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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MARK S., Appellant,

v.

DEPARTMENT OF CHILD SAFETY,1 L.S., K.S., Appellees.

No. 1 CA-JV 14-0292

 1 CA-JV 14-0297

 (Consolidated)

Appeal from the Superior Court in Maricopa County

No. JD21396

The Honorable Bradley H. Astrowsky, Judge

AFFIRMED

COUNSEL

John L. Popilek, P.C., Scottsdale

By John L. Popilek

Counsel for Appellant

 

1 Pursuant to S.B. 1001, Section 157, 51st Leg., 2nd Spec. Sess. (Ariz. 

2014) (enacted), the Arizona Department of Child Safety is substituted for 

the Arizona Department of Economic Security in this matter. See ARCAP 

27.
2

Arizona Attorney General’s Office, Tucson

By Laura J. Huff

Counsel for Appellee, Department of Child Safety

MEMORANDUM DECISION

Presiding Judge Margaret H. Downie delivered the decision of the Court, 

in which Judge Patricia K. Norris and Judge Randall M. Howe joined.

D O W N I E, Judge:

¶1 Mark S. (“Father”) appeals from an order terminating his 

parental rights. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY2

¶2 Father and Mother lived in Ohio with L.S. and K.S. (“the 

children”).3 They separated in August 2010, and Father did not live with 

the children thereafter. At some time before November 2011, the children 

and Mother moved to Arizona. In January 2012, DCS took custody of the 

children after Mother was arrested; Father’s whereabouts were unknown. 

¶3 DCS filed a dependency petition and served Father by 

publication. In August 2012, the juvenile court found the children 

dependent as to Father. That same month, DCS located Father in 

Kentucky and notified him of the proceedings and the services he was 

expected to complete. 

¶4 The children’s Guardian Ad Litem (“GAL”) moved to 

terminate Father’s parental rights on the grounds of abandonment. Father 

began participating in court hearings by telephone, but the court ordered 

him to personally appear for the severance trial, which he did. Before the 

court issued its ruling, Father moved to dismiss the juvenile court

proceedings, arguing the court lacked jurisdiction under the Uniform 

 

2 On appeal, “[w]e view the facts in the light most favorable to 

upholding the juvenile court’s order.” Ariz. Dep’t of Econ. Sec. v. Matthew 

L., 223 Ariz. 547, 549, ¶ 7, 225 P.3d 604, 606 (App. 2010).

3 Mother’s parental rights were also terminated, but she is not a party 

to this appeal. 
MARK S. v. DCS, et al.

Decision of the Court

3

Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) based on

custody proceedings in Ohio. The juvenile court vacated its dependency 

finding as to Father and dismissed the motion for termination as to him. 

¶5 As a result of a UCCJEA conference, the Ohio court 

relinquished jurisdiction to the juvenile court. DCS filed new dependency 

and severance petitions. Although the court advised Father he must 

personally appear for the consolidated dependency and severance trials,

he failed to do so. The court noted that Father had been repeatedly 

ordered to personally appear, and, after a discussion with counsel, ruled 

there was no good cause for Father’s absence. Trial proceeded. 

¶6 On October 6, 2014, the juvenile court filed a signed minute 

entry finding the children dependent, terminating Father’s parental rights, 

and ordering DCS to submit findings of fact and conclusions of law. 

Father filed a notice of appeal on October 20, 2014. The juvenile court

thereafter issued its findings of fact and conclusions of law on October 31, 

2014. 

¶7 Although Father’s notice of appeal was premature, it does 

not deprive this Court of jurisdiction. See Barassi v. Matison, 130 Ariz. 418, 

422, 636 P.2d 1200, 1204 (1981) (premature appeal from minute entry 

where appellee is not prejudiced and a subsequent final judgment is 

entered need not be dismissed). We have jurisdiction pursuant to Arizona 

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

-2101(A)(1).

DISCUSSION

¶8 Father argues the juvenile court erred by concluding there 

was no good cause for his failure to appear for trial. “[A] finding of good 

cause for failure to appear is largely discretionary.” Adrian E. v. Ariz. 

Dep’t of Econ. Sec., 215 Ariz. 96, 101, ¶ 15, 158 P.3d 225, 230 (App. 2007). 

We will reverse only if the court’s exercise of its discretion was 

“manifestly unreasonable, or exercised on untenable grounds, or for 

untenable reasons.” Id.

