NOTICE: NOT FOR PUBLICATION.

UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT

AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

RUSTICA D., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, R.S., R.W., Appellees.

No. 1 CA-JV 14-0136

Appeal from the Maricopa County Superior Court

No. JD23174

The Honorable Joan Sinclair, Judge

AFFIRMED

COUNSEL

Maricopa County Office of the Public Advocate, Mesa

By Suzanne Sanchez

Counsel for Appellant 

Arizona Attorney General’s Office, Mesa

By Nicholas Chapman-Hushek

Counsel for Appellee Department of Child Safety
RUSTICA D. v. DCS, et al.

Decision of the Court

2

MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which 

Presiding Judge Patricia K. Norris and Judge John C. Gemmill joined.

W I N T H R O P, Judge:

¶1 Rustica D. (“Mother”) appeals the juvenile court’s order

terminating her parental rights to R.S. and R.W. (collectively, “the 

children”). Mother alleges (1) the juvenile court erred when it found 

Mother in default because she established good cause for her nonappearance at a pre-trial hearing; (2) Child Protective Services (“CPS”)

failed to make diligent efforts to reunify Mother with the children; and (3) 

the juvenile court abused its discretion when it determined that termination 

of the parent-child relationship was in the children’s best interest.

1 For the 

following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Mother is the biological parent of R.S. and R.W. The natural 

father of R.S. is deceased. Eddie W. is R.W.’s biological father. 2 In January 

2013, Mother placed the children with a paternal aunt, stating she could no 

longer care for them. The police were contacted the following day when 

Mother appeared at the paternal aunt’s home acting erratically. Following 

this incident, Mother was placed in a psychiatric facility for two weeks, 

where she was diagnosed with Bipolar Disorder and Post-Traumatic Stress 

Disorder. ADES offered Mother a forty-five day safety plan to ensure that 

her mental health issues were being addressed, but Mother refused to sign, 

as she felt she no longer needed follow-up treatment. 

 

1 In May 2014, CPS was removed as an entity within the Arizona 

Department of Economic Security (“ADES”) and replaced by the 

Department of Child Safety (“DCS”), an entity outside of ADES. In its 

answering brief, DCS refers to the parties as they existed at the time of the 

proceedings, and so do we.

2 Eddie W. has not appealed the subsequent severance of his parental 

rights and is not a party to this case.
RUSTICA D. v. DCS, et al.

Decision of the Court

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¶3 ADES filed a dependency petition on January 31, 2013, 

alleging Mother neglected the children due to her mental health issues. In 

March 2013, Mother failed to attend a pre-trial conference hearing, and the 

juvenile court found Mother waived her rights. Accordingly, the court 

conducted the dependency hearing in Mother’s absence, heard testimony 

from a CPS case manager, and found the children dependent as to Mother. 

At that time, the case plan was family reunification concurrent with 

severance and adoption. ADES offered Mother several services including 

urinalysis testing, counseling, a referral for a psychiatric evaluation, and 

parent aide services. Mother was also offered weekly visits with the 

children.

¶4 In November 2013, the court changed the case plan to 

severance and adoption. ADES filed a motion for termination of the parentchild relationship in January 2014, alleging three specific grounds. First, 

ADES asserted Mother was unable to discharge her parental 

responsibilities because of mental illness and there were reasonable 

grounds to believe the condition will continue for a prolonged 

indeterminate period. See Ariz. Rev. Stat. (“A.R.S.”) § 8-533(B)(3).3 Second, 

ADES alleged the children had been in an out-of-home placement for a 

cumulative total period of nine months or longer, pursuant to a court order. 

See id. at § 8-533(B)(8)(a). Last, ADES alleged that R.W., who was then

under three years old, had been in an out-of-home placement for a 

cumulative total period of six months or longer, pursuant to a court order. 

See id. at § 8-533(B)(8)(b). ADES also alleged the best interests of the 

children were served by terminating the parent-child relationship. See id. 

at § 8-533(B). 

