Opinion
No. 2 CA-JV 2015-0044
06-30-2015
MELINDA P., Appellant, v. DEPARTMENT OF CHILD SAFETY AND M.P., Appellees.
COUNSEL Rosemary Gordon Pánuco, Tucson Counsel for Appellant Mark Brnovich, Arizona Attorney General By Erika Z. Alfred, Assistant Attorney General, Tucson Counsel for Appellee Department of Child Safety
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f); Ariz. R. P. Juv. Ct. 103(G).
Appeal from the Superior Court in Pinal County
No. JD201200221
The Honorable Brenda E. Oldham, Judge
The Honorable Henry G. Gooday Jr., Judge
AFFIRMED
COUNSEL Rosemary Gordon Pánuco, Tucson
Counsel for Appellant
Mark Brnovich, Arizona Attorney General
By Erika Z. Alfred, Assistant Attorney General, Tucson
Counsel for Appellee Department of Child Safety
MEMORANDUM DECISION
Presiding Judge Kelly authored the decision of the Court, in which Judge Howard and Judge Vásquez concurred. KELLY, Presiding Judge:
Introduction
¶1 Melinda P. appeals from the juvenile court's February 2015 order terminating her parental rights to her daughter, M.P., born in 2013, on the grounds of nine- and fifteen-month out-of-home placement, after a termination hearing held in her absence. See A.R.S. § 8-533(B)(8)(a), (c). The juvenile court also terminated the parental rights of M.P.'s father, S.L. He is not a party to this appeal.
¶2 On appeal, Melinda argues the juvenile court abused its discretion and violated her due process rights because it failed to find that she had received notice of the hearing, had been properly served, and had been previously admonished regarding the consequences of her failure to appear. We limit our recitation of the facts to those required to address this issue, most of which pertain to the unusual procedural history in this case, and we affirm the court's termination order.
Facts and Procedural Background
¶3 In December 2012, the Department of Child Safety (DCS) took temporary custody of Melinda's three older children based on allegations that Melinda suffered from substance abuse and mental illness and had failed to provide for the children's basic needs, had physically abused them, and had failed to protect them from sexual abuse. The juvenile court adjudicated the children dependent, and DCS provided both parents with reunification services.
DCS has been substituted for the Arizona Department of Economic Security (ADES) in this matter. See 2014 Ariz. Sess. Laws 2d Spec. Sess., ch. 1, §§ 6, 20, 54; Ariz. R. Civ. App. P. 27; Ariz. R. P. Juv. Ct. 103(G). For simplicity, references to DCS encompass both ADES and Child Protective Services, formerly a division of ADES.
¶4 In July 2013, while those dependency proceedings were pending, Melinda gave birth to M.P., who tested positive for morphine exposure. DCS took custody of M.P. and filed a petition alleging her dependency based on her pre-natal exposure to opiates and Melinda's history of substance abuse, mental illness, and inability to provide for or protect her children. The court adjudicated M.P. a dependent child in September 2013.
¶5 At a permanency hearing on April 16, 2014, the juvenile court changed the case plan goal to severance and adoption and directed DCS to file a motion to terminate Melinda and S.L.'s parental rights to all four children. That same day, the court scheduled an initial termination hearing on May 28, a mediation and pretrial conference on July 1, and a termination adjudication hearing on July 18. Melinda signed a copy of Form 3, Ariz. R. P. Juv. Ct., confirming she had received this approved "Notice to Parent in Termination Action." Form 3 apprised her of the above-scheduled dates and informed her of her rights to counsel, cross-examination of adverse witnesses, compulsory process, and a trial by the court. The form also included the following admonition:
You are required to attend all termination hearings. If you cannot attend a court hearing, you must prove to the Court that you had good cause for not attending. If you fail to attend the initial Termination Hearing, Termination Pre-trial Conference, Status Conference, or Termination Adjudication Hearing without good cause, the Court may determine that you have waived your legal rights and admitted the grounds alleged in the motion/petition for
termination. The hearings may go forward in your absence, and the Court may terminate your parental rights to your child based on the record and evidence presented.
¶6 On May 6, 2014, DCS filed a motion to terminate both parents' rights to their three older children—but not their rights to M.P.—and filed a separate motion asking the court to "reconsider the change in [M.P.'s] case plan to severance and adoption." In its motion for reconsideration, DCS asked the court to "reaffirm" a case plan of family reunification with respect to M.P., stating it was "not able to allege a ground for termination" of S.L.'s parental rights to M.P. and it did not wish to "bifurcate" the case plan and engage in separate proceedings with respect to Melinda and S.L.
