Kelly M. v. Karen K., Peter K., B.L. ( 2016 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
KELLY M., Appellant,
v.
KAREN K., PETER K., B.L., Appellees.1
No. 1 CA-JV 16-0022
FILED 7-7-2016
Appeal from the Superior Court in Maricopa County
No. JS517828
The Honorable Shellie F. Smith, Judge Pro Tempore
AFFIRMED
COUNSEL
The Stavris Law Firm, PLLC, Scottsdale
By Christopher Stavris
Counsel for Appellant
Crider Law, PLLC, Mesa
By Bradley J. Crider
Counsel for Appellees
1 We have amended the caption because the juvenile court vested
legal custody and financial responsibility of B.L. in Karen and appointed
Peter and Karen as guardians. All parties shall use the amended caption in
papers filed in this appeal.
KELLY M. v. KAREN K., PETER K., B.L.
Decision of the Court
MEMORANDUM DECISION
Judge Donn Kessler delivered the decision of the Court, in which Presiding
Judge Diane M. Johnsen and Judge Patricia A. Orozco joined.
K E S S L E R, Judge:
¶1 Kelly M. (“Kelly”) appeals the juvenile court’s judgment
severing her rights to her child, B.L. Kelly argues that the court erred when
it terminated her parental rights for her failure to appear for a pretrial
conference and that the court should not have proceeded in her absence.
For the following reasons, we affirm the judgment terminating Kelly’s
parental rights.
FACTS AND PROCEDURAL BACKGROUND
¶2 Kelly and K.L. (“Father”) are the biological parents of B.L.,
born in 2008.2 Grandparents Peter and Karen took custody of B.L. in
February 2013 at the request of Child Protective Services.3 Karen, on behalf
of herself and Peter, filed petitions for termination of parental rights
between B.L. and Father and Kelly on the basis of abandonment.
¶3 Kelly appeared and contested the severance filing at the initial
hearing. The juvenile court set a pretrial conference for January 20, 2016,
and set a mediation hearing for Kelly regarding dependency for January 13,
2016. In the initial hearing minute entry, the court confirmed that Kelly
could appear by telephone at the pretrial conference, the date and time of
the conference, and the telephone number for her to call in. The minute
entry also confirmed that if a party failed to appear for the pretrial
conference the failure could be deemed an admission to all the facts in the
2 Father, whose parental rights were terminated, is not a party to this
appeal.
3 The division of Child Protective Services of the Arizona Department
of Economic Security was subsequently renamed and reorganized as the
Department of Child Safety. See S.B. 1001, 51st Leg., 2d Spec. Sess. (Ariz.
2014).
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KELLY M. v. KAREN K., PETER K., B.L.
Decision of the Court
petition and the court could proceed to an adjudication of the ultimate
issues.
¶4 Kelly and Father failed to appear at the January 20 pretrial
conference. Kelly’s counsel appeared and stated she did not know why
Kelly failed to appear. The juvenile court proceeded in their absence.
¶5 At the pretrial conference, Karen testified that she had taken
care of B.L. since February 2013. She also testified that Kelly moved to
California sometime in 2014, without telling Karen and without going to
see B.L. before she left. Karen also testified that Kelly had contact with B.L.
until July 2014, but did not physically see B.L. from July 2014 to July 2015.
She also testified B.L. has since considered Karen and Peter as his parents.
Karen further testified she and Peter always allowed Kelly to contact B.L.,
but they limited the contact to specific times at the request of B.L.’s
counselor. She also testified that some form of guardianship or legal
custody “would not provide a permanent stable relationship for [B.L.].”
Karen thought that severance was in the child’s best interest.
¶6 The juvenile court found by clear and convincing evidence
that both Father and Kelly had abandoned B.L. The court also found it was
in B.L.’s best interest to terminate both parent-child relationships to further
Karen and Peter’s plans of adoption. Accordingly, the court terminated
Father and Kelly’s parental rights, and vested legal custody and financial
responsibility for B.L. in Karen and appointed Peter and Karen as guardians
for B.L.
¶7 Kelly timely appealed from the severance judgment. See Ariz.
R.P. Juv. Ct. (“Rule”) 104(A). While the appeal was pending, Kelly filed a
motion for reconsideration to set aside the judgment. Without any attached
affidavit, Kelly’s counsel asserted that after the severance hearing Kelly had
called the counsel to determine what number she should use to call in and
telephonically appear. The juvenile court denied the motion and affirmed
the severance.
¶8 This Court has jurisdiction pursuant to Arizona Revised
Statutes (“A.R.S.”) sections 8-235(A) (2016), 12-120.21(A)(1) (2016), and -
2101(A)(1) (2016).4
4 We refer to the current version of any statutes unless the statutes
were amended after the proceedings below and such amendment would
affect the result of the appeal.
