Aaron L. v. Dep't of Child Safety
| Decision Date | 06 June 2019 |
| Docket Number | No. 1 CA-JV 18-0363,1 CA-JV 18-0363 |
| Parties | AARON L., Appellant, v. DEPARTMENT OF CHILD SAFETY, S.L., Appellees. |
| Court | Arizona Court of Appeals |
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
Appeal from the Superior Court in Maricopa County
The Honorable David King Udall, Judge
AFFIRMED
Jeffrey M. Zurbriggen PC, Phoenix
By Jeffrey M. Zurbriggen
Counsel for Appellant
By Amanda Adams
Counsel for Appellee Department of Child Safety
MEMORANDUM DECISIONJudge Maria Elena Cruz delivered the decision of the Court, in which Presiding Judge Jennifer B. Campbell and Judge James B. Morse Jr. joined.
¶1 Aaron L. ("Father") appeals the superior court's order terminating his parental relationship to his child, S.L. For the following reasons, we affirm.
¶2 Father and Kelley L. ("Mother") are the natural parents of S.L., born in June 2015. The Department of Child Safety ("DCS") became involved with the child after Mother tested positive for methamphetamine at S.L.'s birth. Mother has mental-health and substance-abuse issues. DCS was also concerned that Father was abusing substances. DCS offered the parents services which they engaged in, satisfying DCS's concerns. S.L. went home from the hospital with Mother and Father.
¶3 In July 2016, Mother stopped taking her medication, causing a psychotic episode in which she attacked Father while he was holding S.L. Mother was hospitalized and complied with mental-health treatment. Father told DCS he would not allow Mother unsupervised contact with S.L. Therefore, DCS initiated an in-home dependency.
¶4 Over the next month, however, Mother did not adhere to her mental-health treatment, failed to submit to a drug test, and was arrested for assaulting Father. Additionally, Father refused to submit to a drug test and allowed Mother back into the home despite concerns about her mental-health and domestic violence. DCS took custody of S.L. in mid-August and filed a dependency petition. Although DCS later referred Father for services, he refused to participate, save for a few visits with S.L.
¶5 The court issued a notice of the preliminary protective hearing, warning Father:
You should be represented by an attorney at this hearing. If you cannot afford an attorney, the Court will decide if you qualify financially for a court appointed attorney, and youmight be required to contribute to the cost of your attorney. A lawyer has been conditionally appointed to represent you, but you MUST COMPLETE the attached Financial Affidavit to see if you are eligible for a court-appointed attorney. If you plan to hire your own attorney at your own expense, he or she should attend the court conference and hearing with you.
Father then attended the preliminary protective hearing and signed a "Form 1 Notice to Parent in Dependency Action," which further informed him of his legal rights, including "[t]he right to counsel, including court appointed counsel if you are indigent." Despite this, Father never filed a financial affidavit. Instead, Father hired private counsel in August 2016. He stopped attending court hearings after October.
¶6 In July 2017, the court found S.L. dependent and set a case plan of family reunification, concurrent with severance and adoption. The next month, the court allowed Father's private counsel to withdraw and appointed him new counsel "subject to Father filing" a financial affidavit. Still, Father did not file an affidavit, attend court hearings, or otherwise participate in the case. The court, therefore, relieved his appointed counsel in December 2017.
¶7 In February 2018, the court changed the case plan to severance and adoption and DCS moved to terminate Father's parental rights under the statutory grounds of abandonment and fifteen-month out-of-home placement. By May, DCS was unable to personally serve Father, so the court allowed DCS to serve him "by [first] class mail with no signature required" and by "posting notice upon [F]ather's believed residence." DCS then sent Father notice through certified mail (which he did not claim) and by posting a notice on the door of his last-known address.
¶8 Father appeared at the pretrial conference on June 19, 2018. At this hearing, the court found service was incomplete and again ordered DCS to serve Father via first class mail at his last known address. Father told the court he "will be filing a change of address . . . within the next 30 days." The court encouraged him to notify DCS and the court of any address change.