In noting M.P.'s placement in court-ordered care for "approximately nine months" and S.L.'s "participation in ongoing counseling," DCS appears to have been referring to the nine-month time-in-care ground for termination in § 8-533(B)(8)(a), which requires proof that a "parent has substantially neglected or wilfully refused to remedy the circumstances" causing an out-of-home placement for nine months or longer.
¶7 Melinda did not attend the initial termination hearing on DCS's petition on May 28, 2014, and the juvenile court entered a "default" against her. Although Melinda appeared for the contested severance hearing on July 18, the court found she had failed to establish good cause for her previous absence and, in an order entered on September 5, 2014, it terminated her parental rights to her older three children based on the record and evidence presented. This court affirmed the court's termination order on appeal. See Melinda P. v. Dep't of Child Safety, No. 2 CA-JV 2014-0112 (memorandum decision filed Jan. 16, 2015).
As we have noted previously, juvenile courts frequently refer to a default judgment in termination proceedings to identify a "waiver of rights" caused by a parent's failure to appear absent "good cause" shown. See Christy A. v. Ariz. Dep't of Econ. Sec., 217 Ariz. 299, ¶ 14, 173 P.3d 463, 468 (App. 2007), citing A.R.S. § 8-537(C); Ariz. R. P. Juv. Ct. 66(D)(2). --------
¶8 On September 15, 2014, DCS filed a motion for a status review hearing to "clarify[] the record and address[] permanency" for M.P. At a status hearing on October 15, DCS told the juvenile court it believed a case plan of severance and adoption had become appropriate for M.P., and the court denied DCS's previous request to reconsider that case plan, noting it had ordered M.P.'s case plan changed to severance and adoption on April 16, and had, on April 16, ordered DCS to file a motion to terminate both parents' rights to M.P., as well as to their other three children. The court entered another order directing DCS to file a motion to terminate the parents' rights to M.P. and scheduled a permanency review hearing for November 12.
¶9 On November 4, 2014, DCS filed a termination motion pertaining to M.P. and a notice of the November 12 hearing. On November 5, DCS filed an addendum report informing the court, "[I]t has been reported that [Melinda] is now living in Iowa." Melinda did not appear on November 12, or on subsequent, scheduled court dates.
¶10 At an initial termination hearing on December 3, 2014, DCS asked the juvenile court to "default" Melinda, to "preserve her non-appearance," and to "find that no good cause has been presented" for her absence. Her attorney objected. He acknowledged that Melinda had waived personal service for the dependency, but he told the court, "I don't show anything, at least in my file, I could be missing it, that she was served with the severance [motion]." The court responded that Melinda had been properly served through counsel, because she had already appeared in the proceedings. The court then "enter[ed] a default termination of parental rights as to [Melinda] subject to testimony being taken" and scheduled a pretrial conference for S.L. on January 14, 2015, stating, "[I]f [S.L.] fails to appear, the Court will go forward in his absence, including entering a default and taking testimony on that day as to both parents." When neither parent appeared on January 14, 2015, the court proceeded with the termination adjudication hearing, received evidence, and granted DCS's motion as to both parents.
¶11 In a signed termination order filed on February 13, 2015, the juvenile court found Melinda previously had been admonished about the need to attend all court hearings, that her "failure to appear could result in a finding that [she] ha[d] waived her legal rights, [and] admitted the allegations in the motion," and "that the Court could proceed with termination of her parental rights" in her absence, "based upon the record presented." The court found Melinda received such notice "[o]n July 29, 2013 and September 24, 2013, via Form 1[,] and on November 4, 2014," when she was served, through counsel, with the termination motion and hearing notice pertaining to M.P. The court also concluded service of the motion and hearing notice constituted "proper legal notice" of the termination proceedings.
Discussion
¶12 Rule 65(C)(6)(c), Ariz. R. P. Juv. Ct., provides as follows:
If the parent . . . fails to appear at the initial termination hearing without good cause shown and the court finds the parent . . . had notice of the hearing, was properly served pursuant to Rule 64 and had been previously admonished regarding the consequences of failure to appear, including a warning that the hearing could go forward in the absence of the parent . . . and that failure to appear may constitute a waiver of rights and an admission to the allegations contained in the termination motion . . . , the court may proceed with the adjudication of termination based upon the record and evidence presented if the moving party or petitioner has proven grounds upon which to terminate parental rights. The court shall enter its findings
and orders pursuant to Rule 66[, Ariz. R. P. Juv. Ct.]
