In Re Term of Parental Rights as to L.F.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

No. 1 CA-JV 24-0159
FILED 12-19-2025

Appeal from the Superior Court in Maricopa County
No. JD532717
JS520802
The Honorable Michael C. Blair, Judge

AFFIRMED

COUNSEL

John L. Popilek PC, Scottsdale
By John L. Popilek
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By Ingeet Pandya
Counsel for Appellee Department of Child Safety
 IN RE TERM OF PARENTAL RIGHTS AS TO L.F.
Decision of the Court

Law Office of C B Niven PLLC, Scottsdale
By Crystal Beitler Niven
Counsel for Appellee Child

Law Office of Ed Johnson PLLC, Peoria
By Edward D. Johnson
Counsel for Appellee Placement

MEMORANDUM DECISION

Judge Michael S. Catlett delivered the decision of the Court, in which
Presiding Judge D. Steven Williams and Judge Andrew M. Jacobs joined.

C A T L E T T, Judge:

¶1 After Michael F. (“Father”) missed a pretrial conference, the
juvenile court held an accelerated termination hearing and terminated
Father’s parental rights to L.F. (“Child”). Father asked the court to
reconsider termination, which the court treated as a request to set aside
termination and then denied. Father appeals, arguing the court applied an
incorrect standard in denying his motion. We affirm.

FACTS AND PROCEDURAL HISTORY

¶2 In June 2023, the Department of Child Safety (“Department”)
received a report that police found Father in a car smoking fentanyl with
Child in the backseat. A month later, Child’s maternal grandparents
(“Grandparents”) notified the Department that Father left Child with them
with no return date. The Department petitioned to have Child declared
dependent due to Father’s substance abuse, which the court granted in
October 2023.

¶3 The Department unsuccessfully tried to contact Father to
enroll him in services to treat substance abuse. Father did not visit or
otherwise contact Child or support Child in any manner. In March 2024,
Grandparents petitioned to terminate Father’s parental rights based on
abandonment and chronic substance abuse. A.R.S. § 8-533(B)(1), (3).

¶4 Due to difficulty locating Father, the court did not hold an
initial termination hearing until July 2024. When that hearing finally

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occurred, Father accepted service and waived any defects. The court
notified Father that if he failed without good cause to attend certain
proceedings—including a pretrial conference—the court could deem that a
waiver of his parental rights and an admission to the allegations in the
petition and then proceed in his absence with a termination adjudication
hearing. A.R.S. §§ 8-535(E)(3), -537(C); Ariz. R.P. Juv. Ct. 352(d)(3). After
the initial hearing, the Department again tried to contact Father at the
number he provided, but he did not respond.

¶5 Despite the court’s notice, Father failed to appear at a pretrial
conference, and his counsel could not explain his absence. The court found
Father failed to appear without good cause and by not appearing, waived
his rights. The court held an accelerated termination hearing. See A.R.S.
§ 8-537(C); Ariz. R.P. Juv. Ct. 351(c). The court received evidence, including
evidence from Child’s 2019 dependency action involving Father, and
allowed Father’s counsel to participate.

¶6 The Department’s case specialist testified that, in her opinion,
Father could not discharge his parental duties due to his history of chronic
substance abuse and inability to maintain sobriety. The specialist based her
opinion on Child’s prior dependency involving Father for substance abuse,
his admitted use of substances, his multiple convictions for drug-related
offenses, and his refusal to participate in any treatment or drug tests with
the Department in Child’s second dependency. The specialist also
confirmed Father had not given any reason for not contacting Child since
July 2023 and is unable to maintain a normal parental relationship with
Child or provide support. The specialist agreed terminating Father’s rights
was in child’s best interests because doing so would provide permanence
and stability and Grandparents were willing to adopt.

¶7 Based on this testimony and evidence, the court found
Grandparents sufficiently proved both statutory grounds and that
termination was in Child’s best interests. The court entered an order with
findings terminating Father’s rights.

¶8 Father timely appealed. We stayed the appeal and revested
jurisdiction in the juvenile court to resolve any outstanding discovery
issues related to documents the Department did not disclose before
termination. See Ariz. Ct. App., Div. 1, Admin. Ord. 2024-08.

¶9 Back in the juvenile court, Father asked the court to reconsider
its termination order. Father argued he had good cause for not appearing—
he was incarcerated and unable to contact his counsel. In his motion,

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however, Father did not argue he had a meritorious defense against
termination.

¶10 Regardless, the court treated the motion as seeking to set
aside a judgment under Rule of Procedure for the Juvenile Court 318(c) and
held an evidentiary hearing. When asked about Father’s meritorious
defense, his counsel asserted that, based on the documents the Department
disclosed late, there was “some indication” Father received “treatment on
and off throughout” this action that “may” impact the court’s termination.
Counsel did not identify the documents supporting that statement or
present any other argument. The court responded that “it sound[ed] like
substance abuse [was] still an issue.” The court also explained that it had
reviewed the new documents, and they would not have impacted its
termination decision.

