In Re Term of Parental Rights as to G.R.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

No. 1 CA-JV 23-0142
FILED 03-20-2025

Appeal from the Superior Court in Maricopa County
No. JD38309
The Honorable Melody Harmon, Judge

AFFIRMED

COUNSEL

Maricopa County Office of the Public Advocate, Mesa
By Seth Draper
Counsel for Appellant Emily W.

Arizona Attorney General’s Office, Tucson
By Laura J. Huff
Counsel for Appellee DCS

Maricopa County Office of the Legal Advocate, Phoenix
By Amanda Adams
Counsel for Appellee Child
 IN RE TERM OF PARENTAL RIGHTS AS TO G.R.
Decision of the Court

MEMORANDUM DECISION

Judge Andrew M. Jacobs delivered the decision of the Court, in which
Presiding Judge Cynthia J. Bailey and Vice Chief Judge Randall M. Howe
joined.

J A C O B S, Judge:

¶1 Emily W. (“Mother”) appeals an order denying her motion to
set aside the termination of her parental rights as to her child, G.R. For the
following reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

A. DCS Takes Temporary Custody of the Newborn G.R.

¶2 G.R. was born on June 18, 2021, and is the child of Mother and
Victor R. (“Father”), who is not a party to this appeal. Due to Mother’s daily
drug use during pregnancy, G.R. tested positive for fentanyl,
amphetamines, and methamphetamines at birth and remained hospitalized
for over a month with withdrawal symptoms. Because Father also
regularly used drugs after G.R.’s birth, the Department of Child Services
(“DCS”) took temporary physical custody of G.R. and placed her with her
maternal grandmother. G.R. was later placed with her maternal aunt and
uncle in January 2022, where she remained during these proceedings.

B. Mother and Father Do Not Contest G.R.’s Dependency and
Receive Services.

¶3 In August 2021, DCS filed a dependency petition alleging
Mother and Father were unable to parent. Mother and Father did not
contest the petition. The court found G.R. dependent based on Mother’s
substance abuse and unstable housing as well as Father’s abandonment and
failure to provide basic necessities. The court referred Mother and Father
for drug testing, drug treatment, supervised visitation, parent aide services,
and transportation services.

¶4 For the next two years, Mother sporadically engaged in
services, frequently causing providers to close her referrals for lack of
engagement or participation. Mother was referred to Terros for substance
abuse treatment at least five times, and every time her account was closed

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for not attending. Similarly, she was referred to the Nurturing Parenting
Program (“NPP”) three times, but her account was closed each time for not
substantially participating. Mother frequently missed drug tests and
consistently tested positive for methamphetamines and fentanyl on the
tests she did attend, although she claimed to be in and out of rehab during
this period. Mother also consistently missed or arrived late to supervised
visitation appointments.

C. The Juvenile Court Holds a Hearing and Grants DCS’s
Motion to Terminate Mother’s and Father’s Parental Rights.

¶5 In November 2022, DCS moved to terminate Mother’s and
Father’s parental rights based on both parents’ substance abuse and G.R.’s
15-month out-of-home placement. The juvenile court held a hearing on the
motion, during which Mother and Father pled no contest. G.R.’s case
manager, Maria Boozhanof, testified that Mother and Father continued to
struggle with substance abuse and were not able to successfully complete
treatment, despite DCS’s repeated referrals. The court granted the
termination motion on June 20, 2023, finding termination to be in G.R.’s best
interest because it would allow her to become adopted. Father appealed
the termination order, but Mother did not.

D. DCS Notifies Mother of Deficiencies in Its Document
Disclosure, After Which Mother Unsuccessfully Moves to
Set Aside the Termination Order.

¶6 A few months later, DCS determined it had failed to disclose
several documents to Mother and Father before trial. Its document
management system (known by the name Guardian) experienced a
systemic error in disclosure that affected juvenile cases broadly. This Court
stayed Father’s appeal, and appointed counsel for both Mother and Father
to assess the impact of the late-disclosed documents.