¶13 The juvenile court has broad discretion in determining whether a party has failed to appear at a hearing without good cause, and we will not reverse a court's determination that good cause has not been shown unless that determination was "'manifestly unreasonable.'" Adrian E. v. Ariz. Dep't of Econ. Sec., 215 Ariz. 96, ¶ 15, 158 P.3d 225, 230 (App. 2007), quoting Lashonda M. v. Ariz. Dep't of Econ. Sec., 210 Ariz. 77, ¶ 19, 107 P.3d 923, 929 (App. 2005). "The interpretation of a court rule presents a question of law that we review de novo." Id. ¶ 9.
¶14 Melinda "concedes that service was [made] in accordance with Rule 64(D)(2)," Ariz. R. P. Juv. Ct. That rule provides that a "motion for termination and notice of hearing shall be served by the moving party upon the parties . . . pursuant to Rule 5(c), Ariz. R. Civ. P.," and Rule 5(c), in turn, requires that service upon a represented party "must be made" upon his or her attorney unless otherwise ordered by the court. And she does not dispute that the notice of hearing, served through counsel, contained the same admonishments she acknowledged receiving when she signed Form 3 on April 16, 2014, as required by Rule 64(D)(2).
¶15 Although her argument is not entirely clear, Melinda appears to suggest a distinction between "service" and "legal notice," on the one hand, and "actual notice" or "receipt" on the other, and she asserts her due process rights were violated because the juvenile court's ruling did not contain express findings "that she received notice of the motion for termination and the hearing date" or that "she previously received the Form 3 admonishment of the consequences for failing to appear." She also maintains she did not receive "constitutionally adequate notice" because "some evidence" in the record suggests she had moved out of state before the motion was served and, she argues, she therefore may not have had actual notice of the hearing date or the Form 3 admonishments filed with the motion to terminate her parental rights to M.P.
Express Findings
¶16 Melinda is correct that when a juvenile court terminates a parent's rights in absentia, Rule 65(C)(6)(c) requires that its order include findings that a parent "had notice of the hearing, was properly served pursuant to Rule 64 and had been previously admonished regarding the consequences of failure to appear." But when a party fails to object below to an alleged lack of detail in the court's findings, the issue is deemed waived, and we will not ordinarily consider it on appeal. Christy C. v. Ariz. Dep't of Econ. Sec., 214 Ariz. 445, ¶ 21, 153 P.3d 1074, 1081 (App. 2007). As the court explained in Christy C., "[A] party may not 'sit back and not call the trial court's attention to the lack of a specific finding on a critical issue, and then urge on appeal that mere lack of a finding on that critical issue as a ground[] for reversal.'" Id., quoting Bayless Inv. & Trading Co. v. Bekins Moving & Storage Co., 26 Ariz. App. 265, 271, 547 P.2d 1065, 1071 (1976) (alterations added). Melinda was afforded ample opportunity to object to the court's findings of fact and conclusions of law, but did not do so.
¶17 Assuming that fundamental error review otherwise would be available for an unpreserved claim of error, Melinda has waived that review by failing to argue that the juvenile court's alleged omission of specific findings constituted fundamental, prejudicial error. See Monica C. v. Ariz. Dep't of Econ. Sec., 211 Ariz. 89, ¶ 23, 118 P.3d 37, 42 (App. 2005) (applying fundamental error doctrine to termination of parental rights); State v. Moreno-Medrano, 218 Ariz. 349, ¶ 17, 185 P.3d 135, 140 (App. 2008) (failure to allege fundamental error on appeal waives argument). In any event, we discern no such prejudicial error.
¶18 As DCS points out, the juvenile court's order included findings regarding service of the termination motion and hearing notice and the required admonishments, as well as a conclusion of law that Melinda had "received proper legal notice of these proceedings" through service upon her attorney. As we explain below, these findings are supported by the record and were sufficient to satisfy Rule 65(C)(6)(c) and due process requirements.
Termination Motion
¶19 Rule 65(C)(6)(c) requires a juvenile court to find, as the court did here, that a motion for termination "was properly served" before it may terminate a parent's rights in absentia. Although the rule contains no reference to a parent's actual notice or receipt of the motion, and despite her concession that she was properly served through counsel, Melinda appears to argue due process required an additional finding that she had actual notice of the motion.
