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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

BRITTANY R., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, X.R., E.R., I.R., Appellees.

No. 1 CA-JV 18-0411

Appeal from the Superior Court in Maricopa County

No. JD23594

The Honorable M. Scott McCoy, Judge

AFFIRMED

COUNSEL

The Stavris Law Firm, PLLC, Scottsdale

By Christopher Stavris

Counsel for Appellant

Arizona Attorney General’s Office, Tucson

By Michelle R. Nimmo

Counsel for Appellee Department of Child Safety

FILED 5-21-2019
BRITTANY R. v. DCS, et al.

Decision of the Court

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MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which 

Presiding Judge Jennifer B. Campbell and Judge James B. Morse Jr. joined.

C R U Z, Judge:

¶1 Brittany R. (“Mother”) appeals the juvenile court’s order 

denying her motion to set aside the court’s finding that she lacked good 

cause for failing to appear at her initial severance hearing. For the following 

reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 In January 2017, the Department of Child Safety (“DCS”)

removed X.R., E.R., and I.R. (the “children”) from Mother’s care after 

Mother admitted methamphetamine use; and DCS offered reunification 

services. That month, Mother signed Form I, “Notice to Parent in 

Dependency Action,” requiring her to attend all court hearings and that the 

failure to appear could result in a finding that Mother waived her legal 

rights, admitted the allegations in the motion and the court could proceed 

based on the record presented.

¶3 In February 2017, the court adjudicated the children 

dependent as to Mother based on allegations of Mother’s substance abuse 

and approved a family reunification case plan. In December 2017, Mother 

signed Form III, “Notice to Parent in Termination Action,” which states that 

Mother was to attend all hearings and failure could result in waiver of legal 

rights and admission of the allegations included in the motion for 

termination. The form also explained that the hearing could proceed in

Mother’s absence, resulting in termination of parental rights based on the 

record and evidence presented.

¶4 After Mother demonstrated sobriety, DCS returned the 

children to Mother’s care in May 2018. The juvenile court, however, did not 

dismiss the dependency action and in June 2018, Mother failed to attend a 

dependency review hearing. Mother relapsed in June 2018 and DCS once 

again removed the children from Mother’s custody in July 2018. The 

relapse was confirmed by Mother’s hair follicle tests, which were positive 

for methamphetamine in June and July 2018.
BRITTANY R. v. DCS, et al.

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¶5 In August 2018, Mother again failed to appear for a 

dependency review hearing, where the juvenile court changed the case plan 

to severance and adoption. Later that month, DCS moved to terminate 

mother’s parental rights on the grounds that her history of chronic 

substance abuse rendered her unable to discharge her parental 

responsibilities, Arizona Revised Statutes (“A.R.S.”) section 8-533(B)(3), 

and that the duration of the children’s cumulative time in an out-of-home 

placement had exceeded fifteen months with a substantial likelihood that 

Mother would not be able to parent in the near future, A.R.S. § 8-

533(B)(8)(c). The juvenile court set the initial severance hearing for 

September 18, 2018, and Mother received timely notice by mail, which the 

juvenile court later confirmed at the initial severance hearing, without 

objection from Mother’s attorney.

¶6 During July and August 2018, Mother exchanged emails with 

her DCS case manager explaining she was actively, but unsuccessfully, 

seeking inpatient substance abuse treatment at Crossroads. Mother’s last 

email on August 28, 2018 stated, “you will be on the ROI [Release of 

Information] so that [you] can call [and] make sure that [I] am there.” The 

emails also reflect that Mother knew she would have limited access to a 

telephone.

¶7 Mother failed to appear at the September 18 initial severance 

hearing, and her attorney provided no excuse for her absence. The juvenile 

court found service was complete, and that Mother failed to appear at the 

hearing without good cause. The juvenile court granted DCS’s request to 

proceed to termination immediately. DCS presented evidence to justify 

severance, and the juvenile court issued Findings of Fact and Conclusions 

of Law terminating Mother’s parental rights.

¶8 In October 2018, Mother filed a motion to set aside the 

juvenile court’s finding that she failed to appear without good cause. 

Mother contended there was good cause for her failure to appear because 

at the time of the hearing she was a patient at Crossroads rehabilitation 

facility. An email from a Crossroads employee attached to the motion 

stated that Mother had been a resident at Crossroads since September 10, 

2018, at which time she tested positive for “Meth and Benzos.” The email 

further stated that Mother and Crossroads staff attempted to contact DCS

numerous times, and DCS failed to respond.

¶9 In response, DCS stated the last contact DCS received from 

Mother was a September 10, 2018 voicemail, explaining Mother was trying 

to get accepted at Crossroads but had not yet been accepted. However, 
BRITTANY R. v. DCS, et al.

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when DCS contacted Crossroads, they refused to confirm whether Mother 

was in their program. The next time DCS received any contact from 

Crossroads or Mother was after the severance hearing, on October 3, 2018.

