Jacob G. v. Dcs

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JACOB G., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, K.G., E.G., Appellees.

No. 1 CA-JV 21-0257
FILED 3-10-2022

Appeal from the Superior Court in Maricopa County
No. JD532889
The Honorable Nicolas B. Hoskins, Judge Pro Tempore

JURISDICTION ACCEPTED; RELIEF DENIED

COUNSEL

John L. Popilek, P.C., Scottsdale
By John L. Popilek
Counsel for Appellant

Arizona Attorney General’s Office, Tucson
By Dawn R. Williams
Counsel for Appellees
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Decision of the Court

MEMORANDUM DECISION

Judge D. Steven Williams delivered the decision of the court, in which
Presiding Judge Cynthia J. Bailey and Judge Peter B. Swann joined.

W I L L I A M S, Judge:

¶1 Jacob G. (“Father”) appeals the superior court’s order
terminating his parental rights to his children. For the following reasons,
we treat the appeal as a special action. We accept jurisdiction and deny
relief.

FACTUAL AND PROCEDURAL HISTORY

¶2 Father’s two children, K.G. and E.G., were born in 2014 and
2018 respectively. Father has a mental illness which led to a prior
dependency for K.G. In that dependency, Father participated in services,
and the superior court returned the child to his custody. In October 2019,
the Department of Child Safety (“DCS”) learned that Father and the
children’s mother had engaged in domestic violence, that Father had
substance-abuse issues, and that Father’s mental-health continued to suffer.
DCS took custody of the children and petitioned for dependency.

¶3 DCS asked Father to participate in a drug test and to disclose
his mental-health treatment records, but he refused. Father was also
warned about the consequences of failing to attend court hearings. When
he failed to appear on time for a pretrial conference, the court adjudicated
the children dependent in his absence and set a case plan of family
reunification. Once Father did arrive, the court discussed reunification
services with him.

¶4 Over the next eighteen months, Father, for the most part, only
participated in visitation. DCS moved to terminate his parental rights based
upon fifteen months in an out-of-home placement. Father was again
warned of the consequences of failing to attend court hearings.
Nonetheless, he failed to appear for the initial severance hearing, and the
superior court found Father had waived his rights unless he could present
good cause for his absence. Because Father’s attorney was not present, the
court preserved its finding and set a future hearing to take evidence on the
termination motion. Father failed to appear at the next three hearings, and

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Decision of the Court

the court took evidence and terminated his parental rights. Father appealed
the termination order.

¶5 Two months later, Father moved to have the court set aside
its termination order, claiming he had good cause for his non-appearance.
This court stayed Father’s appeal and authorized the superior court to
consider his motion. The superior court then issued an order finding
Father’s motion untimely and finding he had failed to establish good cause
for his non-appearances. Father did not appeal that order.

DISCUSSION

¶6 As an initial matter, DCS argues this court lacks jurisdiction
to consider Father’s appeal because he did not file a notice of appeal from
the superior court’s order denying his motion to set aside. We agree. See
Lindsey v. Dempsey, 153 Ariz. 230, 235 (App. 1987) (“Since the ruling of
which [appellant] complains occurred after the entry of judgment and the
filing of the notice of appeal, we do not have jurisdiction to address it.”).

¶7 Father’s reliance on Budreau v. Budreau is not persuasive. 134
Ariz. 539 (App. 1982). Nowhere in Budreau does it indicate that Father
would not be required to file a new notice of appeal from an order denying
relief after judgment. See id. Indeed, those orders routinely require a new
notice of appeal. See China Doll Rest., Inc. v. Schweiger, 119 Ariz. 315, 316-17
(App. 1978). Nonetheless, given Father’s suggestion of procedural
unfairness and the important fundamental rights at issue in termination
cases, in the exercise of our discretion, we accept special action jurisdiction.
See Brionna J. v. Dep’t of Child Safety, 247 Ariz. 346, 350-51, ¶¶ 13-14 (App.
2019).

¶8 Turning to the merits, Father raises two issues in his opening
brief: (1) the superior court erred by finding untimely his motion to set aside
and (2) the court erred by not holding an evidentiary hearing on that
motion.

¶9 This court reviews a finding regarding good cause and the
denial of a motion to set aside a judgment for an abuse of discretion. Trisha
A. v. Dep’t of Child Safety, 247 Ariz. 84, 91, ¶ 27 (2019); Adrian E. v. Ariz. Dep’t
of Econ. Sec., 215 Ariz. 96, 101, ¶ 15 (App. 2007). The superior court “is in the
best position to make discretionary findings such as what constitutes good
cause for failure to appear.” Bob H. v. Ariz. Dep’t of Econ. Sec., 225 Ariz. 279,
282, ¶ 12 (App. 2010). This court therefore “will reverse only if the
[superior] court’s exercise of [its] discretion was ‘manifestly unreasonable,
or exercised on untenable grounds, or for untenable reasons.’” Adrian E.,

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215 Ariz. at 101, ¶ 15 (quoting Lashonda M. v. Ariz. Dep’t of Econ. Sec., 210
Ariz. 77, 83, ¶ 19 (App. 2005)).

¶10 To show good cause, a party must demonstrate (1) mistake,
inadvertence, surprise, or excusable neglect and (2) a meritorious defense.
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)). Proving a
meritorious defense “presents a minimal burden” and requires “no more
than showing a substantial defense to the action . . . that is not facially
unmeritorious.” Trisha A., 247 Ariz. at 90, ¶ 26 (citations and internal
quotation marks omitted).

¶11 Here, even if the superior court erred and Father’s motion was
timely, his argument that the court was required to hold an evidentiary
hearing is not availing. Father never requested an evidentiary hearing, and
he cites no authority requiring the superior court to hold one.

¶12 Moreover, Father claimed in his motion that he had good
cause for failing to appear at the July 20, 2021 termination hearing because
at some unidentified time before the hearing, he fractured his jaw, broke his
prescription glasses, and had his electronic devices and backpack stolen,
which included contact information for DCS and his attorney. Father did
not attach an affidavit or any medical records to support his motion. Nor
does Father explain why, through some effort, he could not have tracked
down contact information for the superior court, DCS, or his attorney.

¶13 Regardless, Father fails to explain his absence from the April
2021 initial severance hearing, the May 2021 continued initial severance
hearing, and the July 2021 report and review hearing. See A.R.S.
§§ 8-535(D), (E)(3), -844(F). At each of these hearings, the superior court
found Father had failed to appear without good cause and preserved those
findings until the court could take evidence on the termination motion. On
this record, we cannot say the superior court’s order denying Father’s
motion to set aside is manifestly unreasonable or exercised on untenable
grounds.

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Decision of the Court

CONCLUSION

¶14 For the foregoing reasons, we accept special action
jurisdiction and deny relief.

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

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