent who has executed a waiver pursuant to § 8-535, or has
relinquished the parent’s rights to the child shall not be required to appear
at the hearing.” Father falls under neither of these statutory exceptions.
Although the court has the discretion to allow telephonic appearances,
Ariz. R.P. Juv. Ct. 42, it is not obligated to permit parents to appear by
telephone. Willie G. v. Ariz. Dep’t of Econ. Sec., 211 Ariz. 231, 234, ¶ 14, 119
P.3d 1034, 1037 (App. 2005). Here, both DCS and the GAL objected to
Father appearing telephonically, and the court could have reasonably
concluded it was necessary to observe Father as he testified, including
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cross-examination, to assess the grounds for severance and the children’s
best interests.4
¶13 At the pretrial conference, Father claimed he would lose his
job if he appeared in person for trial. But at trial, his attorney supplied
documentation indicating only that Father would not be paid for time off
and that he was scheduled to work on the trial dates. In discussing the
letter, the following exchange took place:
[Father’s counsel:] I anticipated getting a copy of an
employee handbook saying you can’t leave during the first
90 days of your work or you get fired. Instead this person,
who’s a supervisor, attached a document explaining that
you don’t get paid if you take off from work until you reach
certain levels of --
[Court:] . . . [N]ot that he couldn’t take off work, he just
would be unpaid.
[Father’s counsel:] That’s the way I read it. . . . [T]hat’s
apparently his reason for not being here today.
Father offered no additional explanation for his failure to appear.5 Under
the circumstances, the juvenile court did not err by concluding that he
failed to establish good cause for not attending the trial in person, as
previously ordered.
4 Father does not challenge the sufficiency of the evidence supporting
the grounds for termination or the best interest determination.
5 Father’s argument that the expense of traveling to Arizona was
prohibitive was not presented at the time of trial. See Cullum v. Cullum,
215 Ariz. 352, 355 n.5, ¶ 4, 160 P.3d 231, 234 n.5 (App. 2007) (As a general
rule, a party cannot raise arguments on appeal that were not raised
below.). Moreover, the evidence established that Father traveled
extensively during the juvenile court proceedings. The court found that
Father “had the means to travel,” yet “chose to prioritize other people and
other personal business over these children and this case.”
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CONCLUSION
¶14 For the reasons stated, we affirm the juvenile court’s order
terminating Father’s parental rights.
:ama
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