¶20 In Mara M. v. Arizona Department of Economic Security, 201 Ariz. 503, ¶ 22, 38 P.3d 41, 45 (App. 2002), we explained personal service is not required when a motion to terminate parental rights is filed, pursuant to A.R.S. §§ 8-862(D) and 8-863(A), in the course of ongoing dependency proceedings, because the juvenile court's jurisdiction already has been established, and a termination motion is a matter "in furtherance of the exercise of the . . . court's continuing authority" in those proceedings. We further concluded that service of a termination motion through a parent's attorney, as authorized by Rules 64(D) and 5(c), comports with due process when, like Melinda here, the parent had been put "on notice of the possibility that her parental rights . . . could be terminated and yet. . . had not contacted either her attorney or [DCS]" for several months. Id. We therefore rejected Mara M.'s argument that her due process rights were violated when a termination motion was served through her attorney, rather than personally or by publication. Id. ¶¶ 14, 28. Melinda does not attempt to distinguish Mara M., and its reasoning applies with equal force here.
Notice of Hearing
¶21 We recognize that Rule 65(C)(6)(c) requires the juvenile court to find a "parent . . . had notice of the hearing" before proceeding with a termination adjudication in her absence. But Melinda develops little argument in support of her assertion that the court erred in concluding "legal notice," through proper service, was sufficient to meet this requirement. See Ariz. R. P. Juv. Ct. 64(C) and (D) ("notice of hearing shall accompany the motion or petition for termination of parental rights" served on a parent).
¶22 Importantly, like Mara M., Melinda "has neither alleged that she lacked actual notice . . . nor claimed prejudice." Mara M., 201 Ariz. 503, ¶ 26, 38 P.3d at 45. Although her attorney suggested, on December 3, 2014, that Melinda had not been "served," he did not suggest she lacked actual notice. Nor did counsel assert, at the hearing on January 14, 2015, or in a subsequent post-judgment motion, that Melinda had no notice of prior hearings and so could show "good cause" for her absence. Ariz. R. P. Juv. Ct. 65(C)(6)(c); cf. In re Maricopa Cnty. Juv. Action No. JS-4942, 142 Ariz. 240, 241-42, 689 P.2d 183, 184-85 (App. 1984) (remanding case for hearing on adequacy of notice where father denied, in motion for rehearing, "he was ever advised of the [termination] hearing . . . by his lawyer or anyone else"). And, on appeal, Melinda asserts only that "[i]t is likely [she] had no notice of either the motion or the initial severance hearing date," "[b]ased on the information that [she] was not in Arizona" when the motion and notice of hearing were filed.
¶23 "Service of process refers to a formal delivery of documents that is legally sufficient to charge the defendant with notice of a pending action." Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 700 (1988) (recognizing "well-established" definition of service of process in Hague Service Convention). Absent contrary evidence, a court is entitled to rely on proper service to ascertain a party's notice of proceedings against him. Cf. Marks v. LaBerge, 146 Ariz. 12, 15, 703 P.2d 559, 562 (App. 1985) (burden on defaulted defendant to demonstrate "actual notice" of lawsuit came too late to timely answer; such information "uniquely within [his] knowledge and control"); Monica C., 211 Ariz. 89, ¶ 26, 118 P.3d at 43 (burden of proof on appellant to establish fundamental, prejudicial error).
Admonishments
¶24 Just as proper service was sufficient, in the absence of contrary evidence, to support the juvenile court's finding that Melinda had notice of the proceedings, it was sufficient to support the juvenile court's determination that she had been admonished, as required by Rule 65(C)(6)(c), through service of the notice of hearing. In addition, we agree with DCS that the Form 3 Melinda acknowledged receiving in April 2014 admonished her of the consequences of failing to appear in termination proceedings with respect to all of her children, including M.P., notwithstanding Melinda's assertion that the form applied only to her "other children." In its October 15 minute entry, the court clearly found that M.P.'s "change in case plan to severance and adoption was Ordered on April 16, 2014 and that the Court also Ordered [DCS] to file a Motion for Termination" of Melinda and S.L.'s rights to M.P. "at that time." And Melinda was present at the termination adjudication hearing for her other three children on July 18, 2014, when the court confirmed there was still "an ongoing case" with respect to M.P., and DCS informed the court it was not "at th[at] time" proceeding to terminate Melinda and S.L.'s parental rights to her. Like Mara M., Melinda "had notice that her rights were in jeopardy," Mara M., 201 Ariz. 503, ¶ 26, 38 P.3d at 45, and the court did not err in concluding she "had been previously admonished regarding the consequences of failure to appear." Ariz. R. P. Juv. Ct. 65(C)(6)(c).
Disposition
¶25 For the foregoing reasons, we affirm the juvenile court's order terminating Melinda's parental rights to M.P.