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Allen C. v. Department of Child Safety, H.C.

Court of Appeals of Arizona, First Division

October 6, 2015

ALLEN C, Appellant,
v.
DEPARTMENT OF CHILD SAFETY, H.C., A.C., Appellees.

Not for Publication – Rule 111(c), Rules of the Arizona Supreme Court

Appeal from the Superior Court in Maricopa County No. JD 23431 The Honorable Linda H. Miles, Judge.

John L. Popilek, P.C., Scottsdale By John L. Popilek Counsel for Appellant Arizona Attorney

General's Office, Phoenix By JoAnn Falgout Counsel for Appellee Department of Child Safety

Presiding Judge Margaret H. Downie delivered the decision of the Court, in which Judge Patricia A. Orozco and Judge Maurice Portley joined.

MEMORANDUM DECISION

DOWNIE, Judge:

¶1 Allen C. ("Father") appeals an order terminating his parental rights to H.C. and A.C. (collectively, "the children"). For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY[1]

¶2 The Department of Child Safety ("DCS") assumed custody of the children in March 2013 because their parents were incarcerated. After DCS filed a dependency petition, Father waived his right to contest the petition's allegations, and the superior court found the children dependent.

¶3 DCS filed a motion to terminate Father's parental rights, alleging abandonment under Arizona Revised Statutes ("A.R.S.") § 8-533(B)(1) and out-of-home placement for fifteen months or longer pursuant to A.R.S. § 8-533(B)(8)(c). Father contested the severance motion. He later failed to appear for mediation but appeared for an October 7, 2014 hearing. At the October 7 hearing, the court set a pretrial conference for November 4, 2014.

¶4 Father failed to appear for the November 4 pretrial conference. The court found no good cause for his absence, and Father was deemed to have admitted the factual allegations in the termination motion. The court proceeded with a severance hearing at which the case manager testified and other evidence was presented. At the conclusion of the hearing, the court ruled that DCS had proven both alleged grounds for termination and found that severance was in the children's best interests.

¶5 Father filed a motion to set aside, asserting that he missed the November 4 hearing because he "was in the emergency room due to a serious injury on his hand." The court set a hearing for January 9, 2015 to address Father's motion. Father thereafter filed an amended motion to set aside, stating, inter alia: "Father now reports that he was admitted to the hospital on 11/5/14 the day after his hearing and not on 11/4/14 as previously reported." (Emphasis removed.)

¶6 At the January 9 hearing, the court denied the motion to set aside without prejudice and gave Father 30 days to file a new motion "supported by an Affidavit or other evidence warranting an Evidentiary Hearing." Father subsequently filed a "Request for Evidentiary Hearing to Set Aside Ruling, " reasserting his reasons for missing the November 4 hearing and submitting hospital records.

¶7 Father failed to appear for a status hearing in February, but he appeared and testified at an evidentiary hearing regarding his motion to set aside on March 31, 2015. At the conclusion of that hearing, the court stated on the record that Father's testimony was not credible, denied the motion to set aside, and entered an order terminating Father's parental rights. Father timely appealed. ...


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