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KELLY M. v. KAREN K., PETER K., B.L.
Decision of the Court
DISCUSSION
¶9 Kelly argues the juvenile court erred in terminating her
parental rights for her failure to appear at the pretrial conference. However,
Kelly does not contend the court erred in finding that Kelly had abandoned
B.L. and that termination was in B.L.’s best interest. Accordingly, the only
issue before us is whether the court erred in proceeding with the severance
hearing in Kelly’s absence. We review the evidence in the light most
favorable to affirming the court’s decision and will reverse the decision for
an abuse of discretion if the decision was manifestly unreasonable, or based
on untenable grounds, or for untenable reasons. Lashonda M. v. Ariz. Dep’t.
of Econ. Sec., 210 Ariz. 77, 83, ¶ 19 (App. 2005) (quoting Quigley v. Tucson
City Court, 132 Ariz. 35, 37 (1982)).
¶10 Kelly argues that she had good cause for failing to appear at
the pretrial conference because (1) she attended all previous hearings, (2)
she telephoned her counsel at the close of the hearing to retrieve the
telephone number to call for the hearing, (3) she was not endorsed on the
minute entry from the initial hearing, and (4) the minute entry does not
reflect that Kelly was given a Form 3 by the juvenile court.5
¶11 If a court finds that a parent or guardian failed to appear at a
termination adjudication hearing without good cause, the court may then
proceed with the severance in the absence of the parent and terminate
parental rights based on the record and evidence presented to prove the
grounds for termination. Rule 66(D)(2). However, the parent or guardian
must have had notice of the hearing, must have been properly served, and
must have been informed of the consequences of failing to appear, so that a
failure to appear may constitute a waiver of rights and an admission to the
allegations in the motion for termination. Id. See also Christy A. v. Ariz.
Dep’t. of Econ. Sec., 217 Ariz. 299, 304, ¶¶ 13-14 (App. 2007) (holding that if
a party has proper notice and warning of a failure to appear, and does not
show good cause for failing to appear, the court may consider whether such
5 Kelly also argues, citing Roberto F. v. Dep’t. of Child Safety, 235 Ariz.
388, 395, ¶ 22 (App. 2014), that the juvenile court abused its discretion by
taking judicial shortcuts and failing to account for her parental rights to her
child when terminating those rights. Her reliance on Roberto F. is misplaced
because the case was vacated and overruled by the Arizona Supreme Court
in Roberto F. v. Dep’t. of Child Safety, 237 Ariz. 440 (2015).
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KELLY M. v. KAREN K., PETER K., B.L.
Decision of the Court
failure to appear constitutes a “waiver of rights” and may enter a judgment
against the parent).
¶12 The affidavit of service reflects Kelly had notice of the initial
hearing and was properly served. Specifically, she was served with: (1) the
order setting the initial hearing on petition for termination of parent-child
relationship, (2) the notice of the initial hearing, and (3) the petition for
termination of parent-child relationship. The notice of the initial hearing
informed Kelly that: “The failure of a parent to appear at the Initial Hearing,
the Pretrial Conference, [and] the Status Conference of the Termination
Adjudication Hearing may result in an adjudication terminating the parent-
child relationship of that parent. Failure to appear at [the hearings and
conferences] without good cause, may result in a finding that the [parent or
guardian] has waived legal rights and is deemed to have admitted the
allegations in the Petition. The hearings may go forward in the absence of
the [parent or guardian] and may result in the termination of parental rights
based upon the record and evidence presented.” The minute entry from
the initial hearing, which Kelly attended, contained a similar warning that
her failure to appear at any proceeding could result in her waiving her
rights and the court proceeding in her absence.6 That same minute entry
informed Kelly of the date and time of the pretrial conference and the
number she should use to call in for the conference.
¶13 At the pretrial conference, the juvenile court found that both
parents had prior notice of the conferences and both were advised that their
appearance was necessary.
¶14 The record shows, in accordance with Rule 66(D)(2), that
Kelly was properly served, had adequate notice of the pretrial conference,
and was advised as to the consequences if she failed to appear. Thus, unless
Kelly can show that she had good cause for her failure to appear at the
pretrial conference, the juvenile court did not abuse its discretion in
proceeding in her absence.
¶15 The juvenile court has discretion to determine whether the
facts of a case establish good cause. Ugalde v. Burke, 204 Ariz. 455, 458, ¶ 10
(App. 2003). To show good cause, the moving party must show that “(1)
6 The initial hearing was digitally recorded. Kelly has not provided
us a transcript from that hearing. Accordingly, we assume that whatever
occurred during that hearing supports the juvenile court’s decisions. Adrian
E. v. Ariz. Dep’t. of Econ. Sec., 215 Ariz. 96, 102, ¶ 6 (App. 2007). See also
ARCAP 11(c)(1).
