Opinion
No. 1 CA-JV 15-0119
10-01-2015
TRACY M., Appellant, v. DEPARTMENT OF CHILD SAFETY, N.E., Appellees.
COUNSEL Czop Law Firm, PLLC, Higley By Steven Czop Counsel for Appellant Arizona Attorney General's Office, Phoenix By Michael Valenzuela Counsel for Appellee
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
Appeal from the Superior Court in Maricopa County
No. JD13199
The Honorable Sally Schneider Duncan, Judge
AFFIRMED
COUNSEL
Czop Law Firm, PLLC, Higley
By Steven Czop
Counsel for Appellant
Arizona Attorney General's Office, Phoenix
By Michael Valenzuela
Counsel for Appellee
MEMORANDUM DECISION
Judge Andrew W. Gould delivered the decision of the Court, in which Presiding Judge Donn Kessler and Judge Patricia K. Norris joined.
GOULD, Judge:
¶1 Mother appeals from the juvenile court's judgment severing her parental rights to child based upon Mother's failure to appear at the initial severance hearing. For the following reasons, we affirm.
DISCUSSION
I. Jurisdiction
¶2 Although the issue was not raised by the Department of Child Safety, we must first determine whether this Court has jurisdiction over Mother's appeal. Specifically, we must determine whether Mother's appeal was timely filed. We review the question of jurisdiction de novo. Francisco F. v. Ariz. Dep't of Econ. Sec., 228 Ariz. 379, 381, ¶ 6 (App. 2011).
¶3 A notice of appeal from a severance judgment shall be filed "no later than 15 days after the final order is filed." Ariz. R.P. Juv. Ct. 104; Ariz. Rev. Stat. ("A.R.S.") section 8-235. "[T]he juvenile court may excuse the untimely filing [of a notice of appeal] upon motion made after the expiration of the specified period" "where the failure to timely file was the result of excusable neglect." Ariz. R.P. Juv. Ct. 108(B). The determination of whether excusable neglect exists is within the juvenile court's discretion. See Christy A. v. Ariz. Dep't of Econ. Sec., 217 Ariz. 299, 305, ¶¶ 17, 19 (App. 2007).
¶4 Here, the juvenile court signed and entered its judgment terminating Mother's parental rights on March 11, 2015. Mother filed a motion to set aside the judgment on March 18, 2015, but the court did not set oral argument on the motion until April 2, or seven days after the deadline to file an appeal. As a result, on March 25 Mother asked the court to extend the appeal deadline. The State objected, arguing that leave to file an untimely appeal could only be granted upon a showing of excusable neglect, which Mother had not shown. On April 1, after the appeal deadline had expired, Mother filed another motion, this time with the presiding judge of the juvenile court, essentially requesting the court excuse her
untimely appeal. On April 8, the court signed an order finding "good cause" to extend the deadline to file a notice of appeal to April 30, 2015. Mother filed her notice of appeal on April 13, 2015.
¶5 The juvenile court acted within its discretion in extending Mother's deadline to file an appeal. Mother's second motion requesting leave to file an untimely appeal complied with the requirements of Rule 108(B). And although the juvenile court's order does not expressly state Mother's failure to timely file an appeal was the result of "excusable neglect" as required by Rule 108(B), we conclude that such a finding was necessarily implied within the court's finding of "good cause." See Roberto F. v. Ariz. Dept. of Econ. Sec., 232 Ariz. 45, 52-53, ¶ 34 (App. 2013) (stating an appellate court will presume the trial court found every fact necessary to sustain its ruling and will affirm if any reasonable construction of the evidence supports the trial court's decision).
¶6 Additionally, we recognize that Mother's notice of appeal only appeals from the juvenile court's order terminating her parental rights; the notice does not appeal from the court's denial of her motion to set aside the judgment. However, we have jurisdiction to consider Mother's claim that the court erred in denying her motion to set aside in addition to any claim of error she may have regarding the judgment itself. Hanen v. Willis, 8 Ariz. App. 175, 178 (1968) ("By a timely appeal from the judgment the plaintiff may allege as error the order of the court in denying the motion to set aside or vacate the judgment appealed from.").
II. Good Cause
¶7 Mother argues her right to due process was denied when the juvenile court did not find good cause for her absence from the hearing and did not set aside the resulting judgment. We disagree.
¶8 A parent's failure to appear at the initial termination hearing "may constitute a waiver of rights and an admission to the allegations contained in the termination motion" if the court finds (1) there was no good cause for the failure to appear and (2) the parent "had notice of the hearing, was properly served pursuant to Rule 64 and had been previously admonished regarding the consequences of failure to appear." Ariz. R.P. Juv. Ct. 65(C)(6)(c). In such an instance, "the court may proceed with the adjudication of termination based upon the record and evidence presented." Id.
¶9 We review the juvenile court's determination regarding good cause for an abuse of discretion; we 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) (quoting Lashonda M. v. Ariz. Dep't of Econ. Sec., 210 Ariz. 77, 83, ¶ 19 (App. 2005)); see also Christy A., 217 Ariz. at 305, ¶ 19 (reviewing court's determination of good cause for abuse of discretion).
¶10 To show good cause, "the moving party must show that (1) mistake, inadvertence, surprise or excusable neglect exists, and (2) a meritorious defense to the claims exists." Christy A., 217 Ariz. at 304, ¶ 16. Excusable neglect is action that would be taken by "a reasonably prudent person in the same circumstances." Id. "'A meritorious defense must be established by facts and cannot be established through conclusions, assumptions or affidavits based on other than personal knowledge.'" Id. at 304-05, ¶ 16 (quoting Ulibarri v. Gerstenberger, 178 Ariz. 151, 163 (App. 1993)).
¶11 We have not been provided transcripts for the oral argument on Mother's motion to set aside. As a result, we presume the content of the transcripts "support the court's findings and conclusions." Adrian E., 215 Ariz. at 102, ¶ 21.
¶12 The record that has been provided to us shows the juvenile court acted within its discretion. Mother signed a copy of the Form 3, establishing that she received actual notice of the initial severance hearing date, and that her failure to attend the hearing, absent good cause shown, could result in a finding she had waived her rights and admitted the grounds alleged in the petition. Mother's explanation that she mis-calendared the hearing date and she lost the Form 3 with the correct hearing date does not constitute mistake or excusable neglect.
¶13 Furthermore, in her motion to set aside the judgment Mother did not contend she had a meritorious defense to the severance petition. Accordingly, we find no abuse of discretion in the court's denial of Mother's motion.
CONCLUSION
¶14 For the reasons above, we affirm.