dissenting.
After the trial court denied Respondent’s request to be transported from the prison to personally appear at the support hearing and held that he could appear telephonically from prison, Respondent advised the judge by letter that, due to the alleged violation of his due process rights, he would thereafter
refuse to attend any “Telephonic” manner of hearing, and ... refuse to recognize or acknowledge further participation and responsibility to further proceedings, or to said child____ You can go ahead and make whatever rulings you want in this case, but it will be without me listening on the telephone to it.
Notwithstanding this clear repudiation by Respondent of the opportunity afforded him *112to appear and defend in this case, the majority here grants extraordinary relief under Rule 60(c) and holds that we must reverse this judgment because the trial court did not spontaneously order prison officials to set up the very telephone conference in which Respondent had refused to participate. Respondent’s letter to the court attacking the proceedings is an obvious and palpable waiver of his right to appear telephonically. Waiver of the due process right to be present at trial may be found by implication. United States v. Gagnon, 470 U.S. 522, 105 S.Ct. 1482, 84 L.Ed.2d 486 (1985). Waiver here is, however, explicit. I would affirm this judgment in all respects.
The majority’s assumption that the failure of the trial judge to specifically order the Department of Corrections to arrange a telephonic conference for Respondent caused him to miss the hearing not only flies in the face of the prisoner’s express refusal to take part in the proceedings, but is supported by no evidence at all in the record. It is not self-evident that the court’s minute entry order directing “that the Respondent may appear telephonically at the hearing set for February 1, 1996 at 10:00 a.m.” would not suffice to allow Respondent access to a telephone had he provided a copy to prison officials, and at no time before the hearing did Respondent suggest to the trial judge that some further order was required. On this silent record, we are to presume that the record before the trial court supported the denial of the Rule 60(c) motion, see Lewis, 178 Ariz. at 338, 873 P.2d at 676, and thus conclude that Respondent’s failure to participate in the hearing by telephone was not due to alleged prison policies which Respondent has never proved.
SUPPLEMENTAL OPINION
GRANT, Judge.Following our opinion in this case, the State, on behalf of the Arizona Department of Corrections (“ADOC”), filed a timely Motion for Reconsideration asking for clarification of our instruction to the trial court. The Motion asks us to clarify our opinion by specifying that ADOC is not financially responsible for the costs of any telephonic hearings in the paternity action to which Valentine, the Respondent here, is a party. Specifically, the State seeks clarification of the following instruction:
We also instruct the trial court to issue an order to the Arizona Department of Corrections to assure that Respondent will be able to [participate telephonically at the rehearing, in order to properly] protect Respondent’s due process rights. The court cannot order Respondent to participate telephonically only at Respondent’s own expense as was previously ordered because that is impractical given the fact that Respondent is a prison inmate.
ADOC is concerned that our opinion may be interpreted as requiring ADOC to bear the costs associated with Respondent’s telephonic appearance. ADOC asserts that under’ Lewis v. Casey, 518 U.S. 343, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996), ADOC has no obligation to assist inmates in paternity actions. The Lewis Court states that inmates are entitled to assistance from the State in only two areas: (1) direct appeals from convictions; and (2) civil rights actions — i.e., actions under 42 U.S. § 1983 to vindicate “basic constitutional rights.” Id. at---, 116 S.Ct. at 2181-82.
We grant the State’s Motion for Reconsideration and clarify our opinion in this supplemental opinion. The trial court must send ADOC a copy of that court’s order allowing Valentine to participate telephonically in the paternity hearing, and ADOC must honor the order by providing Valentine with access to a telephone at the time set for the hearing. ADOC need not pay the cost of the telephone call; however, it must bear the costs of transporting Valentine from his cell to a telephone and of taking whatever security measures are necessary while Valentine is participating in the hearing. Transportation and security costs relating to Valentine’s participation in the hearing must be borne by ADOC, just as they would be if Valentine were physically transported to the court to participate in person. If Valentine is indigent the court must pay the cost of the telephone call. If Valentine (or a similarly situated prisoner) is not indigent, then Valentine must pay the cost of the telephone call. *113“A parent’s right to custody and control of his or her child is fundamental.” Pima County Juv. Severance Action No. S-120171, 183 Ariz. 546, 548, 905 P.2d 555, 557 (App. 1995) (citing Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982)).
KLEINSCHMIDT, J., concurs.