Philip W. v. Dcs, J.M.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

PHILIP W., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, J.M., Appellees.

No. 1 CA-JV 19-0068
FILED 8-27-2019

Appeal from the Superior Court in Maricopa County
No. JD35620
The Honorable Sara Agne, Judge

AFFIRMED

COUNSEL

The Stavris Law Firm, PLLC, Scottsdale
By Alison Stavris
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By Sandra L. Nahigian
Counsel for Appellee Department of Child Safety
 PHILIP W. v. DCS, J.M.
Decision of the Court

MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge Maria Elena Cruz joined.

M c M U R D I E, Judge:

¶1 Philip W. (“Father”) appeals from a juvenile court order
terminating his parental relationship to his child, Jordan. For the following
reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 The department of child safety (“DCS”) began to investigate
Father and Jordan’s mother, Aleena M. (“Mother”), when it received a
report that Jordan had been born substance exposed to marijuana,
methadone, and opiates. 1 During the investigation, Father admitted to DCS
that he and mother actively used heroin during Mother’s pregnancy and
disclosed that they had used heroin together recently. DCS requested
Father submit to a hair follicle test, which returned positive for methadone,
codeine, morphine, and heroin. DCS then took temporary custody of Jordan
and shortly thereafter filed an out-of-home dependency petition with the
juvenile court. The juvenile court found Jordan dependent as to Father and
established the case plan to family reunification concurrent with severance
and adoption.

¶3 On January 8, 2019, DCS moved to change the case plan to
severance and adoption, which the court granted over Father’s objection.
DCS subsequently filed a motion requesting the court terminate Father’s
parental relationship to Jordan under Arizona Revised Statutes (“A.R.S.”)
sections 8-533(B)(3) (chronic substance abuse) and -533(B)(8)(b) (six
months’ time-in-care). On February 7, 2019, the juvenile court held an initial
severance hearing. At the hearing, Father expressed his desire to contest the
motion for termination, and the court summarized and provided Father
with a copy of a “Notice to Parent in a Termination Action,” Ariz. R.P. Juv.
Ct. Form 3 (“Form 3 Notice”). The Form 3 Notice informed Father that he
was required to attend all termination hearings, and that if he failed to

1 Mother’s parental rights to Jordan were terminated in the same
proceeding, but she is not a party to this appeal.

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 PHILIP W. v. DCS, J.M.
Decision of the Court

attend any hearing without good cause, the juvenile court could determine
that he waived his legal rights, admitted the grounds for termination
alleged in the motion, and go forward with a termination adjudication
hearing in absentia. It also notified Father that the court had scheduled a
pretrial conference for March 7, 2019. Father signed the Form 3 Notice,
thereby acknowledging he had received a copy of the document containing
the date and time of the hearing.

¶4 On March 7, 2019, at the time scheduled for the pretrial
conference, 2 Father failed to appear. Upon questioning by the court,
Father’s counsel explained:

It sounds like he had the dates mixed up. He is at work
currently. I asked if he would be able to call in. He’s unable to
do that because of where he is at work.

Father’s counsel requested a brief continuance and that the court find good
cause for Father’s non-appearance at the pretrial conference. DCS asked the
court to proceed in Father’s absence and argued that, given the Form 3
Notice provided to Father, his alleged mistake concerning the date of the
hearing was not good cause excusing his failure to appear. The juvenile
court found as follows:

[G]iven the admonitions to the parents given to them in
person on February 7th by this Court, and their lack of
appearance today and the lack of good cause shown, I will
find that they have failed to appear without good cause and
we may proceed in their absence to adjudicate the allegations
in the Department’s motion as they are deemed to have
admitted those by their failure to appear.

The court then proceeded to hold a termination adjudication hearing.

¶5 DCS called Father’s case manager to testify concerning the
allegations in the termination motion. The case manager testified that:

2 We note there is a discrepancy between the time specified in the
minute entry for the pretrial conference and the certified transcript of the
proceedings; the minute entry notes the hearing began at 11:11 AM while
the transcript states the time the hearing started at 9:20 AM. However, we
find this discrepancy irrelevant to this appeal because Father has only
asserted that he mistook the date of the hearing, not the time set for the
hearing.

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 PHILIP W. v. DCS, J.M.
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(1) Father admitted to a long history of substance abuse, had tested positive
for opiates, codeine, and heroin in March 2018, and had failed to test again
since that date; (2) Father had been offered substance abuse testing and
treatment programs, case management services, team decision-making
meetings, transportation, case plan staffing, child and family team
meetings, and parent aide services; and (3) Father had been closed out
unsuccessfully from three referrals for substance abuse treatment due to
lack of participation. The case manager also opined that termination of
Father’s parental relationship was in Jordan’s best interests because his
current placement was meeting his needs, termination would provide him
with permanency and stability, he had bonded with a placement that was
waiting to adopt him, and he was otherwise adoptable.