¶9 Arizona Rule of Procedure for Juvenile Court 66(D)(2) states:

If the court finds the parent . . . failed to appear at the 

termination adjudication hearing without good cause 

shown, had notice of the hearing, was properly served 

pursuant to Rule 64 and had been previously admonished 

regarding the consequences of failure to appear, including a 
MARK S. v. DCS, et al.

Decision of the Court

4

warning that the hearing could go forward in the absence of 

the parent . . . and that failure to appear may constitute a 

waiver of rights, and an admission to the allegation 

contained in the motion or petition for termination, the court 

may terminate parental rights based upon the record and 

evidence presented if the moving party or petitioner has 

proven grounds upon which to terminate parental rights.

See also A.R.S. § 8-537(C) (If a parent does not appear for trial, after 

determining appropriate notices were given, the court may terminate the 

parent’s rights “based on the record and evidence presented.”). 

¶10 Father does not contend he received insufficient notice of the 

trial or inadequate warnings regarding the consequences of failing to 

appear. Indeed, the record reflects Father was admonished several times 

about the need to personally appear and the consequences of failing to do 

so. Throughout the proceedings, the court made clear that it would 

accommodate Father by permitting him to appear telephonically at 

proceedings other than the trial. 

¶11 Contrary to Father’s suggestion, this is not a “default” 

situation, where the court entered a severance order based solely on his 

failure to appear and implicit waiver of the right to contest the allegations. 

If it were, Father would be required to, inter alia, demonstrate a 

meritorious defense, see Christy A. v. Ariz. Dep’t of Econ. Sec., 217 Ariz. 299, 

304, ¶ 16, 173 P.3d 463, 468 (App. 2007), which he has not done. Here, the 

court conducted a trial at which Father’s counsel appeared and 

participated. The court also specifically considered testimony that Father 

had offered at the first severance trial and admitted a recording of that 

proceeding into evidence. 

¶12 A.R.S. § 8-537(A) authorizes the court to require the presence

of any party deemed necessary to resolve a severance petition, “except 

that a parent who has executed a waiver pursuant to § 8-535, or has 

relinquished the parent’s rights to the child shall not be required to appear 

at the hearing.” Father falls under neither of these statutory exceptions. 

Although the court has the discretion to allow telephonic appearances, 

Ariz. R.P. Juv. Ct. 42, it is not obligated to permit parents to appear by 

telephone. Willie G. v. Ariz. Dep’t of Econ. Sec., 211 Ariz. 231, 234, ¶ 14, 119 

P.3d 1034, 1037 (App. 2005). Here, both DCS and the GAL objected to 

Father appearing telephonically, and the court could have reasonably 

concluded it was necessary to observe Father as he testified, including 
MARK S. v. DCS, et al.

Decision of the Court

5

cross-examination, to assess the grounds for severance and the children’s 

best interests.4 

¶13 At the pretrial conference, Father claimed he would lose his 

job if he appeared in person for trial. But at trial, his attorney supplied

documentation indicating only that Father would not be paid for time off

and that he was scheduled to work on the trial dates. In discussing the 

letter, the following exchange took place: 

[Father’s counsel:] I anticipated getting a copy of an 

employee handbook saying you can’t leave during the first 

90 days of your work or you get fired. Instead this person, 

who’s a supervisor, attached a document explaining that 

you don’t get paid if you take off from work until you reach 

certain levels of --

[Court:] . . . [N]ot that he couldn’t take off work, he just 

would be unpaid.

[Father’s counsel:] That’s the way I read it. . . . [T]hat’s 

apparently his reason for not being here today.

Father offered no additional explanation for his failure to appear.5 Under 

the circumstances, the juvenile court did not err by concluding that he 

failed to establish good cause for not attending the trial in person, as

previously ordered.

 

4 Father does not challenge the sufficiency of the evidence supporting 

the grounds for termination or the best interest determination. 

5 Father’s argument that the expense of traveling to Arizona was 

prohibitive was not presented at the time of trial. See Cullum v. Cullum, 

215 Ariz. 352, 355 n.5, ¶ 4, 160 P.3d 231, 234 n.5 (App. 2007) (As a general 

rule, a party cannot raise arguments on appeal that were not raised 

below.). Moreover, the evidence established that Father traveled 

extensively during the juvenile court proceedings. The court found that 

Father “had the means to travel,” yet “chose to prioritize other people and 

other personal business over these children and this case.” 
MARK S. v. DCS, et al.

Decision of the Court

6

CONCLUSION

¶14 For the reasons stated, we affirm the juvenile court’s order 

terminating Father’s parental rights.