Opinion
No. 1 CA-JV 13-0218
02-18-2014
NORMAN N., Appellant, v. SAMANTHA M., D.N., J.N., S.N., M.N., Appellees.
David W. Bell Attorney at Law, Mesa By David W. Bell Counsel for Appellant Vescio Law Firm, P.C., Glendale By Theresa L. Seifert Counsel for Appellee Samantha M.
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Maricopa County
No. JS 12192
The Honorable Jay Adleman, Judge
The Honorable Annielaurie Van Wie, Judge Pro Tem
AFFIRMED
COUNSEL
David W. Bell Attorney at Law, Mesa
By David W. Bell
Counsel for Appellant
Vescio Law Firm, P.C., Glendale
By Theresa L. Seifert
Counsel for Appellee Samantha M.
MEMORANDUM DECISION
Judge Margaret H. Downie delivered the decision of the Court, in which Presiding Judge Kent E. Cattani and Judge Michael J. Brown joined. DOWNIE, Judge:
¶1 Norman N. ("Father") appeals from an order severing his parental rights and from an order denying his motion to set aside the severance order. For the following reasons, we affirm the denial of the motion to set aside but lack jurisdiction to consider the propriety of the underlying severance order.
FACTS AND PROCEDURAL HISTORY
¶2 Samantha M. ("Mother") and Father are the parents of five children. Mother filed a petition to terminate Father's parental rights on August 21, 2012. At the time, she did not know Father's address and therefore initiated service by publication. Mother later identified an address for Father, though, and abandoned service by publication.
¶3 A process server filed a sworn declaration of service, avowing that she served Father personally in Colorado Springs, Colorado on November 16, 2012, with the following documents (collectively, the "Documents"): "Notice of Appearance," "Petition for Termination of Parent-Child Relationship," "Order re: Continuance," and "Order Setting Initial Hearing on Petition for Termination of Parent Child Relationship."
¶4 Father did not appear at the initial severance hearing held on January 9, 2013. Mother, her attorney, and the children's guardian ad litem were present. The juvenile court ruled that Father had been properly served and had failed to appear without good cause, thereby waiving his right to contest the proceedings. The court heard evidence and thereafter terminated Father's parental rights on the ground of abandonment. See Arizona Revised Statutes ("A.R.S.") section 8-533(B)(1).
¶5 On May 14, 2013, Father filed a form entitled "Request for Review Hearing/Appointment of Attorney/And/Or Interpreter," alleging that he was served on "11/04/2012" with "someone else's paperwork," which he attached. The court appointed counsel to represent Father.
¶6 On June 17, 2013, counsel filed a motion to set aside the severance order pursuant to Rule of Procedure for the Juvenile Court ("Juvenile Rule") 46(E) and Arizona Rule of Civil Procedure ("Rule") 60(c). Father argued that on or about November 4, 2012, he was served with paperwork pertaining to a foreclosure action in South Carolina. He claimed that although the process server told him the paperwork related to his "paternity or rights as a father," he did not in fact receive notice of the severance proceedings. Father testified that he did not inquire about the discrepancy because the process server "skirted out of the parking lot before [he] could realize what was going on." Father explained that he contacted the superior court's "Family Law Division," which advised that there were no pending actions involving him. He called again in April 2013 and was referred to the juvenile court. He claims that he first learned his parental rights had been severed when he later visited the juvenile court.
¶7 Mother opposed the motion to set aside. She provided an affidavit from the process server, who stated that she received the request to serve Father on November 13, 2012. The process server avowed that her standard practice upon receiving such a request is to verify that the documents provided match the description of the documents to be served. She further explained that immediately before serving Father, she again "verified that the field sheet containing [Father's] information matched the paperwork that was to be served." The process server stated that after serving Father, she remained in her vehicle on the premises to complete paperwork and saw Father reviewing the papers she had served; he did not ask her about any alleged error. Finally, she avowed that her staff may have inadvertently attached the foreclosure paperwork "to the back of [Father's] paperwork," but stated: "I know that I also served him with the [Documents] based on my personal recollection." Mother also provided the court with a "field sheet" bearing Father's signature, which stated that he received the Documents from the process server on November 16, 2012 at 11:37 a.m.
¶8 The juvenile court held a hearing on the motion to set aside, which included testimony from Father and arguments by counsel. The court reaffirmed that Father had been properly served and denied his motion. Father filed a notice of appeal, purporting to appeal from both the denial of his motion to set aside and the underlying severance order.
