Appeal in Maricopa County, Juvenile Action No. JS-734, Matter of

• Decision Date: 09 December 1975
• Docket Number: No. 1,JS--734,CA-JUV,1
• Citation: 543 P.2d 454,25 Ariz.App. 333
• Parties: In the Matter of the APPEAL IN MARICOPA COUNTY, JUVENILE ACTION NO.32.
• Court: Arizona Court of Appeals

Page 454

543 P.2d 454

25 Ariz.App. 333

In the Matter of the APPEAL IN MARICOPA COUNTY, JUVENILE ACTION NO. JS--734.

No. 1 CA-JUV 32.

Court of Appeals of Arizona, Division 1, Department B.

Dec. 9, 1975.

Rehearing Denied Jan. 9, 1976.

Review Denied Feb. 10, 1976.

I. Harrison Levy, Phoenix, for appellant

Richard A. Nulle, Scottsdale, for appellees.

OPINION

HAIRE, Chief Judge.

On this appeal from an order entered by the Maricopa County Juvenile Court terminating the parent-child relationship between a mother and her eleven year old son, the mother contends that the court lacked In personam jurisdiction over her, that such jurisdiction was essential to the validity of the proceedings, and that therefore the court should have dismissed the petition for termination. In the alternative, the mother contends that the evidence was insufficient to support the court's order terminating the relationship.

The background facts are as follows. In 1962, the mother and the father of the child, although unmarried, were cohabiting in Geneva, Switzerland. They were both English citizens. The mother became pregnant, and about two months later returned to her parents' home in London, England for the purpose of giving birth to the child. Shortly thereafter, she called the father from London and stated that she wanted to go to Stockholm for an abortion, and asked that he send her funds for that purpose. After determining that she was insistent on having the abortion the father sent her 1000 pounds (approximately $2800 at that time), and assumed that she had proceeded as she had indicated.

About two years later, when the father was in London, a mutual friend of the father and mother told the father that the mother had not had the abortion, but rather had given birth to the child. He then went to see the mother and was told by her that she 'had given the child to her parents'. The father told her that he would be willing to be responsible for the child from that point on and do whatever was proper for the child. His offer was refused, but he was allowed to visit the child at the grandparents' home, with the strict understanding that he was not to tell the child of his parental relationship, otherwise he would not be allowed to see the child again.

The child grew up in his grandparents' household, believing that they were his parents and that his mother was his sister. While his mother also lived in London, she had little contact with him, but would visit her parents about every three weeks or so. She never sent any letters or gave any gifts to her son. The child did not know the true identity of his father, but considered him to be a close friend of the family or a cousin. Prior to the time the father moved to Arizona, the child would spend some nights and weekends with him, and 'go out to places with him'. After the father moved to Arizona, he maintained a close relationship with the child, sending him letters, gifts, money, and telephoning him from time to time.

In the summer of 1971 the father made arrangements for the child, then eight years old, to spend the summer vacation with him in Scottsdale, Arizona. These arrangements were made with the grandparents. The mother knew about this visit, but was not consulted directly by the father, inasmuch as all decisions concerning the child had in the past been made by the grandparents. At that time the child still thought that his grandparents were his true parents. In making arrangements for this trip, the father, for the first time, discovered that the child's birth certificate listed his father as 'unknown', rather than naming him as the father.

After the summer of 1971, the child returned to England, again to reside with his purported parents (actually grandparents). In the summer of the following year, 1972, the father asked the grandparents if the child could come to Arizona to reside permanently with him. They consented, and the child has resided in Arizona with his father since 1972. The record does not reflect whether the mother was consulted by the grandparents prior to the child's departure for Arizona for the 1972 trip, or whether she had any objections thereto.

In August of 1972, after the child came to Arizona for permanent residence, the father told him that he was his father and also that the child's supposed sister was his mother. About two years later, in May of 1974, the present proceedings were initiated by the father and his wife, seeking to terminate the parental rights of the mother on the ground that she had made no effort to maintain a parent-child relationship and had therefore abandoned him. Their purpose was to go forward with adoption proceedings once the termination was granted.

