In Re Term of Parental Rights as to E.M. ( 2023 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
IN RE TERMINATION OF PARENTAL RIGHTS AS TO E.M.
No. 1 CA-JV 22-0238
FILED 3-23-2023
Appeal from the Superior Court in Maricopa County
No. JD529111
The Honorable Joshua D. Rogers, Judge
AFFIRMED
COUNSEL
Maricopa County Public Advocate, Mesa
By Suzanne W. Sanchez
Counsel for Appellant
Arizona Attorney General’s Office, Mesa
By Bailey Leo
Counsel for Department of Child Safety
IN RE TERM OF PARENTAL RIGHTS AS TO E.M.
Decision of the Court
MEMORANDUM DECISION
Vice Chief Judge David B. Gass delivered the decision of the court, in which
Judge Brian Y. Furuya and Judge Maurice Portley 1 joined.
G A S S, Vice Chief Judge:
¶1 Mother appeals the superior court’s order terminating her
parental rights to E.M., her biological child. E.M.’s father is not a party to
this appeal. We affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 This court views the evidence, and reasonable inferences
drawn from it, in the light most favorable to affirming the superior court’s
ruling. See Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 282, ¶ 13 (App.
2002).
¶3 In September 2021, mother gave birth to E.M., and both tested
positive for methamphetamine. Mother, who had untreated health
problems and received no prenatal care, has a history of substance abuse.
E.M. was born “blue and limp with shallow breathing” but recovered in the
hospital. Two weeks after E.M.’s birth, the Department of Child Safety
(DCS) took custody of her and filed a dependency petition. The superior
court adjudicated her dependent five months later.
¶4 DCS offered mother services, including substance-abuse
testing, assessment, and treatment. DCS also provided parent-aide services,
visitation, and transportation. Throughout the case, mother continued to
use methamphetamine and minimally participated in services. Seven
months after E.M.’s birth, DCS moved to terminate her parental rights on
two grounds: chronic substance-abuse and six-months out-of-home
placement. See A.R.S. § 8-533.B.3, .8.b.
¶5 When E.M. was about nine-months old, mother attended the
initial termination hearing when the superior court set a pretrial conference
for ten days later. When mother failed to appear at the pretrial conference,
1 The Honorable Maurice Portley, 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.
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IN RE TERM OF PARENTAL RIGHTS AS TO E.M.
Decision of the Court
the superior court conducted an in-absentia termination trial and granted
DCS’s termination motion. Mother later moved to set aside the termination
order, arguing good cause supported her non-appearance because she “was
homeless and without a phone for the days immediately before and after”
the hearing. As a result, she said she “had no way of contacting the court,
counsel, or the department for assistance.”
¶6 The superior court denied mother’s motion, finding mother
“failed to provide any credible explanation of how the phone was lost, the
specific period when it was lost, or when/how it was recovered or a new
phone was otherwise obtained.” The superior court also found mother
failed to explain why she could not obtain another prepaid phone or contact
the court, her counsel, or DCS through some other means. And mother did
not explain why she could not obtain transportation to attend the hearing.
¶7 This court has jurisdiction over mother’s timely appeal under
article VI, section 9, of the Arizona Constitution, and A.R.S. §§ 8-235.A,
12-120.21.A, and -2101.A.1.
ANALYSIS
¶8 Mother argues the superior court abused its discretion by not
setting aside the termination order. “If a parent does not appear at the
pretrial conference . . . , the court . . . 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.” A.R.S. § 8-537.C. “A finding of good
cause for a failure to appear is largely discretionary.” Adrian E. v. Ariz. Dep’t
of Econ. Sec., 215 Ariz. 96, 101, ¶ 15 (App. 2007) (cleaned up). This court will
reverse the superior court’s decision only if it abused its discretion,
meaning its decision is “manifestly unreasonable, or exercised on untenable
grounds, or for untenable reasons.” Id. (cleaned up).
¶9 To prevail on a claim of good cause for nonappearance, a
party must show (1) “mistake, inadvertence, surprise or excusable neglect”
and (2) “a meritorious defense to the claims.” 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. (quoting Ulibarri v.
Gerstenberger, 178 Ariz. 151, 163 (App. 1993)). The superior court has broad
discretion in deciding whether to find good cause for failure to appear. See
John C. v. Sargeant, 208 Ariz. 44, 47, ¶ 13 (App. 2004), superseded on other
grounds as recognized by Ariz. Dep’t of Econ. Sec. v. Reinstein, 214 Ariz. 209,
211, ¶ 4 (App. 2007).
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IN RE TERM OF PARENTAL RIGHTS AS TO E.M.
Decision of the Court
¶10 Here, mother argues the superior court’s findings “do not
reflect either [m]other’s circumstances or those of a typical homeless
person” because she could not have simply bought a new phone or asked
to borrow one. Though mother eventually replaced her lost cell phone, she
did not explain why she could not have done so earlier. The superior court
did not find credible mother’s general assertion she lost her cell phone
around the time of the hearing. And mother’s motion to set aside is silent
on what, if any, steps she took to either attend the hearing or contact the
court, her counsel, or DCS through some other means.
¶11 Mother argues the superior court’s suggestion she could have
borrowed someone’s phone “ignore[s] the highly predictable response by
any rational person when approached by a homeless person asking to
borrow one’s cell phone.” This court recognizes the complex obstacles
accompanying homelessness. But missing from mother’s argument is any
affirmative action reasonably prudent people would have taken when faced
with the termination of their parental rights. Mother did not explain why
she could not have used a public computer, asked her aunt (who was E.M.’s
placement), or simply asked others for directions to the court.
¶12 As a final point, even if mother had shown good cause, she
also had to show a meritorious defense. See Trisha A. v. Dep’t of Child Safety,
247 Ariz. 84, 89, ¶ 19 (2019). A meritorious defense requires a facially
meritorious, “substantial defense to the action.” Id. at 90, ¶ 26 (citation
omitted). Facts must establish the defense. Christy A., 217 Ariz. at 304–05,
¶ 16. “[C]onclusions, assumptions, or affidavits based on other than
personal knowledge” are insufficient. Id.
¶13 Here, mother asserted she was “still seeking visitation”
through placement, so severance was not in E.M.’s best interests. The
parties dispute whether a meritorious defense can apply to a best-interests
determination. Even assuming it could, mother failed to show one here. See
Trisha A., 247 Ariz. at 89, ¶ 22.
¶14 Mother’s conclusory statement, even if true, does not
challenge the court’s finding E.M. would benefit from termination in
several ways—including becoming free for adoption by a relative who had
been meeting her needs and could give her permanency and stability. And
mother does not say whether she was regularly seeking visitation or if her
inability to seek visitation after severance would cause E.M. a detriment.
Mother did not suggest she had a strong bond with E.M. Additionally, her
statement she was “still seeking visitation” does not undermine the case
manager’s testimony “[m]other participated in one visit[] recently,” but
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IN RE TERM OF PARENTAL RIGHTS AS TO E.M.
Decision of the Court
before then, “ha[d] closed out of numerous visitation referrals.” Indeed, the
superior court considered mother’s recent visit with E.M., but concluded
severance was still in E.M.’s best interests.
CONCLUSION
¶15 We affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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