Opinion
1 CA-JV 23-0148
12-21-2023
IN RE TERMINATION OF PARENTAL RIGHTS AS TO H.F.
Maricopa County Public Advocate, Mesa By Suzanne Sanchez Counsel for Appellant Arizona Attorney General's Office, Tucson By Jennifer Blum Counsel for Appellee Department of Child Safety Legal Advocate, Phoenix By Amanda L. Adams Counsel for H.F.
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. JD39457 The Honorable Gregory Como, Judge
Maricopa County Public Advocate, Mesa By Suzanne Sanchez Counsel for Appellant
Arizona Attorney General's Office, Tucson By Jennifer Blum Counsel for Appellee Department of Child Safety
Legal Advocate, Phoenix By Amanda L. Adams Counsel for H.F.
Judge Brian Y. Furuya delivered the decision of the Court, in which Presiding Judge James B. Morse Jr., and Judge Cynthia J. Bailey joined.
MEMORANDUM DECISION
FURUYA, Judge
¶1 Danielle F. ("Mother") appeals juvenile court orders terminating her parental rights as to her child H.F. and denying her motion to reconsider the termination. For the following reasons, we affirm.
Paternity has not been established as to H.F. and there is no other parent party to this appeal.
FACTS AND PROCEDURAL HISTORY
¶2 DCS initiated this dependency in October 2022 when H.F. was three years old. Mother's significant other-known by Mother to be a sex offender not permitted around children-had called Mother's cousin to ask her to pick up H.F. The cousin arrived and found H.F. lying on Mother's chest. Mother was unconscious. Noticing H.F. looked lethargic, H.F.'s aunt brought her to a hospital, where H.F. tested positive for methamphetamine.
¶3 DCS placed H.F. with a maternal aunt and referred Mother for reunification services including substance-abuse testing and treatment, and visitation. She refused to participate in substance-abuse services, informing her case manager she: "love[s] drugs and the lifestyle . . . that goes along with drug use"; she did not intend to stop using substances; and she did not believe her substance abuse was harming H.F. She participated in one visit with H.F. in December 2022-during which she fell asleep-and was turned away from another visit that same month because of "inappropriate and threatening" behavior and because she appeared to be under the influence of substances.
¶4 H.F.'s placement met H.F.'s needs, and another maternal aunt from outside of Arizona offered to adopt H.F. The out-of-state aunt has had multiple successful visits with H.F.
¶5 DCS lost contact with Mother after January 2023. However, she has used social media to "sen[d] harassing messages" to H.F.'s placement and potential adoptive maternal aunts. Mother also apparently contacted her father to inform him she was in California.
¶6 DCS moved to terminate Mother's parental rights and the juvenile court set a hearing for June 2023. DCS properly served the termination motion and notice of hearing on Mother's counsel. However, Mother failed to appear at the hearing. The court found she had failed to appear without good cause and held a termination trial in her absence. It terminated her parental rights on neglect and substance-abuse grounds. It further found H.F. was adoptable and continuing Mother's parental rights would be detrimental to H.F.
¶7 Mother filed a motion for the court to reconsider its order terminating her parental rights, explaining she had been "stranded in Los Angeles" for three months without access to her phone or email. She also alleged a strong desire to reunify with H.F. Finding she failed to establish good cause for missing the hearing, and made no attempt to assert a meritorious defense, the court denied her motion.
¶8 Mother timely appealed and we have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") §§ 8-235, 12-120.21(A)(1), and 12-2101(A)(1).
DISCUSSION
¶9 Mother argues the juvenile court erred in denying her motion, citing her being "stranded" in Los Angeles as good cause for her absence from the hearing, and asserting her desire to reunite with H.F. establishes a meritorious defense to the termination. We disagree.
¶10 To terminate parental rights, the juvenile court must: "find by clear and convincing evidence that a statutory ground for termination exists" under A.R.S. § 8-533(B), and then "determine by a preponderance of the evidence that severance is in the child's best interests." Brionna v. Dep't of Child Safety, 255 Ariz. 471, 477 ¶ 20 (2023) (citations omitted). In reviewing the termination of parental rights, we accept the court's factual findings "if reasonable evidence and inferences support them" and will affirm the court's legal conclusions "unless they are clearly erroneous." Id. at 478-79 ¶¶ 30-31 (citations omitted).
¶11 We review orders denying motions to set aside orders to terminate parental rights for an abuse of discretion. Trisha A. v. Dep't of Child Safety, 247 Ariz. 84, 91 ¶ 27 (2019). Thus, we will not disturb the court's finding that a parent's failure to appear at the severance hearing was without good cause unless the finding is "manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons." Adrian E. v. Ariz. Dep't of Econ. Sec., 215 Ariz. 96, 101 ¶ 15 (App. 2007) (citation omitted). To prevail on a motion to set aside an order terminating parental rights after a parent failed to appear at the termination hearing, the non-appearing parent must: (1) assert they had good cause for their absence; and (2) present a "meritorious defense" to the allegations giving rise to the termination. Trisha A., 247 Ariz. at 89 ¶ 22. Establishing good cause requires a showing of mistake, inadvertence, surprise, or excusable neglect. 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. (citation omitted).
The court here treated Mother's improper motion for reconsideration as a motion to set aside a final order. We will do likewise.
¶12 Here, the court found Mother did not present good cause for her failure to attend the termination hearing. The court noted Mother did not explain why she was absent from Arizona-leaving her unable to participate in reunification services, communicate with DCS, her counsel, or the court, or participate in the dependency proceeding-when H.F. lives in Arizona and while the dependency case was proceeding in Arizona. Nor did the court find Mother's statement that she could not contact the court or her attorney credible because, within days of the termination hearing, she contacted her attorney. It also reasoned she could have accessed her email at a public library. Applying a reasonable person standard to our review of the court's findings, we see no abuse of discretion on this record.
¶13 Moreover, as the court noted, Mother made no attempt to present a meritorious defense to the termination. She argues her statement in her motion indicating she had a "strong desire to reunify with her child" constituted a meritorious defense to the court's finding that termination was in H.F.'s best interests. But the court held both that H.F. was adoptable and that refusing to terminate Mother's parental rights would be detrimental to H.F., either of which is sufficient to support the court's finding that termination was in H.F.'s best interests. See Alma S. v. Dep't of Child Safety, 245 Ariz. 146, 150 ¶ 13 (2018). Mother's statement does not present any defense to the court's finding that further attempts at reunification would be detrimental to H.F. Again, we see no abuse of discretion on this record.
¶14 The court did not abuse its discretion in finding Mother failed to provide good cause for missing the termination hearing or to make any attempt to present a meritorious defense to the grounds for termination. Accordingly, the court did not err in denying Mother's motion to reconsider its order terminating her parental rights as to H.F.
CONCLUSION
¶15 We affirm.