¶6 After the hearing, the court issued a signed order terminating
Father’s parental relationship to Jordan under both the chronic substance
abuse and six months’ time-in-care grounds. Father timely appealed, and
we have jurisdiction under A.R.S. § 8-235(A) and Arizona Rule of
Procedure for the Juvenile Court 103(A).

DISCUSSION

A. The Juvenile Court Did Not Abuse Its Discretion by Denying
Father’s Motion to Continue the Pretrial Conference.

¶7 Father argues the juvenile court abused its discretion by
denying his motion to continue the March 2019 pretrial conference.
Specifically, Father contends the court erred by refusing to find that his
failure to appear because of an “unintentional mix up of the hearing dates
as well as his inability to participate [in] the hearing by telephone due to his
work obligation[s]” constituted good cause to continue the hearing.
“Motions to continue are addressed to the sound discretion of the trial court
and its decision will not be reversed absent a clear abuse of discretion.”
Yavapai County Juv. Action No. J-9365, 157 Ariz. 497, 499 (App. 1988), holding
modified on other grounds by Maricopa County Juv. Action No. JS-7499, 163 Ariz.
153, 157–58 (App. 1989). Under Arizona Rule of Procedure for the Juvenile
Court 46(F), “[m]otions to continue shall be granted only upon a showing
of good cause.”

¶8 We find no abuse of discretion occurred here. The record
shows that during the initial termination hearing in February 2019, the
court provided Father with a Form 3 Notice and discussed its contents with
him. The document, which Father signed, clearly and explicitly notified him
of the correct date of the pretrial conference. Given these facts, we cannot

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Decision of the Court

say the court abused its discretion by concluding Father had not shown
good cause to continue the pretrial conference.

B. The Juvenile Court Did Not Abuse Its Discretion by Finding
Father Failed to Appear Without Good Cause and Proceeding with
the Termination Hearing in Father’s Absence.

¶9 Father also argues the juvenile court abused its discretion by
converting the March 2019 pretrial conference into a termination hearing
after finding Father failed to appear without good cause. Father contends
the court should have accepted his excuse for failing to appear—that he
mistook the date of the hearing and could not appear telephonically due to
work obligations—and not gone forward with the termination hearing in
his absence. We review the juvenile court’s finding that a parent failed to
appear without good cause for an abuse of discretion and will reverse only
if “the juvenile court’s exercise of that discretion was ‘manifestly
unreasonable, or exercised on untenable grounds, or for untenable
reasons.’” Adrian E. v. ADES, 215 Ariz. 96, 101, ¶ 15 (App. 2007) (quoting
Lashonda M. v. ADES, 210 Ariz. 77, 83, ¶ 19 (App. 2005)).

¶10 According to Arizona Rule of Procedure for the Juvenile
Court 64(C), the juvenile court may “terminate parental rights by default if
a parent fails to appear without good cause at any one of four types of court
proceedings,” including pretrial conferences. Marianne N. v. DCS
(“Marianne II”), 243 Ariz. 53, 56, ¶ 16 (2017); see also Adrian E., 215 Ariz. at
100, ¶ 12. To show good cause, a parent must show that “mistake
inadvertence, surprise or excusable neglect exists.” Christy A. v. ADES, 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 juvenile court is in the best position to make
discretionary findings such as what constitutes good cause for failure to
appear.” Bob H. v. ADES, 225 Ariz. 279, 282, ¶ 12 (App. 2010).

¶11 Here, the juvenile court rejected the proffered reason for
Father’s failure to appear after finding that Father had been admonished at
the initial termination hearing in February 2019 about the date of the
pretrial conference and the potential consequences if he failed to appear.
The record supports that finding and shows that Father received a copy of
the Form 3 Notice with the correct date for the March 2019 pretrial
conference. Under these circumstances, the court was well within its
discretion to conclude that Father’s alleged mistake regarding the date of
the hearing was not good cause excusing his failure to appear. See Marianne

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 PHILIP W. v. DCS, J.M.
Decision of the Court

N. v. DCS (“Marianne I”), 240 Ariz. 470, 474, ¶¶ 16–17 (App. 2016) (no abuse
of discretion where the parent was provided Form 3 notice and only
assertion of good cause was a mistake regarding the date of the pretrial
conference), opinion vacated in part, Marianne II, 243 Ariz. at 59, ¶ 32.
Accordingly, the juvenile court did not err by going forward with the
termination hearing in absentia and terminating Father’s parental
relationship. 3

CONCLUSION

¶12 For the foregoing reasons, we affirm the order terminating
Father’s parental relationship to Jordan.

AMY M. WOOD • Clerk of the Court
FILED: AA

3 Father does not challenge the sufficiency of the evidence supporting
termination of his parental relationship or any other aspect of the
termination hearing. Father has therefore abandoned and waived any claim
that the court erred by finding the alleged statutory grounds for
termination or that termination of his parental relationship was in Jordan’s
best interests. See Crystal E. v. DCS, 241 Ariz. 576, 577–78, ¶¶ 5–8 (App.
2017). Nonetheless, as detailed above, reasonable evidence supports the
juvenile court’s findings.

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