Elbert H. v. Dcs, B.H.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ELBERT H., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, B.H., Appellees.

No. 1 CA-JV 19-0301
FILED 3-26-2020

Appeal from the Superior Court in Maricopa County
No. JS519249
JD531876
The Honorable David K. Udall, Judge

AFFIRMED

COUNSEL

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

Arizona Attorney General’s Office, Mesa
By Amanda Adams
Counsel for Appellee Department of Child Safety
 ELBERT H. v. DCS, B.H.
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Paul J. McMurdie delivered the decision of the Court, in
which Judge Jennifer B. Campbell and Vice Chief Judge Kent E. Cattani
joined.

M c M U R D I E, Judge:

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

FACTS AND PROCEDURAL BACKGROUND

¶2 The Department of Child Safety (“DCS”) began to investigate
Father and Brenda’s mother, Charla V. (“Mother”), when it received a
report that Brenda was born substance exposed to methamphetamine.1
DCS learned Mother tested positive for methamphetamine before and at
Brenda’s birth. Further, DCS discovered Father had a history of substance
abuse. During a meeting with DCS, Father appeared to be under the
influence of drugs, and he refused to submit to a drug test. DCS took
temporary custody of Brenda and filed an out-of-home dependency
petition alleging, inter alia, Father was unable to parent because of his
substance abuse and his failure to establish his paternity.

¶3 Over the next several months, Father was present and
contested the allegations in the dependency petition. Additionally, Father
participated in paternity testing that conclusively determined he is
Brenda’s biological father.

¶4 Given Father’s lack of progress to remedy the circumstances
causing Brenda to be in out-of-home care, DCS petitioned to terminate
Father’s parental relationship to Brenda under Arizona Revised Statutes
(“A.R.S.”) sections 8-533(B)(6) (notice of a claim of paternity)
and -533(B)(8)(b) (six months’ time-in-care). In the petition, DCS alleged,
among other things, that Father refused to participate in services related to

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

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 ELBERT H. v. DCS, B.H.
Decision of the Court

its concerns of domestic violence, mental health, and substance abuse. On
April 12, 2019, DCS served Father with the petition for termination and the
notice of hearing on the petition (“Notice”). The Notice informed Father of
the date for the initial severance hearing, and of his obligation to attend all
hearings, specifically:

You have a right to appear as a party in this proceeding. You
are advised that your failure to personally appear in court at
the initial hearing, pretrial conference, status conference or
termination adjudication, without good cause shown, may
result in a finding that you have waived your legal rights and
have admitted the allegations in the Petition. In addition, if
you fail to appear without good cause, the hearing may go
forward in your absence and may result in termination of
your parental rights based upon the record and the evidence
presented to the Court.

Father was present at the initial termination hearing, at which the juvenile
court scheduled a pretrial conference for August 23, 2019.

¶5 Father failed to appear at the pretrial conference. DCS
requested the juvenile court determine whether Father had good cause for
his absence, and if not, proceed with a termination hearing. Upon
questioning by the juvenile court, Father’s counsel did not have good cause
to explain Father’s absence. Father’s counsel and the guardian ad litem
nevertheless objected to any default and requested that the juvenile court
confirm the scheduled trial date. After a brief recess, the juvenile court
found Father had failed to appear without good cause, and DCS had made
reasonable efforts to finalize the permanency plan for Brenda. The juvenile
court then proceeded to hold a joint dependency and termination hearing.

¶6 DCS called Father’s case manager to testify concerning the
allegations in the termination petition for six months’ time-in-care. The case
manager testified that: (1) Brenda was under three years old when the
petition was filed and had been in an out-of-home placement for a period
longer than six months; (2) Father participated in an initial consult where
DCS determined it could not offer additional mental health and parent-aide
services until Father established sobriety; and (3) even though Father
regularly attended visits with Brenda, Father had refused to submit to drug
testing to establish sobriety. The case manager opined that termination of
Father’s parental relationship was in Brenda’s best interests because her
current placement was meeting her needs, termination would provide her

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 ELBERT H. v. DCS, B.H.
Decision of the Court

with permanency and stability, she was currently in an adoptive placement,
and she was otherwise adoptable.

¶7 The juvenile court found that DCS had proven the six months’
time-in-care ground and issued an order terminating Father’s parental
rights. Father filed a motion to set aside the termination order arguing there
was good cause to excuse his absence because the stress and emotion of his
great-aunt’s passing led Father to forget the date of the proceeding. The
juvenile court denied the motion. Father appealed, and we have jurisdiction
under A.R.S. § 8-235(A) and Arizona Rule of Procedure for the Juvenile
Court 103(A).

DISCUSSION

¶8 Father argues the juvenile court abused its discretion by
denying his motion to set aside the termination order. Father contends the
juvenile court should have accepted his excuse for failing to appear—that
he was stressed and emotional from the passing of his great-aunt and
incorrectly remembered the hearing date—and granted the motion. To
prevail on a motion to set aside, a parent must demonstrate “‘good cause’
for their nonappearance and prove a meritorious defense.” Trisha A. v. DCS, 247 Ariz. 84, 89, ¶ 22 (2019); see Ariz. R.P. Juv. Ct. 46(E); Ariz. R. Civ. P.
60(b). We review the juvenile court’s denial of a motion to set aside for an
abuse of discretion, Trisha A., 247 Ariz. at 91, ¶ 27, and 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)).

¶9 A parent can challenge a termination by default by filing a
motion to set aside the judgment alleging good cause for their
nonappearance and a meritorious defense. Trisha A., 247 Ariz. at 89, ¶ 22;
Ariz. R.P. Juv. Ct. 46(E). To demonstrate good cause for an absence, 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).

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 ELBERT H. v. DCS, B.H.
Decision of the Court

¶10 In his motion to set aside, Father informed the juvenile court
of his great-aunt’s passing and his alleged mistake in failing to remember
the date of the pretrial conference. The motion did not detail when Father’s
great-aunt passed, or allege an unavoidable event related to her passing
that forced him to miss the hearing. Instead, Father only claimed that the
emotional turmoil surrounding his great-aunt’s death caused him to forget
when the hearing was scheduled. Under these circumstances, the juvenile
court was within its discretion to conclude Father’s forgetfulness was not
good cause excusing his failure to appear.

¶11 Father further argues that in his motion to set aside, he
“advanced a meritorious defense to rebut [DCS]’s ground for termination
by arguing that [DCS] lacked the evidence necessary to prove the grounds
for termination.” To show a meritorious defense, a parent must show a
“substantial defense to the [termination]’ that is not facially
unmeritorious.” Trisha A., 247 Ariz. at 90, ¶ 26 (citations omitted)
(quotations omitted). Father does not set forth the factual support or
analysis for this argument within his opening brief. Thus, Father has
abandoned and waived this claim. Ariz. R. Civ. App. P. 13(a)(6)–(7); Ritchie
v. Krasner, 221 Ariz. 288, 305, ¶ 62 (App. 2009) (failure to present and
address argument supported by authority can constitute waiver and
abandonment of the argument).

CONCLUSION

¶12 We affirm the order terminating Father’s parental
relationship to Brenda.

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

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