DISCUSSION
I. Jurisdiction
¶9 The signed severance order was filed on January 25, 2013. Father did not file a notice of appeal until August 9, 2013. Because the notice of appeal was filed more than 15 days after the severance order issued, and Father did not seek leave to file a belated appeal, see Ariz. R.P. Juv. Ct. 108(B), his appeal of the severance order is untimely. See Ariz. R.P. Juv. Ct. 104(A) ("A notice of appeal shall be filed . . . no later than 15 days after the final order is filed with the clerk."). We consequently lack jurisdiction to review the severance order and Father's arguments challenging its issuance. See Mayer v. State, 184 Ariz. 242, 243, 908 P.2d 56, 57 (App. 1995) ("Appellate courts lack jurisdiction to consider appeals that are not timely filed."). This includes Father's arguments regarding the court's failure to order a social study or appoint counsel before issuing the severance order.
¶10 We do, however, have jurisdiction to consider the denial of Father's motion to set aside. See A.R.S. § 8-235(A); Ariz. R.P. Juv. Ct. 103(A); see, e.g., Christy A. v. Ariz. Dep't of Econ. Sec., 217 Ariz. 299, 301, ¶ 1, 173 P.3d 463, 465 (App. 2007) (direct appeal from denial of motion to set aside entry of default). The scope of our review "is restricted to the questions raised by the motion to set aside" and does not extend to reviewing the propriety of the severance order. See Hirsch v. Nat'l Van Lines, Inc., 136 Ariz. 304, 311, 666 P.2d 49, 56 (1983); Goglia v. Bodnar, 156 Ariz. 12, 16, 749 P.2d 921, 925 (App. 1987).
¶11 Whether to set aside an entry of default is generally left to the sound discretion of the superior court, and our review is limited to finding a clear abuse of that discretion. Gen. Elec. Capital Corp. v. Osterkamp, 172 Ariz. 185, 188, 836 P.2d 398, 401 (App. 1992). However, because the superior court does not have the discretion to affirm a void judgment, we review de novo the denial of a motion to vacate a void judgment. Ezell v. Quon, 224 Ariz. 532, 536, ¶ 15, 233 P.3d 645, 649 (App. 2010). Under neither standard of review will we second-guess or substitute our judgment for that of the superior court on disputed questions of fact or credibility. Gen. Elec., 172 Ariz. at 188, 836 P.2d at 401.
II. Relief Under Rule 60(c)(4)
¶12 Juvenile Rule 46(E) states that, with exceptions not relevant here, a motion to set aside "shall conform to the requirements of Rule 60(c)." Under Rule 60(c)(4), a court may relieve a party from a void judgment.
¶13 "If a defendant has not been properly served, and the defect in service has not been waived, any resulting judgment is void and must be vacated on request." Ariz. Real Estate Inv., Inc. v. Schrader, 226 Ariz. 128, 129, ¶ 6, 244 P.3d 565, 566 (App. 2010). It is a "well-established rule of law that the return of service of process can be impeached only by clear and convincing evidence." Tonelson v. Haines, 2 Ariz. App. 127, 129, 406 P.2d 845, 847 (1965) (internal quotation marks omitted). Clear and convincing evidence — which requires somewhat less than proof beyond a reasonable doubt — is "proof that will produce in the mind of the trier of facts a firm belief or conviction as to the issue sought to be proved." State v. Canez, 202 Ariz. 133, 156, ¶ 76, 42 P.3d 564, 587 (2002) (citing State v. Turrentine, 152 Ariz. 61, 68, 730 P.2d 238, 245 (App. 1986)).
¶14 Father concedes that "Mother presented evidence that [Father] had been properly served by process server." But he argues that, "in fact, [he] had not been properly served or notified of the January 9, 2013 hearing." After considering the conflicting claims and the evidence presented, the juvenile court discredited Father's claim that he was served only with the incorrect paperwork. We find no abuse of the court's fact-finding discretion. Indeed, a contrary conclusion would require us to "second-guess or substitute our judgment" for that of the juvenile court regarding its resolution of disputed facts. Gen. Elec., 172 Ariz. at 188, 836 P.2d at 401; see also State v. Gallagher, 169 Ariz. 202, 203, 818 P.2d 187, 188 (App. 1991) ("[T]he credibility of a witness is for the trier-of-fact, not an appellate court.").