THE COURTS JURISDICTION--STATUTORY REQUIREMENTS

The mother initially contends that the Arizona statutes, separate and apart from constitutional considerations, require that the Court obtain In personam jurisdiction over her prior to a termination of her parental rights.

A.R.S. § 8--533 provides in part:

'Any person or agency that has a legitimate interest in the welfare of a child, including, but not limited to, a relative, foster parent, physician, department of welfare, or a private licensed child welfare agency, may file a petition for the termination of the parent-child relationship if one or more of the following grounds exist:

'1. That the parent has abandoned the child or that the parent has made no effort to maintain a parental relationship with the child.'

A.R.S. § 8--535 requires that notice be given as follows:

'A. After the petition has been filed, the court shall set a time and place for hearing, and shall cause notice thereof to be given to . . . the parents of the child . . ..'

'B. Notice shall be given by personal service when possible, or by any other method authorized in the service of process in civil actions.'

Notice of the petition and time and place for hearing was given to the mother by registered mail, in accordance with the provisions of Rule 4(e)(2), Rules of Civil Procedure, 16 A.R.S., and an affidavit and return receipt evidencing such service was filed with the court. The mother then contacted a firm of London solicitors who made known to petitioner's counsel and the Juvenile Court the mother's desire to contest the proceedings, and further requested that the Juvenile Court appoint Arizona Counsel for the mother in accordance with A.R.S. § 8--225. ¹ The court did appoint Arizona counsel for the mother, and at the time set for hearing, appointed counsel made a 'special appearnace' to present argument on a motion to dismiss for lack of jurisdiction over the person of the mother. ² The trial court denied the motion to dismiss, and, upon stipulation by petitioners' counsel that further participation by the mother's counsel would not prejudice the mother's jurisdictional claim, the hearing proceeded on the merits, resulting in the entry of an order by the court finding that 'the natural mother, has not within the meaning of A.R.S. § 8--533, made an effort to maintain a parental relationship with (the child).' This was followed by an order that the 'parent-child relationship heretofore existing between . . . the natural mother, and (the child), is hereby terminated.'

Although appellees contend otherwise, we agree with the appellant-mother that service of the petition and notice of hearing in accordance with Rule 4(e)(2), Rules of Civil Procedure, could not, under the facts of this case, constitute personal service so as to give the trial court In personam jurisdiction over the mother. She had never been in this jurisdiction, had no contacts with it, and, notwithstanding the child's presence here and appellees' tenuous arguments in that regard, had not 'caused an event to occur in this state out of which the claim . . . arose.' See generally, Houghton v. Piper Aircraft Corporation, 112 Ariz. 365, 542 P.2d 24 (filed November 6, 1975); Power Horn Nursery, Inc. v. Soil and Plant Laboratory, Inc., 20 Ariz.App. 517, 514 P.2d 270 (1973). Cf. Bebeau v. Berger, 22 Ariz. 522, 529 P.2d 234 (1975).

Having concluded that the trial court lacked In personam jurisdiction over the mother, we are faced with the problem of determining whether the court could proceed with the termination of the parent-child relationship in the absence of In personam jurisdiction over the parent whose rights were being terminated. The problem is twofold. First, whether the statutes purport to give the court the authority to proceed in the absence of In personam jurisdiction, and, second, if they do purport to give such authority to the court, can this constitutionally be done? Concerning the first question, appellant cites the language of A.R.S. § 8--535B requiring that 'Notice shall be given by personal service when possible, or by any other method authorized in the service of process in civil actions.' Appellant's counsel argues that the intent of the legislature in using this language was not merely to specify the manner of giving notice in the best manner possible so as to comply with due process dictates of decisions such as Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950), but, in addition, the intent was to limit the court's jurisdiction to those circumstances in which it could acquire In personam jurisdiction over a nonconsenting parent. Appellant thus argues senting parent. Appellant thus argues that notice effective to give In personam jurisdiction could not be had under Rule 4(e)(2), unless the absent parent had caused an event to occur in this state out of which the claim arose. In an attempt to bolster this argument, appellant contrasts the language of A.R.S. § 8--535B (quoted above) with the language of A.R.S. § 8--106C, ³ which, in appellant's opinion, does not require In personam jurisdiction so long as notice and a reasonable opportunity to be heard is afforded to the absent parent.

We find appellant's...