¶7 Mother obtained the late-disclosed documents on October 5,
2023—three-and-a-half months after the court terminated Mother’s rights.
They included: (1) a four-page supervised visitation discharge summary
report dated January 5, 2023 to July 6, 2023; (2) a five-page NPP service
closure summary dated June 13, 2023; (3) a three-page Sage Counseling
closure summary dated June 16, 2022; (4) a five-page Family Nurturing Plan
dated January 11, 2022 to July 8, 2022; (5) a sixteen-page DCS home safety
checklist for kinship placement dated November 29, 2021; (6) a ten-page
kinship foster care or significant person placement assessment dated
November 30, 2021; (7) one page showing fingerprint clearance cards; and

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(8) a four-page supervised visitation discharge summary report dated
November 9, 2021 to August 11, 2022.

¶8 On April 19, 2024—ten months after the court terminated
Mother’s rights and six months after DCS sent the late-disclosed
documents—Mother moved to set aside the termination order based on the
late disclosure. She asserted that she had entered her no-contest plea after
her attorney advised she had no potential defense to DCS’s termination
motion, but that the non-disclosed documents provided a potential defense.
Specifically, she alleged the nondisclosed NPP report would have allowed
Mother to argue DCS failed to make a diligent effort to help her become a
fit parent.

¶9 The court denied the motion as untimely because Mother filed
it ten months after the termination order, citing Rule of Procedure for the
Juvenile Court (“Juvenile Rule”) 318(c) and Rule of Civil Procedure (“Civil
Rule”) 60(c), both of which require moving to set aside no later than six
months after that order is filed. The court acknowledged the
unprecedented nature of DCS’s systemic disclosure deficiency, but
declined to excuse Mother’s untimeliness, citing Civil Rule 60(c)(6), because
the late-disclosed documents would not have changed the outcome. The
court also rejected the motion to set aside on the merits, finding Mother
failed to show she had a meritorious defense. See Trisha A. v. Dep’t of Child
Safety, 247 Ariz. 84, 89 ¶ 22 (2019) (requiring motion to set aside termination
order to establish a meritorious defense). Specifically, the court found the
late-disclosed documents were cumulative of the evidence presented at
trial or otherwise showed Mother’s failure to complete services and
therefore would not have changed the outcome.

¶10 Mother timely appealed. Ariz. R.P. Juv. Ct. 603(a)(1)(A). We
have jurisdiction. Ariz. Const. art. 6, § 9; A.R.S. §§ 8-235(A), 12-120.21(A)(1),
-2101(A)(1).

DISCUSSION

¶11 Mother argues the juvenile court abused its discretion when
it denied her motion to set aside the termination order because: (1) DCS
violated her due process rights when it did not disclose the NPP document
before trial; and (2) her motion’s timing was justified given the
extraordinary circumstances of DCS’s systemic nondisclosure. She argues
that nondisclosure kept her from having access to the relevant facts, so she
did not knowingly, intelligently, and voluntarily plead no-contest to the
termination motion.

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¶12 We review the denial of a motion to set aside for an abuse of
discretion. Trisha A., 247 Ariz. at 91 ¶ 27. A court abuses its discretion if its
decision 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) (internal quotation omitted). We review a court’s
interpretation of procedural rules and whether a parent was afforded due
process in juvenile proceedings de novo. Angelica R. v. Popko, 253 Ariz. 84,
88 ¶ 10 (App. 2022); see Brenda D. v. Dep’t of Child Safety, 243 Ariz. 437, 441
¶ 15 (2018).

I. The Juvenile Court Did Not Abuse Its Discretion by Treating
Mother’s Motion to Set Aside the Termination Order as Untimely.

¶13 Mother moved to set aside the termination order under Civil
Rule 60(b)(1), (3), and (6) (made applicable here by Juvenile Rule 318),
alleging the Guardian disclosure issues amounted to surprise, misconduct,
or an extraordinary case. Mother argues the juvenile court erred by treating
her motion to set aside as untimely because she did not learn about the late-
disclosed documents until after the six-month deadline for motions to set
aside expired. While the court had discretion to consider the motion in
these circumstances, it did not err by declining to do so.

