Landell M. v. Dcs, N.M.
1 CA-JV 17-0180
| Ariz. Ct. App. | Oct 26, 2017Background
- Father (Landell M.) is the biological parent of N.M.; DCS took custody in April 2016 and the child was adjudicated dependent as to Father in June 2016.
- Father had not seen the child since infancy and first contacted DCS in late January 2017; DCS moved to terminate Father’s parental rights for abandonment in February 2017.
- Father appeared at the initial severance hearing, retained counsel, and the hearing was continued to March 20, 2017; DCS served Father at his residence and gave explicit notice that failure to appear could result in waiver and termination.
- Father did not appear (personally or by phone) at the March 20 severance hearing; the court found he had notice and proceeded in his absence, terminating parental rights on abandonment grounds and finding termination in the child’s best interests.
- Father moved to set aside the termination, claiming excusable neglect because a court-ordered restriction after his incarceration prevented him from accessing his residence and documents; the superior court denied the motion and this appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Father had "good cause" for failing to appear at the severance hearing | Father: excusable neglect — release from jail plus court order prevented access to residence and court paperwork, so he could not attend or contact counsel/court | DCS: Father had proper notice, made at least one call to DCS, was reminded of the hearing and offered transport, and took no reasonable steps to participate | Court: No good cause; Father failed to show excusable neglect or a meritorious defense; waiver and admission permitted; severance affirmed |
| Whether trial court abused discretion in denying motion to set aside the termination order | Father: the restriction and resulting inability to appear warranted setting aside under mistake/inadvertence/excusable neglect and a meritorious defense | DCS: No evidence of reasonable attempts to notify court/counsel or to otherwise participate; no meritorious defense shown | Court: No abuse of discretion; motion properly denied |
Key Cases Cited
- Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246 (2000) (parental custody is a fundamental but not absolute right)
- Christy A. v. Ariz. Dep’t of Econ. Sec., 217 Ariz. 299 (2007) (standards for setting aside severance for mistake/inadvertence/excusable neglect and requirement of meritorious defense)
- Richas v. Superior Court (Motorola, Inc.), 133 Ariz. 512 (1982) (meritorious defense must be established by facts, not conclusions)
- Brenda D. v. Dep’t of Child Safety, 242 Ariz. 150 (2017) (juvenile court retains discretion to assess what constitutes good cause for failure to appear)
- Adrian E. v. Ariz. Dep’t of Econ. Sec., 215 Ariz. 96 (App. 2007) (review of discretionary determinations of good cause for failure to appear)
- Atchison, Topeka & Santa Fe Ry. Co. v. Parr, 96 Ariz. 13 (1964) (motions not ruled on at time of judgment are deemed denied by operation of law)
Bottom line
The appellate court concluded Father was properly served, had notice of consequences, failed to show excusable neglect or a meritorious defense for his absence, and the superior court did not abuse its discretion in denying relief or in terminating parental rights; the termination was affirmed.