Opinion
1 CA-JV 22-0223
04-06-2023
IN RE TERMINATION OF PARENTAL RIGHTS AS TO Z.R.
Jaburg & Wilk PC, Phoenix By Kathi M. Sandweiss, Roger L. Cohen Counsel for Appellant Tiffany & Bosco PA, Phoenix By Amy D. Sells, Alexander Poulos Counsel for Appellee
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. JS519752 The Honorable Sigmund G. Popko, Judge, Pro Tempore
Jaburg & Wilk PC, Phoenix By Kathi M. Sandweiss, Roger L. Cohen Counsel for Appellant
Tiffany & Bosco PA, Phoenix By Amy D. Sells, Alexander Poulos Counsel for Appellee
Judge David D. Weinzweig delivered the decision of the Court, in which Presiding Judge Cynthia J. Bailey and Judge Jennifer B. Campbell joined.
MEMORANDUM DECISION
WEINZWEIG, JUDGE
¶1 In this private severance action, Angelica R. ("Mother") appeals the juvenile court's dismissal of her petition to terminate the parental rights of Jake V. ("Father") and restoration of Father's parental rights to their four-year-old daughter ("Daughter"). Because Father was denied due process, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Mother and Father are the natural parents of Daughter, born in May 2018. In October 2020, Mother petitioned the superior court to establish paternity and determine legal decision-making, parenting time and child support.
¶3 Mother then filed three more documents, each purportedly signed by Father, including a Stipulation, Waiver by Parent of Notice of Hearing and Appearance on Petition for Termination of Parent-Child Relationship ("Waiver"), and Consent to Termination of Parental Right ("Consent"). The Stipulation resolved that Father was a natural parent, limited his parenting time, and granted Mother sole decision-making authority. The Waiver acknowledged that Mother's petition to terminate "will be filed," and indicated that Father had "waive[d] notice and service of all further proceedings in that matter." The Consent reflected that Father "waive[d] the requirement of service and notice of time and date of all hearings concerning the termination of [his] parental rights."
Petition to Terminate
¶4 Two months later, in December 2020, Mother petitioned to terminate Father's parental rights to Daughter based on his consent and abandonment of Daughter. According to Mother, Father agreed his parental rights should be terminated, and termination was in Daughter's best interest because she would be "available for adoption by any future spouse of Mother." Mother attached the Consent and Waiver, both purportedly signed by Father and reflecting his intent to waive all due process rights, including service and notice of all hearings.
¶5 The juvenile court appointed an attorney to represent Father, but Father never spoke to that attorney, apparently because Mother supplied a letter, also purportedly signed by Father, directing the attorney to leave him alone:
I no longer want to be contacted on this matter or discuss it any further. I was informed that I would hear from you so I decided to take it upon myself to reach out and confirm that I am aware what I signed terminating all parental rights to [Daughter]. I have already waived my right to service and any other contact. I prefer not to give my number out. I would like to reiterate that I no longer want to be contacted on this matter via phone, service, mail, etc. I am aware what I signed and understand what it means.
¶6 Father did not appear at the initial severance hearing in February 2021. His attorney appeared virtually. At the outset, the juvenile court noted that it "appear[ed]" Father had consented to the termination of his parental rights, and the court asked Father's attorney if she had spoken to her client. Father's attorney answered that she had not spoken to her client, pointing to Father's letter, which, she said, "essentially indicat[ed] he understood what he was doing and did not wish to speak with me or have any further contact with me to discuss the matter. And so that was the end of - of that discussion." Father's attorney then added: "[B]ut I've not had the opportunity to make sure [Father] understood the legal implications, because he did not want to speak to me." Mother's attorney then read Father's letter into the record.
¶7 From there, the juvenile court pivoted to termination, and Mother was sworn to testify. Answering questions from her attorney, Mother testified that Father was absent from Daughter's life and had never shown interest in Daughter or parenthood. The court then posed three questions directly to Mother:
COURT So tell me if - the extent that Father has been involved with the child?
