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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

LEON M., Appellant, 

v.

DEPARTMENT OF CHILD SAFETY, J.M., A.M., M.M., Appellees. 

No. 1 CA-JV 17-0497 

Appeal from the Superior Court in Maricopa County

No. JD34142 

The Honorable Joseph C. Welty, Judge

AFFIRMED

COUNSEL

Denise L. Carroll, Esq., Scottsdale

By Denise Lynn Carroll

Counsel for Appellant

Arizona Attorney General’s Office, Phoenix

By Amber E. Pershon

Counsel for Appellees

FILED 5-10-2018
LEON M. v. DCS, et al.

Decision of the Court

2 

MEMORANDUM DECISION

Judge David D. Weinzweig delivered the decision of the Court, in which 

Presiding Judge Michael J. Brown and Judge Maria Elena Cruz joined.

W E I N Z W E I G, Judge:

¶1 This appeal concerns a juvenile dependency hearing. Leon 

M. appeals the superior court’s order declaring his three children 

dependent. We affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Leon M. (“Father”) and Shamika B. (“Mother”) are the 

biological parents of three minor children, J.M., A.M. and M.M. Father 

lived in Wisconsin. His children meanwhile lived in Arizona with their 

Mother and four half-siblings until April of 2017, when one of the halfsiblings died of asphyxiation. The Department of Child Safety (“DCS”)

investigated and concluded that J.M., A.M. and M.M. were unsafe and 

Father had made “minimal to no efforts to support and communicate with 

the children and [had] not seen the children in an extended period of time.” 

DCS seized temporary custody of the children and filed a dependency 

petition concerning both parents, including against Father based on neglect 

due to abandonment.1 

¶3 Father was served with the dependency petition on April 24, 

2017. The superior court held an initial hearing on May 25, 2017, and a 

pretrial conference on June 11, 2017. Father was permitted to telephonically 

participate in both. The court held a status conference on August 1, 2017. 

Again, Father appeared telephonically. His counsel appeared in person all 

three times. 

¶4 The court then ordered a dependency hearing for October 25, 

2017, to determine whether J.M., A.M. and M.M. were dependent under 

A.R.S. § 8-201(15)(a). Unlike before, the court directed Father to personally 

appear at the hearing. 

¶5 Six days before the hearing, Father asked the court for 

permission to appear telephonically, stating he was “financially unable to 

 

1 Mother did not contest the allegations, however, and is not a party 

to this appeal.
LEON M. v. DCS, et al.

Decision of the Court

3 

afford to come to Arizona for the trial.” DCS objected. The court denied 

Father’s motion. 

¶6 The dependency hearing arrived. Father’s counsel appeared, 

but Father did not. He instead called the court, was patched into the 

courtroom and again asked for permission to appear telephonically. The 

superior court again refused, reiterating that his motion to telephonically 

appear had been denied and directing “you may hang up now.” Father 

hung up. His counsel did not object. 

¶7 The hearing proceeded with testimony from one witness, the 

DCS case manager, who indicated that Father had never cared for or 

financially supported J.M., A.M. and M.M. She further testified that Father 

maintained only occasional telephonic contact with them. 

¶8 At one point, DCS’s counsel asked the case manager to 

confirm that Father knew his children had been removed and placed in 

foster care since April 2017. Father’s counsel objected, arguing the case 

manager could only speculate about Father’s knowledge. The court did not 

entertain the objection and instead ruled that Father’s counsel was “not 

entitled to make objections on [Father’s] behalf” because Father had waived 

his presence at the hearing. Father’s counsel never objected and remained 

silent for the remainder of the examination. He introduced no evidence and 

examined no witnesses. The court ultimately found the children were 

dependent and Father had abandoned them.2 

¶9 Father timely appealed. We have jurisdiction pursuant to 

Ariz. Const. art. VI, § 9 and A.R.S. §§ 8-235(A), 12-2101(A)(1). 

DISCUSSION

A. Denial of Permission to Telephonically Appear. 

¶10 Father first argues the superior court erred when it denied his 

motion to appear telephonically. We review for a clear abuse of discretion. 

Willie G. v. Ariz. Dep’t of Econ. Sec., 211 Ariz. 231, 234, ¶ 13 (App. 2005). 

¶11 Arizona courts “may permit” parents to appear via 

telephone for a dependency hearing, but they’re not required to do so. Ariz. 

R.P. Juv. Ct. 42; Willie G., 211 Ariz. at 234, ¶ 14 (superior court has “the 

authority, but not an obligation, to allow the parents to appear by telephone 

 

2 Father had not disclosed any evidence that he would present at the 

hearing under Ariz. R.P. Juv. Ct. 44(A). 
LEON M. v. DCS, et al.

