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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

KELLY M., Appellant,

v.

KAREN K., PETER K., B.L., Appellees.

1

No. 1 CA-JV 16-0022

Appeal from the Superior Court in Maricopa County

No. JS517828

The Honorable Shellie F. Smith, Judge Pro Tempore

AFFIRMED

COUNSEL

The Stavris Law Firm, PLLC, Scottsdale

By Christopher Stavris

Counsel for Appellant

Crider Law, PLLC, Mesa

By Bradley J. Crider

Counsel for Appellees

 

1 We have amended the caption because the juvenile court vested 

legal custody and financial responsibility of B.L. in Karen and appointed 

Peter and Karen as guardians. All parties shall use the amended caption in 

papers filed in this appeal.
KELLY M. v. KAREN K., PETER K., B.L.

Decision of the Court

2

MEMORANDUM DECISION

Judge Donn Kessler delivered the decision of the Court, in which Presiding 

Judge Diane M. Johnsen and Judge Patricia A. Orozco joined.

K E S S L E R, Judge:

¶1 Kelly M. (“Kelly”) appeals the juvenile court’s judgment 

severing her rights to her child, B.L. Kelly argues that the court erred when 

it terminated her parental rights for her failure to appear for a pretrial 

conference and that the court should not have proceeded in her absence.

For the following reasons, we affirm the judgment terminating Kelly’s 

parental rights.

FACTS AND PROCEDURAL BACKGROUND

¶2 Kelly and K.L. (“Father”) are the biological parents of B.L., 

born in 2008.2 Grandparents Peter and Karen took custody of B.L. in 

February 2013 at the request of Child Protective Services.

3 Karen, on behalf 

of herself and Peter, filed petitions for termination of parental rights

between B.L. and Father and Kelly on the basis of abandonment. 

¶3 Kelly appeared and contested the severance filing at the initial 

hearing. The juvenile court set a pretrial conference for January 20, 2016,

and set a mediation hearing for Kelly regarding dependency for January 13, 

2016. In the initial hearing minute entry, the court confirmed that Kelly

could appear by telephone at the pretrial conference, the date and time of 

the conference, and the telephone number for her to call in. The minute 

entry also confirmed that if a party failed to appear for the pretrial 

conference the failure could be deemed an admission to all the facts in the 

 

2 Father, whose parental rights were terminated, is not a party to this 

appeal.

3 The division of Child Protective Services of the Arizona Department 

of Economic Security was subsequently renamed and reorganized as the 

Department of Child Safety. See S.B. 1001, 51st Leg., 2d Spec. Sess. (Ariz.

2014). 
KELLY M. v. KAREN K., PETER K., B.L.

Decision of the Court

3

petition and the court could proceed to an adjudication of the ultimate 

issues. 

¶4 Kelly and Father failed to appear at the January 20 pretrial 

conference. Kelly’s counsel appeared and stated she did not know why 

Kelly failed to appear. The juvenile court proceeded in their absence. 

¶5 At the pretrial conference, Karen testified that she had taken 

care of B.L. since February 2013. She also testified that Kelly moved to 

California sometime in 2014, without telling Karen and without going to 

see B.L. before she left. Karen also testified that Kelly had contact with B.L.

until July 2014, but did not physically see B.L. from July 2014 to July 2015. 

She also testified B.L. has since considered Karen and Peter as his parents.

Karen further testified she and Peter always allowed Kelly to contact B.L.,

but they limited the contact to specific times at the request of B.L.’s 

counselor. She also testified that some form of guardianship or legal 

custody “would not provide a permanent stable relationship for [B.L.].” 

Karen thought that severance was in the child’s best interest. 

¶6 The juvenile court found by clear and convincing evidence 

that both Father and Kelly had abandoned B.L. The court also found it was

in B.L.’s best interest to terminate both parent-child relationships to further 

Karen and Peter’s plans of adoption. Accordingly, the court terminated 

Father and Kelly’s parental rights, and vested legal custody and financial 

responsibility for B.L. in Karen and appointed Peter and Karen as guardians 

for B.L. 

¶7 Kelly timely appealed from the severance judgment. See Ariz. 

R.P. Juv. Ct. (“Rule”) 104(A). While the appeal was pending, Kelly filed a 

motion for reconsideration to set aside the judgment. Without any attached 

affidavit, Kelly’s counsel asserted that after the severance hearing Kelly had 

called the counsel to determine what number she should use to call in and 

telephonically appear. The juvenile court denied the motion and affirmed 

the severance. 

¶8 This Court has jurisdiction pursuant to Arizona Revised 

Statutes (“A.R.S.”) sections 8-235(A) (2016), 12-120.21(A)(1) (2016), and -

2101(A)(1) (2016).

4 

 

4 We refer to the current version of any statutes unless the statutes 

were amended after the proceedings below and such amendment would 

affect the result of the appeal.
KELLY M. v. KAREN K., PETER K., B.L.