¶10 The superior court heard argument on Mother’s motion to set 

aside the severance orders. Counsel for DCS informed the court that after 

the case manager’s last exchange with Mother, the case manager went to 

Mother’s last known address and contacted Crossroads, but the facility 

would not confirm whether Mother was a patient there. The juvenile court 

denied Mother’s motion. Mother timely appealed. We have jurisdiction 

pursuant to A.R.S. §§ 8-235, 12-120.21(A)(1), and 12-2101(A)(2).

DISCUSSION

¶11 Mother argues that the juvenile court erred in denying her 

motion to set aside the court’s termination order, contending that she had 

good cause for her failure to appear at the initial termination hearing. We 

disagree.

¶12 When a parent has failed to appear at an initial severance 

hearing without good cause, and the court finds the parent had proper 

notice and was previously admonished as to the consequences of failing to 

appear, Arizona Rule of Procedure for the Juvenile Court 65(C)(6)(c) allows 

a court to find the parent waived her right to contest the allegations on the 

motion for termination, deem the parent to have admitted the statutory 

basis for severance, and “proceed with the adjudication of termination 

based upon the record and evidence presented.” See also A.R.S. § 8-863(C); 

Ariz. R.P. Juv. Ct. 64(C).

¶13 To show good cause to set aside a termination order arising 

out of a scheduled initial severance hearing, a parent must only prove 

mistake, inadvertence, surprise, or excusable neglect. Trisha A. v. Dep’t of 

Child Safety, 245 Ariz. 24, 31-32, ¶¶ 17, 22 (App. 2018). A finding of good 

cause for failure to appear is largely discretionary. John C. v. Sargeant ex rel 

Maricopa Cty., 208 Ariz. 44, 47, ¶ 13 (App. 2004), superseded on other grounds 

as recognized by Ariz. Dep’t of Econ. Sec. v. Reinstein, 214 Ariz. 209 (App. 2007). 

“Excusable neglect exists if the neglect or inadvertence is such as might be 

the act of a reasonably prudent person in the same circumstances.” Christy 

A. v. Ariz. Dep’t of Econ. Sec., 217 Ariz. 299, 304, ¶ 16 (App. 2007) (internal 

quotations and citation omitted).

¶14 We review a finding that a parent lacked good cause for her 

failure to appear, and the court’s decision on a motion to set aside 

judgment, for an abuse of discretion. See Adrian E. v. Ariz. Dep’t of Econ. 
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Sec., 215 Ariz. 96, 101, ¶ 15 (App. 2007); Christy A., 217 Ariz. at 303, ¶ 12 

(addressing a motion to set aside). We will reverse a finding that a parent 

lacked good cause for failing to appear only if the juvenile court’s exercise 

of discretion was “manifestly unreasonable, or exercised on untenable 

grounds, or for untenable reasons.” Adrian E., 215 Ariz. at 101, ¶ 15 

(citations and quotation omitted).

¶15 Mother does not deny receiving notice of the September 18 

hearing, as well as notice that her failure to appear for scheduled hearings 

could result in the waiver of certain legal rights and an admission of DCS’s 

allegations. She instead argues there was good cause for her failure to 

appear.

¶16 We find no error in the juvenile court’s finding that Mother 

failed to demonstrate good cause for her absence from the initial severance 

hearing. Despite having adequate notice of the exact date and time of the 

hearing, she made no effort to contact her counsel or the court. Although 

she asserts that Crossroads staff attempted to contact DCS, she cites no 

evidence suggesting her residence at Crossroads was an insurmountable 

barrier to contacting the court before September 18. To the contrary, 

Crossroads’ October 11, 2018 email reveals Mother left Crossroads without 

permission on October 10, 2018, purportedly to go to the DCS office. 

Further, Mother’s emails to her DCS case manager acknowledge that she 

knew she would have limited access to telephones and that she needed to 

sign a Release of Information for DCS to confirm she was a Crossroads 

patient. However, when Mother’s case manager contacted Crossroads to 

confirm Mother was a patient there, the facility refused to provide any 

information. Mother does not argue she ever signed the ROI authorizing 

DCS to obtain information from Crossroads as planned.1 Therefore, the 

court could reasonably conclude that, entering treatment and failing to sign 

the ROI, Mother thwarted DCS’s efforts to communicate with Mother or to 

verify her status as a Crossroads patient at the time of the hearing. On this 

record, we cannot say that the juvenile court abused its discretion. Mother’s 

conduct was not that of a reasonably prudent person facing termination of 

her parental rights. Accordingly, the superior court did not err.

 

1 In an email dated November 7, 2018, DCS references an October 3, 

2018 voicemail wherein a Crossroads representative inquired about future 

court dates and informed DCS that Crossroads had an ROI which allowed

it to receive information about Mother’s court case. Even if this ROI existed, 

it would not necessarily permit Crossroads to release information about 

Mother to third parties.
BRITTANY R. v. DCS, et al.

Decision of the Court

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CONCLUSION

¶17 Mother does not challenge the juvenile court’s findings in 

support of severance, and because we find no error in the determination 

that she failed to appear without good cause, we affirm the order 

terminating Mother’s parental rights to the children.