Opinion
No. 1 CA-JV 13-0239
01-30-2014
ANIBAL H., Appellant, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, J.H., Appellees.
Maricopa County Public Advocate's Office, Mesa By Suzanne W. Sanchez Counsel for Appellant Arizona Attorney General's Office, Phoenix By Eric Devany Counsel for Appellee Arizona Department of Economic Security
NOTICE: NOT FOR PUBLICATION.
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS
AUTHORIZED. ARIZ. R. SUP. CT. 111(c).
Appeal from the Superior Court in Maricopa County
No. JD509599
The Honorable David J. Palmer, Judge
AFFIRMED AS CORRECTED
COUNSEL
Maricopa County Public Advocate's Office, Mesa
By Suzanne W. Sanchez
Counsel for Appellant
Arizona Attorney General's Office, Phoenix
By Eric Devany
Counsel for Appellee Arizona Department of Economic Security
MEMORANDUM DECISION
Judge Patricia K. Norris delivered the decision of the Court, in which Presiding Judge Donn Kessler and Judge Maurice Portley joined. NORRIS, Judge:
¶1 Anibal H. appeals from the juvenile court's order terminating his parental rights to his minor child. On appeal, Anibal argues he established good cause for his failure to appear at the termination adjudication hearing. He further argues termination was not in his child's best interests. For the following reasons, we disagree with both arguments and affirm the termination order as corrected.
¶2 After Anibal failed to appear at the termination adjudication hearing, he advised the court at a subsequent hearing that he had missed the adjudication hearing because he had "misunderstood the time of the hearing." The juvenile court did not abuse its discretion in rejecting Anibal's reason for missing the adjudication hearing. See Adrian E. v. Ariz. Dep't of Econ. Sec., 215 Ariz. 96, 101, ¶ 15, 158 P.3d 225, 230 (App. 2007) (finding of good cause reviewed for abuse of discretion).
¶3 To establish good cause for a failure to appear, the parent must show mistake, inadvertence, surprise, or excusable neglect and a meritorious defense to the claims. Christy A. v. Ariz. Dep't of Econ. Sec., 217 Ariz. 299, 304, ¶ 16, 173 P.3d 463, 468 (App. 2007) (citations omitted). "Excusable neglect exists if the neglect or inadvertence 'is such as might be the act of a reasonably prudent person in the same circumstances.'" Id. (quoting Ulibarri v. Gerstenberger, 178 Ariz. 151, 163, 871 P.2d 698, 710 (App. 1993)).
¶4 Here, Anibal's excuse failed to constitute excusable neglect. He was present at the pretrial conference when the juvenile court set the date and time for the adjudication hearing, and he told his counsel he would be present at the hearing. Earlier in the case, the juvenile court had given Anibal a Form III, which explained that he needed to attend all court hearings and any failure to appear could result in a finding that he had waived his legal rights, admitted the allegations in the motion or petition for termination, and could result in termination of his parental rights based upon the record and evidence presented. See Ariz. R.P. Juv. Ct. Form III. Given that Anibal had notice of the date and time of the hearing, was informed of the importance of attending all hearings, and provided what could only be characterized as a meager excuse for his failure to appear, he failed to establish excusable neglect for his nonappearance.
¶5 Not only did Anibal fail to establish excusable neglect, he also failed to show he had a meritorious defense to termination under Arizona Revised Statutes ("A.R.S.") section 8-533(B)(3) (Supp. 2013) (chronic substance abuse). See Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 280, ¶ 3, 53 P.3d 203, 205 (App. 2002) (citations omitted) (if clear and convincing evidence supports any one of the statutory grounds, appellate court need not address the others). The Arizona Department of Economic Security ("ADES") presented evidence Anibal had multiple drug-related convictions; had self-reported an extensive history with drug abuse and was only able to remain sober when incarcerated; had been diagnosed with opiate dependency in remission due to a controlled setting (incarceration); and had failed multiple urinalyses after being released from prison.
We note the juvenile court's order terminated Anibal's parental rights pursuant to A.R.S. §§ 8-531(1) (2007), 8-533(B)(1) (abandonment), 8-533(B)(4) (felony incarceration), and 8-533(B)(3). At the adjudication hearing, however, the court granted the Arizona Department of Economic Security's motion to withdraw its request that the court also terminate Anibal's parental rights under § 8-533(B)(4). We therefore correct the termination order to delete the reference to A.R.S. § 8-533(B)(4).
¶6 Finally, Anibal argues ADES failed to prove termination was in his child's best interests because it had not identified a particular adoption plan for the child. Because reasonable evidence supported the juvenile court's best interest finding, we disagree. See Ariz. Dep't of Econ. Sec. v. Matthew L., 223 Ariz. 547, 549, ¶ 7, 225 P.3d 604, 606 (App. 2010) (appellate court will not set aside juvenile court's determination unless reasonable evidence does not support its findings).
¶7 The juvenile court found that termination was in the child's best interests because "it would provide the child with a stable and permanent home free of drugs and with actively involved parents. A termination of these parental rights would further the plan of adoption." The child's case worker testified the child was adoptable even though an adoptive home had not yet been identified. See Maricopa Cnty. Juv. Action No. JS-501904, 180 Ariz. 348, 352, 884 P.2d 234, 238 (App. 1994) ("[A]DES need not show that it has a specific adoption plan before terminating a parent's rights; [A]DES must show that the children are adoptable."), disagreed with on other grounds by Ariz. Dep't of Econ. Sec. v. Armstrong, 181 Ariz. 469, 891 P.2d 936 (App. 1994). The case worker also testified the child would benefit from termination because the child would have parents who would be present and actively involved, a drug-free environment, permanency, stability of being in a home and not in the foster care system, and consistent caregivers. See Maricopa Cnty. Juv. Action No. JS-500274, 167 Ariz. 1, 5, 804 P.2d 730, 734 (1990) (citations omitted) (determination of child's best interests must include "how the child would benefit from a severance or be harmed by the continuation of the relationship"). Based on this evidence and given Anibal's history of chronic substance abuse, see supra ¶ 5, reasonable evidence supported the juvenile court's finding that termination was in the child's best interests.
¶8 For the foregoing reasons, we affirm the juvenile court's order terminating Anibal's parental rights as corrected.