Decision of the Court

4

DISCUSSION

¶9 Kelly argues the juvenile court erred in terminating her 

parental rights for her failure to appear at the pretrial conference. However, 

Kelly does not contend the court erred in finding that Kelly had abandoned 

B.L. and that termination was in B.L.’s best interest. Accordingly, the only 

issue before us is whether the court erred in proceeding with the severance 

hearing in Kelly’s absence. We review the evidence in the light most 

favorable to affirming the court’s decision and will reverse the decision for 

an abuse of discretion if the decision was manifestly unreasonable, or based 

on untenable grounds, or for untenable reasons. Lashonda M. v. Ariz. Dep’t. 

of Econ. Sec., 210 Ariz. 77, 83, ¶ 19 (App. 2005) (quoting Quigley v. Tucson 

City Court, 132 Ariz. 35, 37 (1982)).

¶10 Kelly argues that she had good cause for failing to appear at 

the pretrial conference because (1) she attended all previous hearings, (2) 

she telephoned her counsel at the close of the hearing to retrieve the 

telephone number to call for the hearing, (3) she was not endorsed on the 

minute entry from the initial hearing, and (4) the minute entry does not 

reflect that Kelly was given a Form 3 by the juvenile court.

5

¶11 If a court finds that a parent or guardian failed to appear at a 

termination adjudication hearing without good cause, the court may then 

proceed with the severance in the absence of the parent and terminate 

parental rights based on the record and evidence presented to prove the 

grounds for termination. Rule 66(D)(2). However, the parent or guardian 

must have had notice of the hearing, must have been properly served, and 

must have been informed of the consequences of failing to appear, so that a 

failure to appear may constitute a waiver of rights and an admission to the 

allegations in the motion for termination. Id. See also Christy A. v. Ariz. 

Dep’t. of Econ. Sec., 217 Ariz. 299, 304, ¶¶ 13-14 (App. 2007) (holding that if 

a party has proper notice and warning of a failure to appear, and does not 

show good cause for failing to appear, the court may consider whether such 

 

5 Kelly also argues, citing Roberto F. v. Dep’t. of Child Safety, 235 Ariz. 

388, 395, ¶ 22 (App. 2014), that the juvenile court abused its discretion by 

taking judicial shortcuts and failing to account for her parental rights to her 

child when terminating those rights. Her reliance on Roberto F. is misplaced

because the case was vacated and overruled by the Arizona Supreme Court 

in Roberto F. v. Dep’t. of Child Safety, 237 Ariz. 440 (2015). 
KELLY M. v. KAREN K., PETER K., B.L.

Decision of the Court

5

failure to appear constitutes a “waiver of rights” and may enter a judgment

against the parent).

¶12 The affidavit of service reflects Kelly had notice of the initial 

hearing and was properly served. Specifically, she was served with: (1) the 

order setting the initial hearing on petition for termination of parent-child 

relationship, (2) the notice of the initial hearing, and (3) the petition for 

termination of parent-child relationship. The notice of the initial hearing 

informed Kelly that: “The failure of a parent to appear at the Initial Hearing, 

the Pretrial Conference, [and] the Status Conference of the Termination 

Adjudication Hearing may result in an adjudication terminating the parentchild relationship of that parent. Failure to appear at [the hearings and 

conferences] without good cause, may result in a finding that the [parent or 

guardian] has waived legal rights and is deemed to have admitted the 

allegations in the Petition. The hearings may go forward in the absence of 

the [parent or guardian] and may result in the termination of parental rights 

based upon the record and evidence presented.” The minute entry from 

the initial hearing, which Kelly attended, contained a similar warning that 

her failure to appear at any proceeding could result in her waiving her 

rights and the court proceeding in her absence.6 That same minute entry 

informed Kelly of the date and time of the pretrial conference and the 

number she should use to call in for the conference. 

¶13 At the pretrial conference, the juvenile court found that both

parents had prior notice of the conferences and both were advised that their 

appearance was necessary. 

¶14 The record shows, in accordance with Rule 66(D)(2), that 

Kelly was properly served, had adequate notice of the pretrial conference, 

and was advised as to the consequences if she failed to appear. Thus, unless 

Kelly can show that she had good cause for her failure to appear at the 

pretrial conference, the juvenile court did not abuse its discretion in 

proceeding in her absence. 

¶15 The juvenile court has discretion to determine whether the 

facts of a case establish good cause. Ugalde v. Burke, 204 Ariz. 455, 458, ¶ 10 

(App. 2003). To show good cause, the moving party must show that “(1) 

 

6 The initial hearing was digitally recorded. Kelly has not provided 

us a transcript from that hearing. Accordingly, we assume that whatever 

occurred during that hearing supports the juvenile court’s decisions. Adrian 

E. v. Ariz. Dep’t. of Econ. Sec., 215 Ariz. 96, 102, ¶ 6 (App. 2007). See also

ARCAP 11(c)(1). 
KELLY M. v. KAREN K., PETER K., B.L.