¶5 Mother appeared at a scheduled mediation regarding the 

termination of her parental rights on March 20, 2014, but the parties failed 

to reach an agreement. When Mother failed to appear at a scheduled pretrial conference six days later, the court found Mother had waived her 

rights and conducted the termination hearing in her absence. A CPS case 

manager testified regarding the services provided by ADES, indicating that 

Mother had successfully completed the work with the parent aide, but 

failed to contact the counseling services for six months, causing the referral 

to expire. The CPS case manager stated Mother had been notified that CPS

had recently renewed Mother’s counseling referral. The CPS case manager 

further testified that the psychiatric evaluation recommended Mother 

 

3 We cite the current version of the statutes if no revisions material to 

our decision have occurred since the relevant dates.
RUSTICA D. v. DCS, et al.

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receive individual counseling and that Mother’s mental issues “place[d] a 

child or children in her care at risk.” After considering the testimony and 

evidence presented at the hearing, in an unsigned minute entry, the court 

terminated the parent-child relationship between Mother and the children. 

¶6 Mother filed a motion for reconsideration and to set aside the 

court’s finding of default and the order of termination, alleging she had 

mistakenly believed the hearing was scheduled in April instead of March. 

She did not submit an affidavit explaining why she was of that belief, nor 

identifying any evidence that she had been misled in that regard by ADES, 

CPS, her counsel, or the juvenile court. Mother also did not submit any 

affidavit or offer of proof as to the testimony or other evidence she intended 

to submit had the termination hearing not proceeded in her absence. The 

court denied Mother’s motion, finding Mother did not have good cause for 

failing to appear at the pre-trial conference. On May 6, 2014, the juvenile 

court issued an order terminating the parent-child relationship between 

Mother and the children. Mother filed a timely notice of appeal. We have 

appellate jurisdiction pursuant to the Arizona Constitution, Article 6, 

Section 9; A.R.S. § 8-235(A); and Rule 103(A) of the Arizona Rules of 

Procedure for the Juvenile Court.

ANALYSIS

¶7 Mother presents three issues for review: (1) whether the 

juvenile court erred when it found Mother in default because she allegedly 

established good cause for her non-appearance; (2) whether CPS failed to 

make diligent efforts to reunify Mother with the children; and (3) whether

the juvenile court abused its discretion when it determined that termination 

of the parent-child relationship was in the children’s best interest.

I. The juvenile court did not abuse its discretion when it found Mother in 

default.4

 

4 ADES asserts Mother is essentially contesting the juvenile court’s 

decision to deny her motion to reconsider and set aside the default finding. 

ADES claims this court lacks jurisdiction to decide this issue because 

Mother did not appeal this ruling within 15 days. See Ariz. R.P. Juv. Ct. 

104(A). We disagree. Mother filed her motion for reconsideration on April 

2, 2014. The juvenile court denied her motion on April 8, 2014. The final 

order terminating Mother’s parental rights was entered on May 6, 2014, and 

Mother timely appealed. An appellate court “can review other 

intermediate orders involving the merits of the action and necessarily 
RUSTICA D. v. DCS, et al.

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¶8 We review a finding of good cause for failure to appear for an 

abuse of discretion and will reverse the juvenile court’s finding “only if the 

juvenile court’s exercise of that discretion was manifestly unreasonable.”

Adrian E. v. Ariz. Dep’t of Econ. Sec., 215 Ariz. 96, 101, ¶ 15, 158 P.3d 225, 230 

(App. 2007) (internal citations and punctuation omitted). “In order 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. v. Dep’t of Econ. Sec., 217 Ariz. 299, 304, ¶ 16, 173

P.3d 463, 468 (App. 2007) (citation omitted). “Excusable neglect exists if the 

neglect or inadvertence ‘is such as might be the act of a reasonably prudent 

person in the same circumstances.’” Id. at 304, ¶ 16, 173 P.3d at 468. A 

meritorious defense is a good faith basis to challenge the petitioner’s 

allegation that termination is in the best interests of the child. Id. at 304 n.11, 

¶ 15, 173 P.3d at 468 n.11. 