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4 

rather than in person”). The determination of what constitutes good cause 

for a parent’s inability to appear is “largely discretionary.” Willie G., 211 

Ariz. at 234, ¶ 13. 

¶12 We find no clear abuse of discretion. The dependency hearing

is an important moment in the judicial process to assess and determine a 

child’s best interest. The court reasonably found that it needed to 

personally observe Father at the dependency hearing to reach a meaningful 

and informed decision on his credibility and the children’s future. Until 

that point, the superior court had allowed Father to telephonically 

participate.

¶13 We recognize that travel might have posed a financial burden

on Father, but that burden is relative to and cannot be divorced from the 

hearing’s purpose and consequence. In addition, Father provided no 

documents or information for the superior court to assess his financial need. 

Given the gravity of a dependency proceeding, it was reasonable for the 

court to expect and require more from Father than his mere plea of poverty. 

With actual evidence of financial distress, the court could have weighed 

Father’s precise burden against the important benefits arising from Father’s 

physical appearance and participation at an evidentiary proceeding to 

determine his children’s future. 

¶14 What is more, Father had nearly three months to research and 

arrange any means or method of transportation. He also had several 

months to at least inform the court of his financial concern. Yet, he waited 

until six days before the hearing to file his motion to appear telephonically. 

B. Due Process Arguments. 

¶15 Father next maintains the superior court deprived him of due 

process when it denied his motion to appear telephonically. But due 

process only required that Father receive notice reasonably calculated to 

inform him of an action. See Monica C. v. Ariz. Dep’t. of Econ. Sec., 211 Ariz. 

89, 92, ¶ 16 (App. 2005). Father received notice of the dependency hearing 

almost three months in advance. 

¶16 Father likewise argues he was denied due process because the 

superior court “should have allowed [him] to remain at his trial.” Neither 

Father nor his counsel objected, however, meaning the issue was not 

preserved for appeal. We thus review for fundamental error. Father must 

demonstrate the superior court erred, the error was fundamental and 

resulted in prejudice. Brenda D. v. Dep’t of Child Safety, 243 Ariz. 437, 447-

48, ¶ 38 (2018). An error is fundamental if it deprived the aggrieved party 
LEON M. v. DCS, et al.

Decision of the Court

5 

of a fair trial. Monica C., 211 Ariz. at 94, ¶ 24. And to demonstrate prejudice, 

Father must show that but for the error, the court could have reached a 

different result. Brenda D., 243 Ariz. at 447-48, ¶ 38. 

¶17 Father has not shown fundamental error. Even if the court

erred, Father never demonstrated prejudice arising from the error. He has 

not shown, for instance, the court would have heard different facts or could 

have reached a different conclusion. Father had few, if any, options to alter 

the outcome. He never disclosed evidence or indicated his intent to offer 

evidence at the hearing. And having not physically appeared at the 

hearing, Father could not contest DCS’s factual allegations. Ariz. R.P. Juv. 

Ct. 55(D)(2). At bottom, Father has not shown and cannot show the result 

would have been different if he had been granted permission to listen to the 

hearing from Wisconsin over the telephone. 

¶18 Finally, Father argues the superior court denied him due 

process by ruling his counsel could not “make objections on his behalf.” 

That was error. In Brenda D., our supreme court recognized that even when 

a parent fails to appear for a termination hearing “the absent parent does 

not waive the right to counsel at the hearing.” Brenda D., 243 Ariz. at 446, 

¶ 30. The Court expressly held “that the absent parent’s counsel has a right 

to fully participate in the hearing on the parent’s behalf, including a right 

to cross-examine the state’s witnesses, object to proffered evidence, and 

present witnesses or other evidence.” Id. Though Brenda D. involved a 

termination hearing, its reasoning and analysis apply with equal force in a 

dependency hearing. Both hearings implicate the same fundamental 

interest of parents to raise their children without government interference. 

Compare Jade K. v. Loraine K., 240 Ariz. 414, 416, ¶ 6 (App. 2016) (describing 

fundamental interest of parents in termination proceeding), with Carolina H. 

v. Ariz. Dep’t of Econ. Sec., 232 Ariz. 569, 571, ¶¶ 6-7 (App. 2013) (describing 

interest of parents in dependency proceeding). 

¶19 The error was not fundamental, however, because Father has 

not shown it resulted in the admission of any improper testimony or 

inadmissible evidence. Nor has Father pointed us to any testimony he 

might have elicited to change the superior court’s ruling. 
LEON M. v. DCS, et al.

Decision of the Court

6 

CONCLUSION

¶20 The superior court did not abuse its discretion by denying 

Father’s motion to appear telephonically and Father has not demonstrated 

fundamental error on his due process claims. We affirm.