Opinion
1 CA-JV 23-0040
08-01-2023
IN RE DEPENDENCY AS TO X.W.
Robert D. Rosanelli Attorney at Law, Phoenix By Robert D. Rosanelli Counsel for Appellant Arizona Attorney General's Office, Mesa By Jennifer L. Thorson Counsel for Appellee Department of Child Safety
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. JD535033 The Honorable Amanda M. Parker, Judge
Robert D. Rosanelli Attorney at Law, Phoenix By Robert D. Rosanelli Counsel for Appellant
Arizona Attorney General's Office, Mesa By Jennifer L. Thorson Counsel for Appellee Department of Child Safety
Presiding Judge James B. Morse Jr. delivered the decision of the Court, in which Judge Cynthia J. Bailey and Judge Brian Y. Furuya joined.
MEMORANDUM DECISION
MORSE, Judge:
¶1 Liberte G. ("Mother") appeals the juvenile court's order placing X.W. ("Child") in the physical custody of Devin W. ("Father") and dismissing the dependency as to Child. For the following reasons, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Mother and Father are the biological parents of Child, born in October 2019. Father is not a party to this appeal.
¶3 In June 2022, Child's aunt filed a dependency petition, alleging Mother was unable to care for Child due to substance abuse. The court set an initial dependency hearing for July 2022 and ordered the Department of Child Safety ("DCS") to join as a co-petitioner. DCS initiated an investigation and determined Father was a safe and appropriate parent. After DCS informed the court that it did not agree with the dependency, the court continued the hearing to August 2022 and ordered Child to remain in her aunt's care.
¶4 At the August hearing, the court ordered that Child remain in her aunt's care and directed DCS to serve Mother with a copy of the dependency petition. The court continued the hearing to September 2022.
¶5 At the September hearing, the court substituted DCS as the petitioner and set a publication hearing for January 2023. DCS filed a substituted dependency petition, alleging Mother was unable to parent Child due to substance abuse and neglect. At the January hearing, the court found service by publication was complete as to Mother and set a status conference for February 2023.
¶6 A few weeks later, Mother moved to have Child placed in her care at an inpatient rehabilitation facility that allowed children to be with their parents. In response, DCS moved to change physical custody of Child to Father. The court granted DCS's motion to change physical custody of Child to Father, denying Mother's motion. The court also entered temporary orders awarding Father "temporary sole decision making authority" and allowing Mother "a minimum of four (4) hours of supervised visitation per week." The court then granted DCS's motion to dismiss the dependency.
¶7 Mother timely appealed. We have jurisdiction under A.R.S. §§ 8-235(A), 12-102.21(A)(1), and 12-2101(A)(1).
DISCUSSION
¶8 We review a dependency order for an abuse of discretion, Louis C. v. Dep't of Child Safety, 237 Ariz. 484, 488, ¶ 12 (App. 2015), and view the evidence in the light most favorable to upholding the court's order, Willie G. v. Ariz. Dep't of Econ. Sec., 211 Ariz. 231, 235, ¶ 21 (App. 2005). But whether the court has personal jurisdiction over a party is reviewed de novo. Bank of N.Y. Mellon v. Dodev, 246 Ariz. 1, 6, ¶ 15 (App. 2018).
¶9 Mother's only argument on appeal is that she was not properly served, rendering the court's orders void for lack of personal jurisdiction. But Mother waived this argument by appearing in court and moving to have Child placed in her care. Ariz. R. Civ. P. 4(f)(3)(A); see Montano v. Scottsdale Baptist Hosp., Inc., 119 Ariz. 448, 452 (1978) ("It is a rule of ancient and universal application that a general appearance by a party who has not been properly served has exactly the same effect as a proper, timely and valid service of process."); Austin v. State ex rel. Herman, 10 Ariz.App. 474, 478 (1969) ("If a party does any act which recognizes the case as in court such as asking for affirmative relief, he has made an appearance. "). Because Mother did not contest jurisdiction when she moved to have Child placed with her, the court acquired personal jurisdiction over her. See State ex rel. Dep't of Econ. Sec. v. Burton, 205 Ariz. 27, 29, ¶ 8 (2003) ("[A]ny action on the part of a party except to object to personal jurisdiction that recognizes the case as in court will constitute a general appearance.").
¶10 Mother also argues that the court committed fundamental error in finding service was complete as it deprived Mother of her constitutional right to notice. In addition to Mother's appearance in the matter, supra ¶¶ 6, 9, Mother's counsel informed the court that it had provided Mother a copy of the dependency petition. Because Mother had actual notice of the dependency proceedings, we find no error. See, e.g., Onyx T. v. Dep't of Child Safety, 1 CA-JV 20-0095, 2020 WL 5640800, at *3-4, ¶¶ 15-19 (Ariz. App. Sept. 22, 2020) (mem. decision) (finding DCS properly served the father by publication and the father had actual notice of the juvenile court proceedings).
CONCLUSION
¶11 We affirm.