William P. v. Dcs ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
WILLIAM P., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, C.P., D.P., S.P., I.P,
Appellees.
No. 1 CA-JV 15-0397
FILED 8-25-2016
Appeal from the Superior Court in Maricopa County
No. JD31198
The Honorable Kristin C. Hoffman, Judge
AFFIRMED
COUNSEL
David W. Bell, Higley
By David W. Bell
Counsel for Appellant
Arizona Attorney General’s Office, Tucson
By Daniel R. Huff
Counsel for Appellee Department of Child Safety
WILLIAM P. v. DCS et al.
Decision of the Court
MEMORANDUM DECISION
Chief Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Patricia A. Orozco and Judge Samuel A. Thumma joined.
B R O W N, Chief Judge:
¶1 William P. (“Father”) appeals the juvenile court’s order
finding his children dependent as to him. Father argues the juvenile court
erred by failing to make specific findings of fact and abused its discretion
in denying his motion to set aside the dependency finding because he
showed good cause for failing to appear. Because Father failed to timely
appeal his challenge to the court’s dependency order, we lack jurisdiction
to consider his argument addressing the sufficiency of findings. As to the
court’s determination that no good cause existed for Father’s
nonattendance, Father has shown no abuse of discretion and we therefore
affirm.
BACKGROUND
¶2 Father and Elizabeth C. (“Mother”) are the biological parents
of C.P. (born in 1999), D.P. (born in 2000), S.P. (born in 2009), and I.P. (born
in 2013) (collectively, “the children”).1 In September 2015, the Department
of Child Safety (“DCS”) filed a dependency petition alleging the children
were being neglected and took them into temporary custody.
¶3 Father personally appeared at the initial dependency hearing
in September 2015, and contested the allegations and DCS’s temporary
physical custody of the children. During the hearing, the juvenile court set
dates for a temporary custody hearing, mediation, and pretrial conference.
Form 1, Notice to Parent in Dependency Action, which included the dates
and times for future court hearings, was read and provided to Father. The
form, which Father signed, stated in pertinent part:
You are required to attend all court hearings. If you cannot
attend a court hearing, you must prove to the Court that you
had good cause for not attending. If you fail to attend the Pre-
1 The children were also found dependent as to Mother, but she is not
a party to this appeal.
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WILLIAM P. v. DCS et al.
Decision of the Court
trial Conference, Settlement Conference, or Dependency
Adjudication Hearing without good cause, the Court may
determine that you have waived your legal rights and
admitted the allegations in the dependency petition. The
court may go forward with the Dependency Adjudication
Hearing in your absence and may rule that your child is
dependent based on the record and evidence presented.
¶4 At the temporary custody hearing, the juvenile court found
DCS’s continued temporary custody of the children was necessary to
prevent abuse or neglect and confirmed, in open court, the dates and times
for the mediation and pretrial conference. The court also ordered DCS to
provide transportation for Father.
¶5 Father attended the mediation on October 30, 2015. He signed
and received a copy of the mediation outcome report, which included the
date and time for the upcoming pretrial conference. Father failed to appear,
however, at the pretrial conference on November 3, 2015. His counsel told
the court he did not know why Father was absent, as Father was present at
the mediation and in court when it was scheduled, and was provided with
the mediation outcome report and multiple letters with the date and time.
In a signed minute entry order, the court found:
[F]ather had knowledge of this hearing. He was in open court
when it was set and was present at Mediation 10/30/15 when
this hearing was affirmed. Father has waived his presence by
failing to appear, and the Court will proceed in his absence.
[T]he allegations of the petition are true by a preponderance
of the evidence and the children are dependent as to Father.
¶6 Shortly thereafter, Father filed a motion to set aside the
dependency order, arguing he had good cause for missing the pretrial
conference. The juvenile court denied the motion and this timely appeal
followed.
DISCUSSION
A. Sufficiency of Findings
¶7 Father argues the juvenile court erred by failing to make
specific findings of fact in support of the finding of dependency. Although
not raised by DCS, this court has an independent duty to determine
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WILLIAM P. v. DCS et al.
Decision of the Court
whether it has jurisdiction to consider each argument raised in an appeal.
See Sorenson v. Farmers Ins. Co. of Ariz., 191 Ariz. 464, 465 (App. 1997).