¶14 Juvenile Rule 318(c) directs parties to file motions to set aside
by invoking Civil Rule 60(b)-(d), as slightly modified. Juvenile Rule 318(c)
requires that motions under Civil Rule 60(b)(1)-(3) be filed within three
months of the final order and requires that motions under Civil Rule
60(b)(4)-(6) be filed within six months of the final order. Meanwhile, Civil
Rule 60(c)(1) provides that the deadline for a motion to set aside “may not
be extended by stipulation or court order,” subject to exceptions not
applicable here.

¶15 Despite the strict language, this Court has held that a court
nevertheless has discretion to address an untimely motion to set aside in
limited circumstances. See Angelica R., 253 Ariz. at 88-89 ¶¶ 13-14
(recognizing that Civil Rule 60’s time constraints do not limit a court’s
authority to set aside judgment for fraud on the court or lack of
jurisdiction). But Mother does not cite any authority requiring us to do so,
and we know of none.

¶16 Mother instead argues that a court must hear an untimely
motion where failure to do so would infringe on a litigant’s due process
rights to a fair trial. See State v. Vincent, 147 Ariz. 6, 8 (App. 1985) (holding
that court had discretion to address untimely motion to dismiss criminal

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charges for preindictment delay “if precluding the motion would deny the
defendant a fair trial”). But Vincent, which Mother cites, held only that a
court has the discretion to hear an untimely motion in such circumstances—
not that it must. And the Arizona Supreme Court has recognized that a
court does not abuse its discretion by denying an untimely motion that
alleges nondisclosure violated due process, where the defendant was not
prejudiced by the nondisclosure. See State v. Picket, 121 Ariz. 142, 145 (1978).
Mother also cites Juvenile Rule 315, which grants the court discretion to
impose sanctions for disclosure violations, including “any order the court
deems appropriate.” Ariz. R.P. Juv. Ct. 315(g). But that too mistakes
discretion to grant relief for a duty to do so, and in any event, runs afoul of
Civil Rule 60(c)(1), which states the “deadline may not be extended by
stipulation or court order[.]” Ariz. R. Civ. P. 60(c)(1).

¶17 On appeal Mother also argues, for the first time, that the
termination order should be set aside under Civil Rule 60(b)(2), which
governs motions arising out of newly discovered evidence. Mother’s
waiver of this argument by not asserting it below aside, we have declined
to adopt a discovery rule for Civil Rule 60(b)(2) motions to set aside
judgments for newly discovered evidence. See McKernan v. Dupont, 192
Ariz. 550, 554 ¶ 13 (App. 1998) (declining to adopt discovery rule for Rule
60(c)(2), now renumbered as Rule 60(b)(2)). As such, this argument also
fails.

¶18 Because the juvenile court here reasonably found the
nondisclosed documents were cumulative of the evidence presented at trial
and would not have changed the result, the court did not abuse its
discretion by denying Mother’s motion to set aside as untimely. See Adrian
E., 215 Ariz. at 101 ¶ 15.

II. The Juvenile Court Did Not Abuse Its Discretion by Denying
Mother’s Motion to Set Aside the Termination Order for Lack of a
Meritorious Defense.

¶19 Because a motion to set aside a termination order challenges
the final order’s presumptive finality, and children subject to the
termination order have an interest in permanency and stability, the movant
must show a meritorious defense to the termination proceeding. Trisha A.,
247 Ariz. at 89 ¶ 22. A meritorious defense is “a good faith basis upon
which” the court could find no “statutory basis for termination and/or that
termination is not in the best interests of the child.” Christy A. v. Ariz. Dep’t.
of Econ. Sec., 217 Ariz. 299, 304 ¶ 15 n.11 (App. 2007).

