Opinion
1 CA-JV 23-0223
05-16-2024
IN RE TERMINATION OF PARENTAL RIGHTS AS TO W.W.
Daniel Yanez, Chandler Appellant Father
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. JS21762 The Honorable Thomas Marquoit, Judge Pro Tempore
Daniel Yanez, Chandler Appellant Father
Presiding Judge Samuel A. Thumma delivered the decision of the Court, in which Judge Jennifer B. Campbell and Judge Michael J. Brown joined.
MEMORANDUM DECISION
THUMMA, JUDGE
¶1 Daniel Yanez (Father) appeals from an order terminating his parental rights to his biological child, W.W., when he failed to appear at an initial hearing on a petition to terminate. Because the record does not show that he was properly served with notice of the hearing, the order is vacated, and this matter is remanded for further proceedings.
FACTS AND PROCEDURAL HISTORY
¶2 Father and Amanda Nixon (Mother) are the biological parents of W.W., born in 2018. In October 2023, Mother filed a petition to terminate Father's parental rights. Upon receipt of that petition, the court issued a Notice of Initial Hearing setting a November 15, 2023, hearing on the petition and also ordered that Mother serve Father with the petition and the order setting dates. A certificate of service filed with the court shows that Father was served with the petition by a private process servicer in October 2023. That certificate, however, does not state that Father was served with the order setting the November 15, 2023, hearing.
¶3 On November 13, 2023, Father filed a response, disputing the petition. Father, however, did not attend the November 15, 2023, hearing. Noting the certificate of service, the court found Father had been served, that there was no good cause for his failure to appear and proceeded in his absence. After receiving evidence, the court granted Mother's petition, based in part on Father's failure to appear.
¶4 Father timely appealed that order, claiming he "was never mailed, served, nor certified mailed an order to appear." This court has jurisdiction pursuant to Article 6, Section, 9, of the Arizona Constitution, A.R.S. § 8-235(A), 12-120.21(A) and 12-2101(A) and Ariz. R.P. Juv. Ct. 60103 (2024).
Absent material revisions after the relevant dates, statutes and rules cited refer to the current version unless otherwise indicated.
DISCUSSION
¶5 Mother did not file an answering brief which could be considered a confession of error. This court, however, will exercise its discretion to address the merits of the issues raised on appeal. See Gibbons v. Indus. Comm'n, 197 Ariz. 108, 111 ¶ 8 (App. 1999).
¶6 If a parent fails to attend a properly noticed termination hearing without good cause, the court "may find that the parent has waived the parent's legal rights and is deemed to have admitted the allegations" and "may terminate the parent-child relationship as to a parent who does not appear based on the record and evidence presented." A.R.S. § 8-863(C); accord Ariz. R.P. Juv. Ct. 352(f). Before finding such waiver and admission, however, the court must find that the parent who fails to appear was properly served, "had notice of the initial termination hearing" and "had been admonished" that failure to appear could result in termination of parental rights. See Ariz. R.P. Juv. Ct. 352(f)(1)(A), (B) & (C).
¶7 Here, the record does not show that Father had notice of the hearing or was properly admonished of the consequences for failing to appear. Although the court noted the certificate of service, and that Father had filed a response to the petition, the certificate of service states that the petition was served on Father; it does not state that the Notice of Initial Hearing or the order setting dates had been served. There is no indication from the record that Father had notice of the hearing or that he had been admonished about the consequences for his failure to appear. Accordingly, the order terminating Father's parental rights, granted in part based on his failure to appear, cannot stand. See Ariz. R.P. Juv. Ct. 352(f).
CONCLUSION
¶8 The order terminating Father's rights to W.W. is vacated and this matter is remanded for further proceedings.