¶9 In both her motion to reconsider and this appeal, Mother 

alleges she failed to appear at the pre-trial hearing because she

misunderstood the court date. In addition, Mother claims to have a 

meritorious defense, stating simply that she planned to contest ADES’ 

contention that termination of the parent-child relationship was in the 

children’s best interests. On the record before the juvenile court, we cannot 

say the court’s exercise of discretion in denying the motion was manifestly 

unreasonable. While Mother’s counsel claimed Mother’s absence during 

the hearing was abnormal as “she’s usually here for everything,” the CPS 

case manager avowed to the juvenile court that he had been in contact with 

Mother and she was “well aware of this court date.” Despite the assertions 

of Mother’s counsel, this was not the first time Mother failed to appear at a 

hearing and thus waived her rights in this matter. Moreover, Mother 

signed a Form III in February 2014, which informed Mother that failing to 

attend a hearing without good cause could allow the court to determine 

Mother waived her legal rights. Mother attended a report and review 

hearing on February 5, 2014, where the parties were informed that the next 

pre-trial conference would be held on March 26, and Mother was again 

provided with another Form III. Furthermore, Mother’s conclusory 

 

affecting the judgment, and all orders and rulings assigned as error when 

it has jurisdiction over an appeal from a final judgment.” Hydroculture, Inc. 

v. Coopers & Lybrand, 174 Ariz. 277, 284, 848 P.2d 856, 863 (App. 1992) 

(internal punctuation omitted); see Reid v. Reid, 20 Ariz. App. 220, 221, 511 

P.2d 664, 665 (1973) (stating that an unsigned minute entry is not a 

judgment, thus a court may amend any rulings contained therein before or 

at the final judgment); see also A.R.S. § 12-2102(A). Accordingly, this issue 

is properly raised before this court.
RUSTICA D. v. DCS, et al.

Decision of the Court

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statement that she intended to contest ADES’ allegations as a meritorious 

defense is insufficient, as it provides no further details or facts to 

substantiate Mother’s claim. See Richas v. Superior Court, 133 Ariz. 512, 517, 

652 P.2d 1035, 1040 (1982) (stating “[a] meritorious defense must be 

established by facts and cannot be established through conclusions, 

assumptions or affidavits based on other than personal knowledge”). 

Accordingly, we find no abuse of discretion.

II. Mother did not assert CPS failed to make diligent efforts to reunify 

Mother with the children in the juvenile court; thus, Mother has waived 

this issue on appeal.

¶10 Mother offers few examples of CPS’s alleged failure to make 

diligent reunification efforts. Additionally, this issue was not presented to 

the juvenile court, but is raised for the first time on appeal. In her opening 

brief, Mother states CPS referred her to a counseling agency but it was 

“difficult” for both Mother and the CPS case manager to contact the agency. 

Because Mother could not reach the counseling agency, the referral expired, 

and the CPS case manager had to renew the referral before Mother could 

attempt to contact the agency. Mother alleges because she was informed of 

the renewal only six days before the hearing where her parental rights were 

terminated, CPS did not provide her the time and opportunity to partake 

in the counseling.

¶11 CPS’s obligation to make diligent efforts for reunification 

does not relieve “a parent from the need to raise a timely objection if the 

parent believes services are inadequate.” Shawanee S. v. Ariz. Dep’t of Econ. 

Sec., 234 Ariz. 174, 178, ¶¶ 12-13, 319 P.3d 236, 240 (App. 2014). A challenge 

to ADES’ efforts for reunification must first be raised in the juvenile court 

and can be done during any number of proceedings, including a 

dependency hearing, periodic review hearings, and a termination hearing. 

Id. at ¶¶ 13-14. “[W]hen the juvenile court record reflects that ADES has 

been ordered to provide specific services in furtherance of the case plan, 

and the court finds that ADES has made reasonable efforts to provide such 

services . . . a parent who does not object in the juvenile court is precluded 

from challenging that finding on appeal.” Id. at 179, ¶ 16, 319 P.3d at 241 

(internal citations omitted). 