¶9 The court also informed Father that he had "a right to an attorney, although [appointment] will require a financial affidavit." In fact, an attorney from the Office of Public Defense Services was present, but stated that he was "not appointed on this" matter and "was just asked to step in." The attorney further stated that "Father . . . instructed me not tospeak on his behalf, so it doesn't appear that he's wanting counsel." Likewise, Father told the court,
¶10 At that point, the court warned Father:
Although you would have an absolute right to represent yourself, I would strongly discourage you from doing that. Let me explain why. As a self-represented party, you are required to comply with all rules. The Court is not permitted to give you any leeway. They do hold you to . . . the same standard as they would an attorney. So I would strongly discourage you from doing that. However, . . . I will permit you to represent yourself or allow you to retain private counsel.
¶11 Finally, the court set the initial termination hearing in Father's presence, allowed him to appear telephonically at that hearing, and provided him the phone number to do so. The court also gave Father a "Form 3" that "set forth [his] rights and . . . responsibilities in this case" and "contain[ed] the dates of the next hearing." At the end of the pretrial conference, the court asked Father, "is there anything that you want to say to the Court today?" And Father responded, "Not today."
¶12 The day after the pretrial conference, DCS mailed, by first class mail, a copy of the termination motion, notice of hearing, and acceptance and waiver to Father's last-known address. Yet, Father did not appear or call into the initial severance hearing. Nor did privately retained counsel appear on his behalf. The court found Father lacked good cause for his absence and proceeded with an evidentiary hearing on the termination motion. Ultimately, the court terminated Father's parental relationship on the grounds alleged. Father appealed the termination order. We have jurisdiction pursuant to the Arizona Constitution Article 6, Section 9, and Arizona Revised Statutes ("A.R.S.") sections 8-235(A), 12-120.21(A)(1), and -2101(A)(1).
¶13 On appeal, Father contends that (1) DCS failed to properly serve him with the termination motion and (2) the court erred by not appointing him counsel and by finding that he had waived counsel without expressly ascertaining that decision was done knowingly, intelligently, andvoluntarily.1 We review the trial court's determination that a parent has waived the right to counsel for an abuse of discretion. State v. Gunches, 225 Ariz. 22, 24, ¶ 8 (2010). However, we review constitutional issues and mixed questions of fact and law de novo. See In re Andrew C., 215 Ariz. 366, 367, ¶ 6 (App. 2007); Willie G. v. Ariz. Dep't of Econ. Sec., 211 Ariz. 231, 233, ¶ 8 (App. 2005).
¶14 The objective of due process is fundamental fairness, and it requires that a party be given reasonable notice and an opportunity to be heard in a meaningful time and a meaningful manner. See J.D.S. v. Franks, 182 Ariz. 81, 95 (1995); State v. Melendez, 172 Ariz. 68, 71 (1992); Pima Cty. Juv. Action No. S-949, 131 Ariz. 100, 101 (App. 1981). "The [juvenile] court lacks jurisdiction to enter a judgment adverse to a party when there is a lack of proper service on that party." Maricopa Cty. Juv. Action No. JS-5860, 169 Ariz. 288, 291 (App. 1991). "Whatever method of service is utilized, it must give notice sufficient to meet the requirements of due process." Id. at 290. That is, notice must be "reasonably calculated, under all the circumstances to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Blair v. Burgener, 226 Ariz. 213, 219, ¶ 19 (App. 2010).
¶15 According to Father, the court erred in finding that DCS had properly served the termination motion by mailing it to his last-known address. Father argues DCS's service did not conform with Arizona Rules of Civil Procedure ("Rule") 4.1 and 4.2, and "would not effectuate any type of possible notice." Because DCS moved, rather than petitioned, for termination of Father's relationship, the applicable rule is Ariz. R. Civ. P. 5(c). Compare Ariz. R.P. Juv. Ct. 64(D)(2) () with Ariz. R.P. Juv. Ct. 64(D)(3) ().2
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