¶15 Notice to a parent must be given at least ten days before a hearing on a petition to terminate parental rights. A.R.S. § 8-863(A); Ariz. R.P. Juv. Ct. 64(C), (D). The notice must "advise the parent . . . that failure to appear at the initial hearing . . . without good cause, may result in a finding that the parent . . . has waived legal rights, and is deemed to have admitted the allegations in the motion or petition for termination." Ariz. R.P. Juv. Ct. 64(C). Pursuant to A.R.S. § 8-535(D), if a parent fails to appear for the initial severance hearing, "the court, after determining that the parent has been served with proper legal notice, may find that the parent has waived the parent's legal rights and is deemed to have admitted the allegations of the petition by the failure to appear."
¶16 Father received paperwork containing the required information on November 16, 2012, more than ten days before the January 9, 2013 hearing. He was served in compliance with Rule 4.2(b) (direct service outside Arizona). And he received a copy of the petition for termination and a document bearing the correct hearing date. See A.R.S. § 8-535(A); Ariz. R.P. Juv. Ct. 64(C), (D).
¶17 Based on the record before it, the juvenile court could properly conclude that Father was properly served. The resulting severance order is therefore not void and may not be set aside under Rule 60(c)(4).
III. Relief Under Rule 60(c)(1)
¶18 Father contends for the first time on appeal that his failure to appear was "excusable neglect" justifying relief under Rule 60(c)(1). He did not, however, argue excusable neglect or Rule 60(c)(1) in his motion to set aside and has thus waived that argument for purposes of appeal. See Cullum v. Cullum, 215 Ariz. 352, 355 n.5, ¶ 14, 160 P.3d 231, 234 n.5 (App. 2007) ("[A] party cannot argue on appeal legal issues not raised below."). Moreover, the excusable neglect assertion is premised on Father's claim that "a mistake was made by the process server," not on any grounds cognizable as excusable neglect by a party. Cf. Jarostchuk v. Aricol Commc'ns, Inc., 189 Ariz. 346, 348, 942 P.2d 1178, 1180 (App. 1997) ("Neglect is excusable if it might be the act of a reasonably prudent person under the same circumstances.") (internal quotation marks omitted).
IV. Relief Under Rule 60(c)(6)
¶19 Rule 60(c)(6) permits a court to set aside a final judgment or order for "any other reason justifying relief from the operation of the judgment." "The grounds for relief in clause (6) and the other grounds for relief allowed under Rule 60(c) are usually mutually exclusive." Amanti Elec., Inc. v. Engineered Structures, Inc., 229 Ariz. 430, 432, ¶ 6, 276 P.3d 499, 501 (App. 2012). However, if a motion "also raises exceptional additional circumstances that convince the court the movant should be granted relief in the interest of justice," relief under 60(c)(6) may be appropriate. Id. at 433, ¶ 10, 276 P.3d at 502 (emphasis added); see also Roll v. Janca, 22 Ariz. App. 335, 336-37, 527 P.2d 294, 295-96 (1974) (despite availability of relief under 60(c)(4), relief may be available under 60(c)(6) "under circumstances going beyond" the preceding clauses of Rule 60).
¶20 The motion to set aside cited Rule 60(c) (4) and (6), but its stated basis for relief was the same under both clauses: Father's alleged failure to receive notice of the severance proceedings. Father neither claimed nor established any "exceptional additional circumstances," Amanti, 229 Ariz. at 433, ¶ 10, 276 P.3d at 502, that would justify relief under Rule 60(c)(6). The determination that he was in fact properly served warranted denial of his motion under both subparagraphs.
Father's due process argument on appeal is similarly based on his alleged failure to receive notice of the proceedings. He argues that "the improper service led to the violation of [Father's] due process rights."
The juvenile court also focused on Father's failure to timely act, noting the date of service (November 16, 2012) and Father's first appearance in the proceeding (his request for relief filed May 14, 2013). See Amanti, 229 Ariz. at 432, ¶ 8, 276 P.3d at 501 (relevant consideration under Rule 60(c)(6) is "the timing of the request for relief"). The court voiced concern about the fact that Father returned to live in Phoenix in December 2012, but did not promptly investigate or seek relief from the court.
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CONCLUSION
¶21 We affirm the denial of Father's motion to set aside the juvenile court's severance order.