MOTHER He's not involved; pretty much at all, like at all.
COURT Like has he ever been?
MOTHER No. We had her together at the hospital, but that was really it. He doesn't live with us, he's never ever been with her without me there. He sees her never really. And he has no interest either.
COURT Okay. So when you approached him about the - the termination of his parental rights, what was sort of his reaction to that proposal?
MOTHER I just approached him and he just willingly signed. It was pretty much a five minute deal. The notary signed off. That was pretty much it.
¶8 Mother's attorney then asked, "Has [Father] ever objected to this in any way?" Mother replied, "No, never."
¶9 At the end of that hearing, the juvenile court found that Mother had proven consent and abandonment as grounds for termination by clear and convincing evidence, and that termination was in Daughter's best interest by a preponderance of the evidence. The court never addressed its jurisdiction or service of process during the hearing. Its minute entry stated only "that this Court has jurisdiction; the child resided in Maricopa County, Arizona, at the time the petition was filed."
Appearance and Summary Judgment
¶10 Seven months later, in September 2021, Father moved the juvenile court to set aside the termination order, insisting he just learned his parental rights had been severed and that the termination order was void for fraud on the court. Father asserted that he and his parents had a close relationship with Daughter and provided photographic evidence in support. Indeed, Father visited Daughter four days before and eight days after the termination hearing.
¶11 Father claimed that he never signed some of the documents used to terminate his parental rights, that he never read any of the documents, and that he only signed other documents under false pretenses. Father offered one example, alleging:
Father remembers that in October 2020 he signed one, maybe two, signature pages that [Mother's dad] presented to him claiming, "We need you to sign this if there's a medical emergency and we can't reach you." Father never saw anything other than a signature page. He was . . . playing with [Daughter] at the time.
¶12 Father moved for summary judgment in April 2022, arguing the order that terminated his parental rights was void for lack of service. The juvenile court granted summary judgment to Father, reasoning the earlier court lacked jurisdiction to enter the termination order because Father was never properly served with the termination petition. The court restored Father's parental rights and dismissed the termination action. Mother now appeals. We have jurisdiction. See A.R.S. §§ 8-235(A); 12-120.21(A)(1), and -2101(A)(1).
DISCUSSION
¶13 We review de novo the grant of summary judgment and questions of statutory interpretation. See Palmer v. Palmer, 217 Ariz. 67, 69, ¶ 7 (App. 2007). We will affirm the entry of summary judgment if it is correct for any reason, even if not explicitly considered by the juvenile court. CK Fam. Irrevocable Tr. No. 1 v. My Home Grp. Real Est. LLC, 249 Ariz. 506, 508, ¶ 6 (App. 2020).
¶14 Summary judgment is properly granted when there is no genuine dispute as to material fact and the moving party is entitled to judgment as a matter of law. Ariz. R. Civ. P. 56(a); Ariz. R.P. Juv. Ct. 318(b). Summary judgment is appropriate when the "facts produced in support of the claim or defense have so little probative value, given the quantum of evidence required, that reasonable people could not agree with the conclusion advanced by the proponent of the claim or defense." Orme Sch. v. Reeves, 166 Ariz. 301, 309 (1990).
¶15 All parents enjoy a fundamental liberty interest in the care and custody of their children; and when that interest is challenged, parents hold a fundamental due process right to "fair procedures." Santosky v. Kramer, 455 U.S. 745, 746 (1982). The most basic of those procedures is service of process, which represents a jurisdictional requirement. See Angelica R. v. Popko, 253 Ariz. 84, 89, 90, ¶¶ 14, 18 (App. 2022). A judgment entered by a court without jurisdiction is void. Martin v. Martin, 182 Ariz. 11, 15 (App. 1994) ("A judgment or order is 'void' if the court entering it lacked jurisdiction: (1) over the subject matter, (2) over the person involved, or (3) to render the particular judgment or order entered.").