Decision of the Court

6

mistake, inadvertence, surprise or excusable neglect exists and (2) a 

meritorious defense to the claims exists.” Richas v. Superior Court, 133 Ariz. 

512, 514 (1982). Excusable neglect exists if a reasonably prudent person in 

the same circumstances would act in the same way. Ulibarri v. Gerstenberger, 

178 Ariz. 151, 163 (App. 1993). A meritorious defense must be established 

only by facts and not through conclusions, assumptions, or affidavits based 

on something other than personal knowledge. Richas, 133 Ariz. at 517. 

¶16 Kelly argues that she had good cause for her failure to appear 

because she was not endorsed on the minute entry from the initial 

severance hearing containing the telephonic appearance phone number.

We disagree. Kelly was present at the initial severance hearing, where, 

absent a transcript from that hearing, we assume the juvenile court told her 

the dates, times, and phone number to call for the mediation and pretrial 

conference. At the time of the pretrial conference, Kelly did not appear and 

her counsel explained to the court that she did not know where Kelly was 

and why she had not appeared. Thus, the court did not err in proceeding 

with the hearing in her absence. 

¶17 Moreover, while Kelly has not appealed from the order 

denying her motion to set aside the default, that motion does not entitle 

Kelly to relief from the severance judgment. At best, it shows Kelly

contacted her counsel after the hearing on the day of the pretrial conference

to ask for the phone number to call in. Kelly could have contacted her 

counsel prior to the hearing if she had lost the call-in phone number. A 

reasonable parent would be diligent in contacting her counsel. See Ulibarri, 

178 Ariz. at 163. If a client willfully or negligently fails to keep in touch 

with counsel, the client cannot complain of the court proceeding in her 

absence. Hackin v. First Nat. Bank of Ariz., Phoenix, 5 Ariz. App. 379, 385 

(App. 1967). Kelly gave no explanation for her failure to contact her counsel 

ahead of time. Even if Kelly forgot the phone number to call for a telephonic 

appearance, mere forgetfulness does not disturb the court’s judgment.

Coconino Pulp & Paper Co. v. Marvin, 83 Ariz. 117, 120 (1957). A failure to 

contact counsel ahead of time, along with a failure to explain why, 

constitutes unexplained neglect, which does not qualify as excusable 

neglect. Richas, 133 Ariz. at 515. 

¶18 Kelly also argues she had good cause for her failure to appear 

because the minute entry from the initial severance hearing does not reflect 

that the juvenile court gave her a Form 3. Pursuant to Rule 65(D)(3), at an 

initial termination hearing, a court may provide the parent with a copy of 

Form 3, request that the parent sign and return a copy of the Form, and note 

on the record that the Form was provided. But there is no requirement for 
KELLY M. v. KAREN K., PETER K., B.L.

Decision of the Court

7

the court to give a Form 3. Monica C. v. Ariz. Dep’t. of Econ. Sec., 211 Ariz. 

89, 95, ¶ 28 (App. 2005). If an appellant was aware of and took advantage 

of the rights set forth in Form 3, any failure by the court to provide a Form 

3 is not a fundamental error. Id. at ¶ 29. The failure to give a parent a Form 

3, which explains the risks of nonappearance and of the court proceeding 

in her absence for failure to appear without good cause, does not require us 

to vacate the default, provided Kelly had notice of the hearing and the risk 

of her failure to attend. The notice of the initial hearing on the petition to 

sever parental rights and the order setting the initial hearing both gave 

Kelly the same warnings contained in a Form 3. Moreover, because Kelly 

has not provided us a transcript from the initial hearing, we assume the 

court repeated those warnings to Kelly during that hearing. Supra, n.8.

¶19 Kelly argues she should not have been defaulted because she 

attended all previous meetings, either in person or telephonically. Her 

attendance at previous meetings has no bearing on her failure to attend the 

pretrial conference.

¶20 Finally, Kelly has not asserted any meritorious defense. She 

has not argued that she had a defense to the allegation of abandonment or 

that severance was not in B.L.’s best interest. She has thus waived any 

meritorious defense argument on appeal. Dawson v. Withcombe, 216 Ariz. 

84, 105, ¶ 64 (App. 2007).

¶21 Karen asks this Court for attorney’s fees and costs on appeal. 

When otherwise authorized by statute, rule, or contract, this Court has 

discretion to award attorney’s fees and costs. ARCAP 21(c). Karen has not 

cited any authority for her fees request. We exercise our discretion to deny 

attorney’s fees. Pursuant to A.R.S. § 12-341, Karen may recover costs in an 

amount to be determined following her compliance with Rule 21 of the 

Arizona Rules of Civil Appellate Procedure.
KELLY M. v. KAREN K., PETER K., B.L.

Decision of the Court

8

CONCLUSION

¶22 The juvenile court did not err in proceeding in Kelly’s 

absence. Kelly has shown no good cause for her failure to appear at the 

pretrial conference or a meritorious defense to the severance petition. 

Accordingly, we affirm the severance judgment.