In Re Dependency as to M.D. ( 2023 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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 DEPENDENCY AS TO M.D.
No. 1 CA-JV 23-0008
FILED 6-20-2023
Appeal from the Superior Court in Maricopa County
No. JD534954
The Honorable Ashley V. Halvorson, Judge
AFFIRMED
COUNSEL
Maricopa County Public Advocate, Mesa
By Suzanne W. Sanchez
Counsel for Appellant
Arizona Attorney General’s Office, Tucson
By Jennifer L. Thorson
Counsel for Appellee
Maricopa County Office of the Legal Advocate, Phoenix
By Tiffany Mastin
Counsel for Appellee M.D.
IN RE DEPENDENCY AS TO M.D.
Decision of the Court
MEMORANDUM DECISION
Judge Michael S. Catlett delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Michael J. Brown joined.
C A T L E T T, Judge:
¶1 Tony D. (“Father”) appeals the juvenile court’s order finding
M.D. (“Child”) dependent. The court made that finding after Father failed
to attend the dependency hearing. Father then moved to set aside the
dependency order, but the trial court denied the request. Father argues the
juvenile court erred in denying his motion to set aside because Father had
good cause for his absence and a meritorious defense to dependency.
Because the juvenile court did not abuse its discretion by concluding Father
failed to present a meritorious defense in his motion to set aside the
dependency order, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Father was referred to the Department of Child Safety
(“DCS”) for abusing Child. DCS, for example, obtained photographs
showing what appeared to be taser marks on Child’s back and upper front
side, as well as injuries to his arm, stomach, and lip. Child told a fellow
student that Father “abused him and makes his face purple and beats him
with a belt.” Father claimed he never abused Child or used a taser, but he
admitted hitting Child with a belt after Child ran away from home on
multiple occasions. Father denied leaving any marks on Child’s body but
could not explain the injuries in the photographs provided to DCS.
¶3 In addition to the physical injuries, DCS also documented
concerns about Child’s mental health. Child had been in counseling but
reverted to negative behaviors, including exhibiting abusive tactics towards
his mother and taking other actions resulting first in prolonged suspension
from school and later expulsion.
¶4 DCS advised Father his actions were abusive, but Father
disagreed. Father told DCS he would not alter his discipline methods and
intended to take Child to Mexico, where he thought his disciplinary
methods would be viewed more favorably. After Father’s initial assertions,
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IN RE DEPENDENCY AS TO M.D.
Decision of the Court
DCS documented that Father’s story changed and he began to deny he
would continue his discipline methods.
¶5 Before the initial dependency hearing, the juvenile court
notified Father that failure to attend the hearing could result in the court
“deem[ing] that you have waived your legal rights and admitted to the
allegations made in the petition.” On October 11, 2022, Father attended a
conference where the court rescheduled the dependency hearing for
December 6, 2022. Four days before the hearing, Father filed a motion to
continue and an alternative request to appear telephonically because he
would “be out of town.”
¶6 At the time of the hearing, the court had not ruled on Father’s
motion to continue, but Father was absent. When asked about Father’s
absence, his counsel informed the court that Father conveyed “he was going
to be out of town” and that Father had not mentioned any “health-related
issue.” His counsel told the court that Father was on a plane and would
attempt to call into the hearing after landing. The court denied Father’s
motion to continue, finding he failed to appear without good cause, and
held the hearing without him. After allowing DCS to enter exhibits into the
record, the court found Father admitted to using physical discipline that
left marks on Child and determined Child was dependent as to Father due
to abuse.
¶7 On December 19, 2022, Father filed a “motion to reconsider”
relying upon Arizona Rule of Procedure for Juvenile Court 318(c), which
governs motions to set aside a final order. Father argued he had good cause
for his absence because he was on a plane and called into the hearing upon
landing, but the hearing had concluded. The entirety of Father’s attempt to
assert a meritorious defense to dependency went as follows:
Father believes there is enough information throughout this
case to establish a child’s behaviors finding. The child’s
behavior has continued while in the Department’s care. From
the time of removal, the child has moved placements several
times, and has pending delinquency charges. The child’s
probation officer called into the December 6, 2022,
Dependency Adjudication.
¶8 On January 4, 2023, the juvenile court denied Father’s motion.
The court found Father had not shown good cause for his absence because
he did not dispute receiving proper notice of the hearing, and the court had
notified him of his rights. The court also found Father’s “conclusory and
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IN RE DEPENDENCY AS TO M.D.
Decision of the Court
vague argument” regarding being “unable to parent the child due to the
child’s behavior, which he claims is evidenced by placement disruptions
and delinquency charges” did not qualify as a meritorious defense to abuse.
¶9 Father timely appealed. We have jurisdiction under A.R.S. §
8-235(A).