¶16 The legislature left it to our supreme court to craft "the procedural framework for making the termination decision," Marianne N. v. Dep't of Child Safety, 243 Ariz. 53, 57, ¶ 21 (2017), including how and when the juvenile court "may terminate the parent-child relationship as to a parent who does not appear," A.R.S. §§ 8-535(D), -537(C) ("as provided in rules prescribed by the supreme court").
¶17 As relevant here, that procedural framework includes Arizona Rules of Juvenile Court Procedure 351 and 352. These rules require the juvenile court to determine the jurisdictional issue of service before it terminates the relationship between parent and child, which is a permanent decision of constitutional consequence. See M.L.B. v. S.L.J., 519 U.S. 102, 119 (1996) ("Few consequences of judicial action are so grave as the severance of natural family ties.") (cleaned up).
At the time of the termination hearing, a former version of the rules applied. But because they are substantively the same, we cite the current rules.
¶18 Rule 352 concerns the initial termination hearing. When "the termination of parental rights is requested by petition," as here, the initial termination hearing occurs "after the completion of service." Ariz. R.P. Juv. Ct. 352(b)(1). This rule requires the juvenile court to "determine whether service of process has been completed," Ariz. R.P. Juv. Ct. 352(a), and to "determine whether service of process has been completed pursuant to Rule 351 or waived as to each party," Ariz. R.P. Juv. Ct. 352(c)(4). After the initial termination hearing, the court must "enter findings concerning notification and service and the court's jurisdiction over the subject matter and persons before the court." Ariz. R.P. Juv. Ct. 352(d)(1).
¶19 When a parent does not attend the initial severance hearing, the juvenile court may proceed directly to the termination adjudication hearing and consider the evidence, but only after the court has determined the parent "was properly served pursuant to Rule 351." Ariz. R.P. Juv. Ct. 352(f)(1)(B), (2). Rule 351 directs the petitioner to serve the petition for termination on the parent "pursuant to Civil Rule 4.1 or 4.2." Ariz. R.P. Juv. Ct. 351(d)(B)(i).
¶20 Our supreme court has confirmed the juvenile court must "determin[e] that the parent was served with the motion to terminate parental rights." Marianne N., 243 Ariz. at 58, ¶ 22; see also Brenda D. v. DCS, 243 Ariz. 437, 443, ¶ 20 (2018) ("When a parent fails to appear at a duly-noticed termination adjudication hearing, a juvenile court may . . . proceed[] with the hearing in the parent's absence, only after finding that the procedural prerequisites have been met.").
¶21 The juvenile court here did not satisfy the requirements of Rule 352 because it terminated Father's parental rights when he failed to attend the initial termination hearing, but it never determined whether Father had been served with the petition for termination-the operative document in a termination action that sets forth Mother's allegations against Father. Nor did the court determine that Father had waived his right to be served with the petition for termination. The mere presence of Father's attorney at the hearing and Father's purported letter were not sufficient. See, e.g., Kline v. Kline, 221 Ariz. 564, 570, ¶ 19 (App. 2009) ("An attorney retained by an individual does not automatically qualify as an agent authorized by appointment to receive service on the individual's behalf.").
¶22 What is more, the juvenile court never entered "findings concerning notification and service and the court's jurisdiction over the subject matter and persons before the court." See Ariz. R.P. Juv. Ct. 352(a), (d)(1). The court never mentioned the issue of jurisdiction at the hearing, and its minute entry only stated, "the Court has jurisdiction."
¶23 For these reasons, we affirm the granting of summary judgment, see CK Fam. Irrevocable Tr. No. 1, 249 Ariz. at 508, ¶ 6, and do not reach whether proper service was accomplished.
CONCLUSION
¶24 We affirm. In our discretion, we deny Father's request for attorney fees.