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KELLY M. v. KAREN K., PETER K., B.L.
Decision of the Court
mistake, inadvertence, surprise or excusable neglect exists and (2) a
meritorious defense to the claims exists.” Richas v. Superior Court, 133 Ariz.
512, 514 (1982). Excusable neglect exists if a reasonably prudent person in
the same circumstances would act in the same way. Ulibarri v. Gerstenberger,
178 Ariz. 151, 163 (App. 1993). A meritorious defense must be established
only by facts and not through conclusions, assumptions, or affidavits based
on something other than personal knowledge. Richas, 133 Ariz. at 517.
¶16 Kelly argues that she had good cause for her failure to appear
because she was not endorsed on the minute entry from the initial
severance hearing containing the telephonic appearance phone number.
We disagree. Kelly was present at the initial severance hearing, where,
absent a transcript from that hearing, we assume the juvenile court told her
the dates, times, and phone number to call for the mediation and pretrial
conference. At the time of the pretrial conference, Kelly did not appear and
her counsel explained to the court that she did not know where Kelly was
and why she had not appeared. Thus, the court did not err in proceeding
with the hearing in her absence.
¶17 Moreover, while Kelly has not appealed from the order
denying her motion to set aside the default, that motion does not entitle
Kelly to relief from the severance judgment. At best, it shows Kelly
contacted her counsel after the hearing on the day of the pretrial conference
to ask for the phone number to call in. Kelly could have contacted her
counsel prior to the hearing if she had lost the call-in phone number. A
reasonable parent would be diligent in contacting her counsel. See Ulibarri,
178 Ariz. at 163. If a client willfully or negligently fails to keep in touch
with counsel, the client cannot complain of the court proceeding in her
absence. Hackin v. First Nat. Bank of Ariz., Phoenix, 5 Ariz. App. 379, 385
(App. 1967). Kelly gave no explanation for her failure to contact her counsel
ahead of time. Even if Kelly forgot the phone number to call for a telephonic
appearance, mere forgetfulness does not disturb the court’s judgment.
Coconino Pulp & Paper Co. v. Marvin, 83 Ariz. 117, 120 (1957). A failure to
contact counsel ahead of time, along with a failure to explain why,
constitutes unexplained neglect, which does not qualify as excusable
neglect. Richas, 133 Ariz. at 515.
¶18 Kelly also argues she had good cause for her failure to appear
because the minute entry from the initial severance hearing does not reflect
that the juvenile court gave her a Form 3. Pursuant to Rule 65(D)(3), at an
initial termination hearing, a court may provide the parent with a copy of
Form 3, request that the parent sign and return a copy of the Form, and note
on the record that the Form was provided. But there is no requirement for
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Decision of the Court
the court to give a Form 3. Monica C. v. Ariz. Dep’t. of Econ. Sec., 211 Ariz.
89, 95, ¶ 28 (App. 2005). If an appellant was aware of and took advantage
of the rights set forth in Form 3, any failure by the court to provide a Form
3 is not a fundamental error. Id. at ¶ 29. The failure to give a parent a Form
3, which explains the risks of nonappearance and of the court proceeding
in her absence for failure to appear without good cause, does not require us
to vacate the default, provided Kelly had notice of the hearing and the risk
of her failure to attend. The notice of the initial hearing on the petition to
sever parental rights and the order setting the initial hearing both gave
Kelly the same warnings contained in a Form 3. Moreover, because Kelly
has not provided us a transcript from the initial hearing, we assume the
court repeated those warnings to Kelly during that hearing. Supra, n.8.
¶19 Kelly argues she should not have been defaulted because she
attended all previous meetings, either in person or telephonically. Her
attendance at previous meetings has no bearing on her failure to attend the
pretrial conference.
¶20 Finally, Kelly has not asserted any meritorious defense. She
has not argued that she had a defense to the allegation of abandonment or
that severance was not in B.L.’s best interest. She has thus waived any
meritorious defense argument on appeal. Dawson v. Withcombe, 216 Ariz.
84, 105, ¶ 64 (App. 2007).
¶21 Karen asks this Court for attorney’s fees and costs on appeal.
When otherwise authorized by statute, rule, or contract, this Court has
discretion to award attorney’s fees and costs. ARCAP 21(c). Karen has not
cited any authority for her fees request. We exercise our discretion to deny
attorney’s fees. Pursuant to A.R.S. § 12-341, Karen may recover costs in an
amount to be determined following her compliance with Rule 21 of the
Arizona Rules of Civil Appellate Procedure.
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KELLY M. v. KAREN K., PETER K., B.L.
Decision of the Court
CONCLUSION
¶22 The juvenile court did not err in proceeding in Kelly’s
absence. Kelly has shown no good cause for her failure to appear at the
pretrial conference or a meritorious defense to the severance petition.
Accordingly, we affirm the severance judgment.
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