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¶20 A meritorious defense could arise if DCS fails in its
constitutional duty to help reunite the parent with the child. See Santosky v.
Kramer, 455 U.S. 745, 753 (1982) (recognizing fundamental liberty interest in
care, custody, and management of children which “does not evaporate
simply because [parents] have not been model parents or have lost
temporary custody of their child to the State[]”); Jessie D. v. Dep’t of Child
Safety, 251 Ariz. 574, 581 ¶ 18 (2021) (acknowledging constitutional right to
reunification services recognized in Santosky). Arizona’s statutory scheme
for termination honors a parent’s constitutional rights by requiring DCS to
make a diligent effort to help the parent become fit before it can move to
terminate the parent’s rights. A.R.S. § 8-533(B)(8). DCS fulfills this
obligation when it “identif[ies] the conditions causing the child’s out-of-
home placement, provide[s] services that have a reasonable prospect of
success to remedy the circumstances[,] . . . and make[s] reasonable efforts
to assist the parent in areas where compliance proves difficult.” Donald W.
v. Dep’t of Child Safety, 247 Ariz. 9, 23 ¶ 50 (App. 2019).

¶21 Mother argues she established a meritorious defense because
the late-disclosed NPP report could support a defense that DCS did not
make a diligent effort to help her become a fit parent. She argues the report
indicates the NPP referral “was discontinued because she had not contacted
it as promptly as expected, despite her explanation that the delay was
necessitated by her participation in a drug-detoxification program[.]” The
juvenile court disagreed, finding the NPP report was only further evidence
of Mother’s “unsuccessful completion of services” and thus “was
cumulative to the 32 exhibits admitted at trial.” The court concluded
Mother did not show she had a meritorious defense because “[n]one of the
late disclosed records would have impacted the Court’s order terminating
her parental rights[.]”

¶22 The record supports the juvenile court’s determination. At
trial, DCS case manager Boozhanof testified that DCS referred Mother to
Terros substance abuse and NPP services multiple times, each of which
were closed for lack of participation. Trial exhibits showed Mother was
referred to—and did not complete—the NPP at least three times before the
fourth and final referral discussed in the late-disclosed report. The exhibits
also showed Mother was referred to—and did not complete—Terros
substance abuse services at least four times. They also showed Mother
unsuccessfully checked herself in and out of rehab on at least three
occasions. While the late-disclosed report does acknowledge Mother
omitted to respond to then-recent outreach attempts because she was in an
inpatient detox program, other evidence admitted at trial showed Mother
was only inpatient for six days and left the detox program before

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completing it. Thus, the juvenile court reasonably concluded the report was
cumulative to other evidence presented at trial and thus would not have
changed the outcome because it did not show DCS failed to make a diligent
effort to help Mother become a fit parent. See Trisha A., 247 Ariz. at 91 ¶ 27;
Adrian E., 215 Ariz. at 101 ¶ 15. We therefore agree that Mother did not
show a meritorious defense to termination.

III. Mother’s No-Contest Plea Was Valid.

¶23 Before a court can accept a parent’s no-contest plea in a
termination proceeding, the court must find the plea was entered
knowingly, intelligently, and voluntarily. Ariz. R.P. Juv. Ct. 353(e)(2). This
requires the parent to freely relinquish their parental rights with a full
understanding of the nature of those rights and the consequences of
relinquishing them. State v. Melendez, 256 Ariz. 14, 25 ¶ 32 (App. 2023);
Timothy W. v. Dep’t of Child Safety, 240 Ariz. 232, 232 ¶ 6 (App. 2016).

¶24 While the juvenile court found Mother entered her no-contest
plea knowingly, intelligently, and voluntarily, Mother argues the late-
disclosed documents nullify that finding. In her motion to set aside, Mother
stated she entered the plea after being advised “there was no point in
litigating any aspect of the severance motion.” She now argues the late-
disclosed NPP report changes this premise because it provides a potential
insufficient efforts defense. We disagree.

¶25 As explained above, the juvenile court did not abuse its
discretion in finding the late-disclosed NPP report did not provide the basis
for an insufficient efforts defense because it merely corroborated other
evidence presented at trial that Mother continued to struggle with
substance abuse and did not complete parenting classes. See Section II,
supra. Additionally, the late-disclosed report did not change the nature of
the parental rights Mother was waiving and did not change the
consequences of waiving those rights. It therefore did not render her no-
contest plea invalid. See Melendez, 256 Ariz. at 25 ¶ 32.

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CONCLUSION

¶26 We affirm.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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