¶11 The court accepted that Father had shown good cause for his
absence. But finding Father failed to present a meritorious defense, the
court denied his motion. The court documented its ruling in two minute
entries, one denying Father’s motion and the other addressing the newly
disclosed documents. In the latter minute entry, the court explained that,
after a “thorough review” of the documents, none were “material” and they
“would not have impacted” termination.

¶12 Father did not timely appeal the court’s order denying his
motion for reconsideration, so the Department moved to dismiss his appeal.
We stayed the appeal so Father could ask the juvenile court permission to
file a delayed appeal, which the court granted. Father then filed his notice
of appeal. Ariz. R.P. Juv. Ct. 603(a)(5). We have jurisdiction. A.R.S. § 8-
235(A); Ariz. R.P. Juv. Ct. 601(b)(2)(L).

DISCUSSION

¶13 Father argues the juvenile court abused its discretion by
denying his motion to set aside termination. He argues the court applied
an incorrect standard, and his counsel’s assertion that he intermittently
underwent drug treatment was a sufficiently meritorious defense.

¶14 We review the denial of a motion to set aside termination for
an abuse of discretion. Trisha A. v. Dep’t of Child Safety, 247 Ariz. 84, 91 ¶ 27
(2019). To set aside termination, a party must demonstrate good cause for
failing to appear and a meritorious defense to the proven grounds for
termination. Id. at 89 ¶ 19. The Department does not dispute that Father
established good cause for failing to appear. So we consider only whether

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the court erred in concluding that Father did not sufficiently assert a
meritorious defense.

¶15 A meritorious defense is required because “the motion to set
aside seeks to overcome the presumptively valid judgment’s finality.” Id.
¶ 22. A motion to set aside termination must present “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); see also
Union Oil Co. of Cal. v. Hudson Oil Co., 131 Ariz. 285, 289 (1982) (the movant
must show “facts which, if proven at trial, would constitute a meritorious
defense”). Here, the court found two statutory grounds for termination—
abandonment and chronic substance abuse—and that termination was in
Child’s best interests. See A.R.S. § 8-533(B)(1), (3). For Father to prevail, his
evidence must undercut (at least to some extent) both statutory grounds
and the court’s best interests finding.

¶16 Father argues the court erred because it required him to
demonstrate that substance abuse was no longer “an issue.” Father
misconstrues the court’s response to counsel’s assertion that documents the
Department disclosed indicate he intermittently received treatment before
termination. In addition to saying it sounded like substance abuse was still
an issue, the court explained that it had reviewed the newly disclosed
documents, and none would have impacted termination, including its
finding that termination was justified based on chronic substance abuse. In
context, the court did not deny the motion because it thought Father had to
prove that substance abuse was no longer an issue. Rather, it concluded
that Father’s defense—that new documents showed he may have received
some treatment “on and off” for substance abuse—did not sufficiently
undercut termination based on chronic substance abuse.

¶17 That conclusion was correct. Father argues his counsel’s
statements were sufficient to show a meritorious defense. But Father has
not established that his counsel’s assertion about intermittent drug
treatment—or the unidentified documents counsel relied on—undercut
any of the court’s termination findings.

¶18 Even taking counsel’s statement as true, it would establish
only that Father sometimes received treatment for substance abuse before
termination. That would not undercut the court’s ultimate finding that
Father “is unable to discharge parental responsibilities because of a history
of chronic abuse of dangerous drugs, controlled substances and/or
alcohol[.]” Counsel’s statement does not, for example, sufficiently undercut

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the court’s finding that for over a year, “Father refused to communicate
with the Department and failed to engage in services meant to address his
substance abuse issues.” And it does not undercut the other record
evidence supporting the court’s findings. For example, the Department’s
specialist testified about Father’s history of chronic substance abuse starting
in 2019 during Child’s first dependency and continuing during Child’s
second dependency.

¶19 Although showing a meritorious defense presents a “minimal
burden,” Trisha A., 247 Ariz. at 90 ¶ 26, conclusory statements,
assumptions, or bare assertions are insufficient. Christy A., 217 Ariz. at 305
¶¶ 18–19. But that is all Father offered. Because counsel’s statement about
intermittent treatment does not undercut the court’s findings or the
evidence on which they were based, the court did not err in finding that
Father failed to present a meritorious defense to termination based on
chronic substance abuse. See Raymond F. v. Ariz. Dep’t of Econ. Sec., 224 Ariz.
373, 379 ¶¶ 27, 29 (App. 2010) (a parent’s history of drug use, positive drug
tests, and failure to submit to drug testing is “evidence [the parent] has not
overcome his” substance abuse, and that such abuse is chronic and would
continue).

¶20 In any event, as the Department points out, Father has never
asserted any defense against the abandonment ground for termination. So
even if counsel’s conclusory statements about substance abuse treatment
established a meritorious defense to the chronic substance abuse ground,
termination based on abandonment would remain valid. See Michael J. v.
Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 251¶ 27 (2000) (where there are
multiple statutory grounds for termination, if the court affirms on any
ground, then it need not consider others). On that basis, too, the court did
not err in denying Father’s motion to set aside.

CONCLUSION

¶21 We affirm the juvenile court’s denial of Father’s motion to set
aside termination of his parental rights to Child.

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

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