¶12 On the record before this court, which includes several 

minute entries reflecting various hearings over the course of a year, we 

conclude Mother has waived her argument that ADES failed to make 

reasonable efforts for reunification. First, the juvenile court specifically 

found ADES made reasonable efforts at reunification. Next, the record 
RUSTICA D. v. DCS, et al.

Decision of the Court

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shows Mother never objected to ADES’ efforts for reunification or to the 

services offered to her in the juvenile court. Mother’s only asserted 

complaint on appeal is that it was “difficult” to reach the counseling 

services; however, Mother’s failure to contact the service agency, which led 

to the expiration of ADES’ referral, does not reflect adversely on ADES’ 

efforts to provide meaningful reunification services. It is not ADES’ 

responsibility to ensure Mother participates in the services she is offered. 

See Maricopa Cnty. Juv. Action No. JS-501904, 180 Ariz. 348, 353, 884 P.2d 234, 

239 (App. 1994) (stating ADES is not required to ensure that a parent 

engages in the services offered to that parent). In addition, it is imperative 

Mother raise these concerns with the juvenile court, which allows the court 

the opportunity to address these concerns to ensure ADES is meeting its 

obligations. Shawanee S., 234 Ariz. at 179, ¶ 18, 319 P.3d at 241. Because

Mother failed to address this issue in the juvenile court, Mother has waived 

this issue on appeal.

III. Termination of the parent-child relationship between Mother and the 

children serves the best interests of the children.

¶13 Mother asserts the juvenile court erred in finding the best 

interests of the children were served by terminating her parental rights. An 

abuse of discretion occurs when the record is “devoid of competent 

evidence to support the decision of the [juvenile] court.” Fought v. Fought, 

94 Ariz. 187, 188, 382 P.2d 667, 668 (1963). This court will not substitute our 

opinion for that of the juvenile court unless the court’s findings are clearly 

erroneous. Pima Cnty. Dependency Action No. 93511, 154 Ariz. 543, 545, 744 

P.2d 455, 457 (App. 1987) (citation omitted). While a parent’s failure to 

appear may be deemed an admission of the allegations set forth in the 

motion to terminate, it is the duty of the juvenile court “to determine 

whether the grounds for termination have been proven by the record and 

evidence.” Manuel M. v. Ariz. Dep’t of Econ. Sec., 218 Ariz. 205, 213, ¶ 28, 181 

P.3d 1126, 1134 (App. 2008) (internal citation omitted). The juvenile court 

may proceed when a parent fails to appear but is represented by counsel as 

the parent’s rights are protected by counsel’s presence and participation. 

Christy A., 217 Ariz. at 307, ¶ 25, 173 P.3d at 471.

¶14 Despite Mother’s absence at the pre-trial hearing, Mother’s 

counsel actively participated in the hearing, including reviewing ADES’ 

exhibits and cross-examining ADES’ only witness. After reviewing the 

evidence and testimony taken during the hearing, the juvenile court found 

two grounds for termination of the parent-child relationship between 

Mother and the children and that termination served the best interests of 

the children because “[t]he children are adoptable and adoption will 
RUSTICA D. v. DCS, et al.

Decision of the Court

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provide them with permanency and stability.”5 On appeal, Mother asserts 

she intended to present evidence, “such as her own testimony” to 

demonstrate termination of her parental rights was not in the best interests 

of the children. Contrary to Mother’s assertion, nothing in the record 

indicates the juvenile court abused its discretion in terminating Mother’s 

parental rights. Mother’s counsel had the opportunity to object to ADES’ 

exhibits, to cross-examine ADES’ witness during the hearing, and to offer 

evidence and arguments to the court in support of Mother’s position as it 

related to the “best interests” issue. Moreover, Mother points to no other 

evidence other than her potential testimony in general that could have 

impacted the juvenile court’s decision. Accordingly, the juvenile court did 

not abuse its discretion in finding that termination of the parent-child 

relationship was in the children’s best interests.

CONCLUSION

¶15 For the foregoing reasons, we affirm.

 

5 The juvenile court found three grounds for terminating the parentchild relationship as to R.W. only.