DISCUSSION
¶10 Father argues the juvenile court abused its discretion by
denying his motion to set aside because he had a meritorious defense and
showed good cause. We review a denial of a motion to set aside for an
abuse of discretion. Christy A. v. Ariz. Dep’t of Econ. Sec., 217 Ariz. 299, 305
¶ 19 (App. 2007). For a motion to set aside to be granted, a party must
demonstrate good cause and a meritorious defense. Trisha A. v. Dep’t of
Child Safety, 247 Ariz. 84, 89 ¶ 19 (2019); see also Ariz. R.P. Juv. Ct. 318(c). A
meritorious defense is a minimal burden. Trisha A., 247 Ariz. at 90 ¶ 26.
The requirement of a meritorious defense includes (1) some legal
justification, (2) substantial evidence that is in the record, and (3) a
justifiable basis to set aside the judgment. Gonzalez v. Nguyen, 243 Ariz. 531,
534 ¶¶ 12–13 (2018); see also Richas v. Super. Ct., 133 Ariz. 512, 514 (1982).
¶11 We start (and end) by considering whether Father presented
a meritorious defense. Dependency must be proven by a preponderance of
the evidence. See A.R.S. § 8-844(C)(1). The court must make its dependency
finding “based upon the circumstances existing at the time of the
adjudication hearing.” Shella H. v. Dep’t of Child Safety, 239 Ariz. 47, 50 ¶ 12
(App. 2016). We review a court’s dependency finding for an abuse of
discretion. Louis C. v. Dep’t of Child Safety, 237 Ariz. 484, 488 ¶ 12 (App.
2015). For both the motion to set aside and the dependency determination,
we review the evidence in the light most favorable to sustaining the court’s
finding and affirm unless there is no reasonable evidence to support it.
Willie G. v. Ariz. Dep’t of Econ. Sec., 211 Ariz. 231, 235 ¶ 21 (App. 2005); Ezell
v. Quon, 224 Ariz. 532, 534 ¶ 2 (App. 2010).
¶12 A child is dependent if the “home is unfit by reason of abuse,
neglect, cruelty or depravity by a parent, a guardian or any other person
having custody or care of the child.” A.R.S. § 8-201(15)(a)(iii). Abuse is
defined as “the infliction or allowing of physical injury, impairment of
bodily function or disfigurement or the infliction of or allowing another
person to cause serious emotional damage as evidenced by severe anxiety,
depression, withdrawal or untoward aggressive behavior[.]” A.R.S. § 8-
201(2).
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IN RE DEPENDENCY AS TO M.D.
Decision of the Court
¶13 Father argues the juvenile court was required to set aside the
dependency finding because he asserted a meritorious defense that his
discipline was not abuse but a proportional response to Child’s behavior.
Father’s argument in his motion to the juvenile court was even less specific.
Father asserted a “child’s behaviors finding” defense but did not define this
term or provide any legal citation to support a “child’s behavior” exception
to the statutory definition of abuse. The record more than sufficiently
supports a finding that Child was dependent as to Father because of abuse.
The record also supports the trial court’s conclusion that Father’s attempt
to place blame for that abuse on Child is not a valid defense. In fact, this
Court has stated that we will “not hesitate to affirm a finding of
dependency” when a parent “den[ies] that they are responsible for past
abuse” because “such denial of responsibility supports a finding” that the
parent is not “presently willing to or capable of exercising proper and
effective parental care and control.” Pima Juv. Dependency Action No. 96290,
162 Ariz. 601, 604 (App. 1990). Accordingly, Father did not present a
meritorious defense, and the juvenile court did not abuse its discretion in
refusing to set aside the dependency order.
¶14 Because we affirm the trial court’s order based on a lack of a
meritorious defense, we need not address whether Father established good
cause for missing the dependency hearing. Father’s absence from the
dependency hearing permitted the court to “find that the parent has waived
the parent’s legal rights and is deemed to have admitted the allegations of
the petition by the failure to appear.” A.R.S. § 8-844(F).1 The court found
“the allegations of the [dependency] petition are true by a preponderance
of the evidence,” and thus we also affirm the dependency finding.
1 Before conducting a dependency hearing with an absent parent, the
juvenile court is required to make a finding that the absent parent had
notice, was warned about the consequences of failing to appear, and failed
to demonstrate good cause for the absence. Ariz. R.P. Juv. Ct. 338(e). Father
does not argue that any failure on the court’s part to make such a finding
justifies reversal, and thus he has waived the argument. See Nelson v. Rice,
198 Ariz. 563, 567 ¶ 11 n.3 (App. 2000) (stating that a party waives an
argument by failing to raise it in the opening brief on appeal). Regardless,
the record demonstrates Father was aware of the hearing date and had been
notified of the consequences of failing to appear.
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IN RE DEPENDENCY AS TO M.D.
Decision of the Court
CONCLUSION
¶15 We affirm the juvenile court’s dependency finding and
subsequent denial of Father’s motion to set aside the dependency order.
AMY M. WOOD • Clerk of the Court
FILED: AA
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