Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Tracy M. v. Department of Child Safety

Court of Appeals of Arizona, First Division

October 1, 2015

TRACY M., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, N.E., Appellees.

Not for Publication – Rule 111(c), Rules of the Arizona Supreme Court

Appeal from the Superior Court in Maricopa County No. JD13199 The Honorable Sally Schneider Duncan, Judge

COUNSEL Czop Law Firm, PLLC, Higley By Steven Czop Counsel for Appellant Arizona Attorney

General's Office, Phoenix By Michael Valenzuela Counsel for Appellee

Judge Andrew W. Gould delivered the decision of the Court, in which Presiding Judge Donn Kessler and Judge Patricia K. Norris joined.

MEMORANDUM DECISION

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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.