¶8 Under the Arizona Rules of Procedure for the Juvenile Court,
an aggrieved party must file a notice of appeal within 15 days of entry of a
final order. Ariz. R.P. Juv. Ct. 103(A), 104(A). Here, the juvenile court
issued a signed minute entry order on November 12, 2015 finding the
children dependent as to Father. To timely appeal from that appealable
order, Father was required to file a notice of appeal by November 27, which
he did not do. Instead, he filed a motion to set aside the dependency order,
arguing he had good cause for failing to attend the pretrial conference.
Following the court’s denial of his motion to set aside, Father filed a timely
notice of appeal on December 7, appealing only from the “order, signed on
November 24.” Because Father did not timely appeal the signed November
12 dependency order, we lack jurisdiction to consider his argument raised
on appeal that the court’s findings were insufficient.
B. Good Cause for Failure to Appear
¶9 Father also argues the juvenile court abused its discretion by
failing to find good cause to set aside the dependency order where Father
failed to appear at the pretrial conference.
¶10 Parents in dependency actions are required to appear at all
hearings. Arizona Revised Statutes (“A.R.S.”) section 8-844(A). The
juvenile court may proceed in the parent’s absence and adjudicate the child
dependent based upon the record and evidence presented if the court finds
that a parent (1) failed to appear without good cause; (2) had notice of the
hearing; (3) was properly served; and (4) had been previously admonished
regarding the consequences of failing to appear, including a warning that
the hearing could go forward in the absence of the parent and that failure
to appear could constitute a waiver of rights and an admission of the
allegations contained in the dependency petition. Ariz. R.P. Juv. Ct.
54(C)(2).
¶11 We review a juvenile court’s decision on good cause for
nonappearance for an abuse of discretion and “will reverse only if the
juvenile court’s exercise of that discretion was 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 quotations
and citation omitted). To demonstrate good cause, a parent must show that:
(1) mistake, inadvertence, surprise or excusable neglect exists
and (2) a meritorious defense to the claims exists. Excusable
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WILLIAM P. v. DCS et al.
Decision of the Court
neglect exists if the neglect . . . is such as might be the act of a
reasonably prudent person in the same circumstances. A
meritorious defense must be established by facts and cannot
be established through conclusions, assumptions or affidavits
based on other than personal knowledge.
Christy A. v. Ariz. Dep’t of Econ. Sec., 217 Ariz. 299, 304–05, ¶ 16 (App. 2007)
(internal quotations and citations omitted).
¶12 Here, Father had ample notice of the pretrial conference date
and time and was admonished of the consequences for failure to attend
court hearings both in open court and on the Form 1. Father does not
dispute that he received adequate notice; he asserts he has good cause for
failing to attend because he “mixed the date and time.” Without citation to
authority, he contends this is a simple human error, meaning it constitutes
excusable neglect. We reject Father’s argument. Father was obligated to
attend, and the record reflects he was properly notified and informed of the
consequences for nonappearance, as well as given the opportunity to seek
transportation assistance from DCS. We cannot say that the juvenile court
abused its discretion in implicitly finding that Father’s absence was not the
result of excusable neglect.
¶13 Even assuming Father established excusable neglect, he has
failed to demonstrate a meritorious defense. In his motion to set aside,
Father argued he has a meritorious defense to DCS’s claims because he
denies all of the allegations in the dependency petition, except admitting
that six-year-old S.P. was not enrolled in school. On appeal, Father asserts
he has a meritorious defense because he “planned to vigorously defend and
refute the State’s claim” that the children were dependent. In both
instances, Father’s mere denials of the allegations of the petition do not
establish a meritorious defense. See Christy A., 217 Ariz. at 304–05, ¶ 16
(explaining that a meritorious defense must be established by facts rather
than mere conclusions or assumptions). Accordingly, Father failed to meet
his burden of demonstrating good cause for nonattendance at the pretrial
conference. 2
2 Father relies on FOC Financial Limited Partnership v. National City
Commercial Capital Corporation, 612 F. Supp. 2d 1080, 1082 (D. Ariz. 2009),
and the three good-cause factors enumerated by the Ninth Circuit. Father’s
reliance on this analysis is misplaced because the legal standards for
determining whether a parent has shown good cause for failure to appear
are, as noted above, set forth in existing opinions decided by this court.
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WILLIAM P. v. DCS et al.
Decision of the Court
CONCLUSION
¶14 For the foregoing reasons, we affirm the juvenile court’s order
denying Father’s motion finding the children dependent as to him.
Amy M. Wood • Clerk of the court
FILED: AA
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