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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

K ELLY M.

, Appellant

,

v.

K AREN K., PETER K

. , B.L., Appellees

. 1

N o . 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

C ounsel for Appellee s

1 We have amended t he 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 Ju dge Patricia A. Orozco joined.

K E S S L E R

, Judge:

¶1 K elly M. ( “Kelly ”) appeals the juvenile court’s judgment severing her r ights to her child, B.L. Kelly argues that the court erred when it terminated her parental rights for her failure to appear for a p retrial

c onference and that the court should not have proceeded in her absence. For the following reasons, we affirm the judgment terminating Kelly ’s

pare ntal 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

Feb ruary 2013 at the request of Child Protective Services

. 3 Karen , on behalf

of herself and Peter, filed petition s 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 c ourt set a pretrial confere nce for Jan uary 20, 2016

, and set a m ediation hearing for Kelly regarding dependency for Jan uary 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 parent al 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, 51 st 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. T he juvenile court proceeded in their absence.

¶5 At the pre trial conference, Karen testified that she ha d taken

care of B.L. since Feb ruary 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 gua rdianship or legal custody “ would not provide a permanent st able 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 Kell y 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 C ourt 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 p retrial c onference. 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 r eview 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 C our t , 132 Ariz. 35, 37 (1982) )

.

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

the p retrial c onference because (1) she attended all previous hearing s , (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 g iven a Form 3 by the juvenile court

. 5

¶11 If a court finds that a parent or guardian fail ed 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 r ights based on the record and evidence presented to prove the

groun ds 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 ( A pp. 2007) (h olding 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 , 23 5 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 misplac ed 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

rela tionship, (2) the notice of the initial hearing, and (3) the petition for termination of parent

- child relationship. T he notice of the initial hearing

informed Kelly that : “The failure of a parent to appear at the Initial H earing,
the Pretrial Conference, [and] the Status Conference of the Termination Adjudication Hearing may result in an adjudication terminating the parent

child relationship of that parent. Failure to appear at [the hearings and conferences] without good cause, may result in a finding tha t 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 r ecord 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, t he juvenile court found that both parents had prior notice of the conferences and both were advised that their

appearance was necessary.

¶14 T he record shows, in accordance with Rule 66(D)(2), that Kelly was properly serv ed, had adequate notice of the p retrial c onference, and was advised as to the consequences if she failed to appear. T hus, unless Kelly can show that she ha d good cause fo r her failure to appear at the

p retrial c onference, 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 , 2 04 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. Accordin gly, 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 exi s ts 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

, 1 78 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 ha d 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 t hat s he 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 th e 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 1 63

. 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 Na t. 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 w h y, constitutes unexplained neglec t, which does not qualify as excusable neglect. Richas , 133 Ariz. at 515

.

¶18 Kelly also argues she ha d 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. P ursuant to Rule 65(D)(3), at an

i nitial t ermination h earing, 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 req uirement forKELLY 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 risk s of nonappearance and of the court proceeding in her absence for failure to appear without good cause

, does not require us

to vacate the defaul t

, provided Kelly had notice of the hearing and the risk

of her failure to attend

. T he 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 warning s to Kelly during that hearing. Supra , n.8.

¶19 Kelly argues she should not have been defaulted because she attended all previous m eetings, either in person or telephonically. Her attendance at previous meetings has no bearing on her failure to attend th e pretrial conference.

¶20 Finally, Kelly has not asserted any meritorious defense . She has not argued that she had a defense to the a llegation 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 ask s this C ourt for attorney’s fees and costs on a ppeal

. When otherwise authorized by statute, rule

, or contract, this C ourt 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. P ursuant 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 ha s 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

.