In Re Term of Parental Rights as to E.G. and C.K. ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.G. and C.K.
No. 1 CA-JV 22-0254
FILED 5-2-2023
Appeal from the Superior Court in Maricopa County
No. JD529145
The Honorable Cassie Bray Woo, Judge
AFFIRMED
COUNSEL
Brittany K., Mesa
Appellant
Law Office of H. Clark Jones, LLC, Mesa
By H. Clark Jones
Advisory Counsel for Appellant
Arizona Attorney General’s Office, Mesa
By Amanda Adams
Counsel for Appellee Department of Child Safety
MEMORANDUM DECISION
Judge Angela K. Paton delivered the decision of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge D. Steven Williams joined.
IN RE TERM OF PARENTAL RIGHTS AS TO E.G. and C.K.
Decision of the Court
P A T O N, Judge:
¶1 Brittany K. (“Mother”) appeals from the superior court’s
order denying her motion to set aside the order terminating her parental
rights as to her two children. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Mother has two children who are parties to this appeal: E.G.,
who was born in 2016, and C.K., who was born in 2020.
¶3 In April 2020, the superior court adjudicated E.G. dependent
based on the Department of Child Safety’s (“DCS”) allegations that Mother
abused substances, neglected E.G., failed to protect her from abuse, and
exposed her to domestic violence. Over the next year, Mother engaged in
some reunification services offered by DCS, but failed to complete domestic
abuse counseling or substance abuse treatment.
¶4 In October 2020, Mother’s boyfriend violently assaulted her
in a motel room while she was resting in bed with two-week-old C.K. Police
reported Mother had “obvious signs of injury” including a swollen and
bloody lip, a black eye, and bruising across her back and stomach. When
police officers entered Mother’s motel room, they found two-week-old C.K.
alone in bed and noticed marijuana and empty bottles of alcohol scattered
on the floor. Police contacted DCS, and DCS took temporary custody of
C.K.
¶5 Later that day, a DCS caseworker took C.K. to the hospital
after noticing “a large red mark around the pupil of [the baby’s] eye.” An
MRI revealed several small bleeds in C.K.’s brain, and his physician said
the bleeding was consistent with “blunt force trauma.” The superior court
later adjudicated C.K. dependent.
¶6 In June 2022, DCS moved to terminate Mother’s parental
rights because the children had been in out-of-home placements for over
fifteen months. Mother appeared at the initial hearing, and the superior
court scheduled a pretrial conference for early October and a termination
hearing later in October. The court warned Mother that failure to appear at
the pretrial conference could constitute “an admission to all the facts in the
petition” and that the court could proceed with the termination hearing in
her absence.
¶7 Mother failed to appear at the pretrial conference. Mother’s
counsel was present and stated that she could not reach Mother and was
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IN RE TERM OF PARENTAL RIGHTS AS TO E.G. and C.K.
Decision of the Court
not sure why Mother was not present. The superior court determined
Mother failed to appear without good cause and granted DCS’s request to
proceed with the termination hearing in Mother’s absence. After reviewing
the parties’ exhibits and hearing testimony from a DCS specialist familiar
with the case, the superior court terminated Mother’s parental rights to E.G.
and C.K.
¶8 Nearly two weeks later, Mother moved to set aside the
termination order, arguing she had good cause for her failure to appear
because she “ha[d] COVID [and] was too ill” to attend the pretrial
conference or to “notify anyone of the cause for her absence.” In support
of her motion, Mother attached an undated photograph of a positive at-
home COVID-19 test. DCS objected to Mother’s motion, noting that
although Mother had canceled two supervised visits due to COVID-19 the
week before September 27, 2022, Mother said nothing about being ill or
unable to attend the hearing when she spoke to her caseworker two days
before the pretrial conference. DCS also alleged that the photograph of the
positive COVID-19 test Mother attached to her motion was the same
photograph she submitted to the agency when she claimed she was too ill
to visit with the children. The superior court denied Mother’s motion to set
aside.
¶9 Mother timely appealed. We have jurisdiction under Arizona
Revised Statutes (“A.R.S.”) Sections 8-235(A) and 12-120.21(A)(1).
DISCUSSION
¶10 Mother argues her case should be reopened because she had
good cause for failing to attend the pretrial conference. Specifically, Mother
argues she missed the hearing because she was “super sick” with COVID-
19 and was unable “to get out of bed for days.”
¶11 We review an order denying a motion to set aside judgment
for an abuse of discretion. Adrian E. v. Ariz. Dep’t of Econ. Sec., 215 Ariz. 96,
101, ¶ 15 (App. 2007). The superior court may set aside a termination order
entered after a parent’s failure to appear at a termination hearing if the
parent can establish “good cause” for her failure to appear. See Christy A. v.
Ariz. Dep’t of Econ. Sec., 217 Ariz. 299, 304-5, ¶ 16 (App. 2007). To establish
good cause, a parent must show (1) excusable neglect and (2) a meritorious
defense to the claims. Id. “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)).
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IN RE TERM OF PARENTAL RIGHTS AS TO E.G. and C.K.
Decision of the Court
¶12 Here, the superior court had sufficient evidence to find that
Mother’s failure to attend the pretrial conference was not due to excusable
neglect. The superior court advised Mother of her upcoming court dates,
including the pretrial conference and termination hearing dates, and
warned that failure to appear at the hearings “may be deemed an admission
to all the facts in the petition.” The court noted that Mother spoke to DCS
two days before the pretrial conference but “did not indicate . . . that she
was suffering from COVID symptoms” or that she would be unable to
participate in the hearing.
¶13 Further, the superior court found Mother failed to establish
that COVID-19 prevented her from appearing for the pretrial conference.
The court reasoned that Mother “failed to provide any corroborating
COVID test that documents the date of the test and Mother’s name on the
test.” Instead, Mother appeared to present the same photo of an at-home
COVID test she had submitted to DCS the previous month to excuse her
failure to appear at scheduled visits with her children.
¶14 On this record, the superior court had sufficient evidence to
determine that a reasonably prudent person facing the termination of her
parental rights would have communicated with her attorney or DCS that
she was too sick to appear at the hearing or would have complied with
DCS’s request to submit a dated and named COVID-19 test. Because
Mother has not shown excusable neglect, we need not address whether she
had a meritorious defense to the claims. See Christy A., 217 Ariz. at 304,
¶ 16. The superior court did not abuse its discretion in denying Mother’s
motion to set aside judgment.
CONCLUSION
¶15 We affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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