In Re Term of Parental Rights as to A.C.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

No. 1 CA-JV 23-0113
FILED 10-17-2023

Appeal from the Superior Court in Maricopa County
No. JS21558
The Honorable Thomas Marquoit, Judge Pro Tempore

AFFIRMED

COUNSEL

Maricopa County Legal Defender’s Office, Phoenix
By Jamie R. Heller
Counsel for Appellant LeRoy C.

Danielle C., Protected Address
Appellee

Law Office of Ed Johnson PLLC, Peoria
By Edward D. Johnson
Counsel for Appellee A.C.
 IN RE TERM OF PARENTAL RIGHTS AS TO A.C.
Decision of the Court

MEMORANDUM DECISION

Presiding Judge David D. Weinzweig delivered the decision of the Court,
in which Judge Michael S. Catlett and Judge Maria Elena Cruz joined.

W E I N Z W E I G, Judge:

¶1 Leroy C. (“Father”) appeals the juvenile court’s order
terminating his parental rights to his daughter A.C. (“Child”). We affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Father and Danielle C. (“Mother”) are the biological parents
of Child, born in September 2014. Father was incarcerated in February 2018
and is serving a lifetime prison sentence for “murder in the 1st degree,
kidnapping, aggravated assault, misconduct involving weapons and
child/adult abuse.”

¶3 Mother petitioned to terminate Father’s parental rights in
February 2023, alleging abandonment and felony convictions. Less than
two months later, Father remotely participated from prison in the initial
severance hearing. The juvenile court read Form 4 aloud during the
hearing, informing Father of his right to counsel and his responsibility to
appear in court for proceedings. It also warned Father that the severance
hearing may continue in his absence if he failed to appear. The court
postponed the initial severance hearing for a week (to April 19) so Father
could be represented by an attorney. It also appointed counsel for Father
and ordered that Father could appear telephonically at the hearing.

¶4 Seven days later, the juvenile court held the continued initial
severance hearing as scheduled. Father did not appear. Father’s counsel
avowed he was unable to contact Father, but added that Father’s
incarceration was good cause for his nonappearance. The court found
Father was properly served, had actual notice of the severance hearing and
knew of the consequences for failure to appear. The juvenile court moved
forward with the hearing and found that “[F]ather ha[d] failed to appear
without good cause but [the court was] willing to revisit that issue if a
[m]otion [was] filed indicating good cause for [F]ather’s non-appearance.”
The court ordered that “any motion regarding the issue of good cause for
failure to appear must be filed within two (2) weeks from today’s date.” A

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 IN RE TERM OF PARENTAL RIGHTS AS TO A.C.
Decision of the Court

week later, Father’s counsel moved to set aside the findings from the April
19 hearing, alleging good cause based only on incarceration.

¶5 The court denied Father’s motion, reasoning that
incarceration alone did not qualify as good cause because Father had
previously appeared while incarcerated, and Father did not explain why he
was prevented from appearing in this instance. The court then terminated
Father’s parental rights on grounds of abandonment and nature of felony
offense. The court noted that Father “ha[d] not asserted his rights at any
opportunity, such as through the family court, since his incarceration.” It
also found “the nature of the offenses prove[d] [F]ather was or would be
unfit to parent or assume parental responsibility.” It held that termination
of Father’s parental rights was in Child’s best interests, too, because of
Father’s violent nature and the possibility of adoption by Mother’s
husband, whom Child had known for the past eight years.

¶6 Father timely appealed. We have jurisdiction. See Ariz.
Const. art. 6, § 9; A.R.S. §§ 8-235(A), 12-120.21(A)(1) and -2101(A)(1); Ariz.
R.P. Juv. Ct. 601.

DISCUSSION

¶7 Father argues the juvenile court erred when it found he lacked
good cause for his failure to appear. We review that finding for an abuse
of discretion. Adrian E. v. Ariz. Dep’t of Econ. Sec., 215 Ariz. 96, 101, ¶ 15
(App. 2007). We reverse only if the juvenile court’s decision was
“manifestly unreasonable, or exercised on untenable grounds, or for
untenable reasons.” Lashonda M. v. Ariz. Dep’t of Econ. Sec., 210 Ariz. 77, 83,
¶ 19 (App. 2005) (citation omitted).

¶8 Absent good cause, the “failure to appear at the initial hearing
. . . may result in a finding that the parent . . . has waived legal rights.” Ariz.
R.P. Juv. Ct. 351(c)(2)(A). A finding of waiver may be set aside if a parent
shows “good cause” for failing to appear. Trisha A. v. Dep’t of Child Safety,
247 Ariz. 84, 89, ¶ 19 (2019) (courts may set aside waiver findings if parent
shows good cause and a meritorious defense). To establish good cause, the
parent must show “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 when “a reasonably prudent person” would do the
same “in the same circumstances.” Ulibarri v. Gerstenberger, 178 Ariz. 151,
163 (App. 1993).

¶9 Father failed to show good cause for his failure to appear. For
starters, he attended a court hearing from prison only seven days earlier.

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 IN RE TERM OF PARENTAL RIGHTS AS TO A.C.
Decision of the Court

His motion never explained what changed in that week to prevent his
appearance at the severance hearing. Nor did Father show any evidence of
his actions or efforts to attend that hearing. Next, Father had actual notice
of the hearing’s date and time, and he was warned the court could proceed
without him if he failed to attend future hearings. See Adrian E., 215 Ariz.
at 100, ¶ 12 (when notice is proper, a juvenile court may proceed with the
termination of parental rights if the parent fails to appear without showing
good cause). The superior court did not err.

¶10 Father still argues the court violated his right to due process
because his new counsel needed more time to prepare. We review that
issue de novo. Mack v. Cruikshank, 196 Ariz. 541, 544, ¶ 6 (App. 1999). The
court did not violate Father’s due process rights. Father was told about the
severance hearing and he was appointed counsel. Father’s counsel
appeared for the hearing, but Father did not. At that point, an accelerated
hearing was appropriate. See Adrian E., 215 Ariz. at 99, ¶ 10; see also
Marianne N. v. Dep’t of Child Safety, 243 Ariz. 53, 56, ¶ 16 (2017) (“[Rule
351(c)(2)(A)] implicitly authorizes the juvenile court to terminate parental
rights by default if a parent fails to appear without good cause at [the initial
hearing].”).

CONCLUSION

¶11 We affirm.

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

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