Aaron L. v. Dcs, S.L. ( 2019 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
AARON L., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, S.L., Appellees.
No. 1 CA-JV 18-0363
FILED 6-6-2019
Appeal from the Superior Court in Maricopa County
No. JD530222
The Honorable David King Udall, Judge
AFFIRMED
COUNSEL
Jeffrey M. Zurbriggen PC, Phoenix
By Jeffrey M. Zurbriggen
Counsel for Appellant
Arizona Attorney General’s Office, Mesa
By Amanda Adams
Counsel for Appellee Department of Child Safety
AARON L. v. DCS, S.L.
Decision of the Court
MEMORANDUM DECISION
Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Judge James B. Morse Jr. joined.
C R U Z, Judge:
¶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.
FACTS AND PROCEDURAL HISTORY
¶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 you
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Decision of the Court
might 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 to
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Decision of the Court
speak on his behalf, so it doesn’t appear that he’s wanting counsel.”
Likewise, Father told the court, “I really do not want an attorney. If I want
one . . . I’ll hire a private one.”
¶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).
DISCUSSION
¶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, and
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Decision of the Court
voluntarily.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).
I. Service of the Termination Motion
¶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) (applying Ariz. R. Civ. P. 5(c) to
motions for termination) with Ariz. R.P. Juv. Ct. 64(D)(3) (applying Ariz. R.
Civ. P. 4.1 or 4.2 to petitions for termination).2
1 Father does not challenge the court’s finding that he lacked good
cause for his absence from the initial termination hearing or the merits of
the termination order.
2 Father does not challenge service of the dependency petition. On
August 24, 2016, Father personally appeared at the preliminary protective
hearing and accepted service of the dependency petition, which initiated
these proceedings. Thus, Father was subject to the court’s continuing
authority under the ongoing dependency. See A.R.S. § 8-862.
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Decision of the Court
¶16 “The motion for termination of parental rights and notice of
hearing shall be served by the [petitioner] upon the parties . . . pursuant to
Rule 5(c), Ariz. R. Civ. P. at least ten days prior to the initial termination
hearing.” Ariz. R.P. Juv. Ct. 64(D)(2). Arizona Rule of Civil Procedure 5(c)
states,
(2) [a] document is served . . . by any of the following:
(A) handing it to the person;
(B) leaving it:
(i) at the person’s office with a clerk or other
person in charge or, if no one is in charge, in a
conspicuous place in the office; or
(ii) if the person has no office or the office is
closed, at the person’s dwelling or usual place
of abode with someone of suitable age and
discretion who resides there;
(C) mailing it by U.S. mail to the person’s last-known
address—in which event service is complete upon
mailing. . . .
Here, DCS mailed Father notice more than ten days before the initial
termination hearing.
¶17 Using language from Rule 4.1(k), Father argues that any
reason for alternative service dissipated when he personally appeared at
the pretrial conference in June 2018 and that he should have been personally
served after that time, not served through mail. But DCS complied with
Rule 5(c)’s directive to serve Father “under this rule by any of the
following,” including “mailing it by U.S. mail to the person’s last-known
address.” (Emphasis added.) By complying with Rule 5(c), DCS properly
served Father under Ariz. R.P. Juv. Ct. 64(D)(2).3
3 Father argues that DCS did not include a notice of hearing in the
record. DCS’s affidavit avowed that the notice of hearing, although not
filed in the record, was mailed along with the motion for termination. Ariz.
R.P. Juv. Ct. 64(C) (“A notice of hearing shall accompany the motion . . . for
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Decision of the Court
¶18 Finally, the record does not support Father’s contention that
he lacked actual notice of the initial termination hearing. At the pretrial
conference, the court told Father the date and time of the initial termination
hearing, authorized him to appear telephonically, gave him the phone
number for the hearing, and gave Father an opportunity to ask questions.
The court also provided Father with a Form 3, which confirmed the date
and time of the hearing and warned him that a failure to appear could result
in termination of his parental rights.
¶19 Father claims that DCS was required to conduct an updated
diligent search before serving him by mail. Father concedes that he still
resided at the address where DCS mailed his notice until he was evicted on
June 18, 2018—one day before the pretrial conference that he attended. Two
days later DCS mailed notice. Despite this, Father made no mention of his
eviction during the hearing. Instead, Father simply told the court “I will be
filing a change of address soon . . . [i]n the next 30 days,” and the court twice
encouraged Father to notify DCS and the court of his new address. Father
did not do so.
II. Right to Counsel
¶20 Father next argues that the superior court erred by not
appointing him counsel and that his “counsel was precluded from
participating in the termination proceedings.”
¶21 Parents have a due process and statutory right to counsel in a
severance proceeding. A.R.S. § 8-221(B) (“If a . . . parent . . . is found to be
indigent and entitled to counsel, the juvenile court shall appoint an attorney
to represent” him.); Ariz. R.P. Juv. Ct. 38(B); Daniel Y. v. Ariz. Dep’t of Econ.
Sec., 206 Ariz. 257, 260, ¶¶ 14-15 (App. 2003) (due process affords parents
in termination matters a right to counsel). Although a parent’s right to
counsel in a severance proceeding “is not co-extensive with a criminal
defendant’s right to counsel under the Sixth Amendment,” it is still “of
constitutional dimension.” Daniel Y., 206 Ariz. at 260, ¶¶ 14-15.
¶22 Generally, a parent’s waiver of constitutional rights must be
done intelligently, knowingly, and voluntarily. See Manual M. v. Ariz. Dep’t
of Econ. Sec., 218 Ariz. 205, 211, ¶ 20 (App. 2008); see also State v. Avila, 127
Ariz. 21, 25 (1980) (“[I]n any proceeding involving the surrender of
termination of parental rights and shall advise the parent . . . of the location,
date and time of the initial termination hearing.”).
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Decision of the Court
Constitutional rights, it must appear from the record that the waiver was
knowingly, intelligently and voluntarily made. Such condition of mind,
moreover, will not be presumed from a silent record.”). “[T]he standard for
waiver of counsel under [A.R.S. § 8-221(B)] is not different [from] any other
constitutional right” and its waiver “is not easily presumed.” Daniel Y., 206
Ariz. at 260-61, ¶ 15. Before a parent waives his right to counsel, the
superior court must advise him of “the dangers of self-representation, and
the difficulties involved in defending oneself without formal legal
training.” Id. at 261, ¶ 15. However, “the absence of an explicit finding of
a knowing, intelligent, voluntary waiver of counsel” is not “reversible error
where the record as a whole supported a finding of constitutional waiver.”
State v. McLemore, 230 Ariz. 571, 578 n.12, ¶ 23 (App. 2012).
¶23 Here, the record shows that Father was repeatedly notified of
his right to appointed counsel, conditioned on his submitting a financial
affidavit. He did not complete a financial affidavit, and therefore, never
established indigency or a corresponding right to appointed counsel. See
Morger v. Superior Court, 130 Ariz. 508, 509-10 (App. 1981) (discussing
factors for whether a party is indigent and entitled to appointed counsel).
Instead, Father unequivocally stated at the pretrial conference that he did
not want counsel appointed on his behalf.
¶24 The superior court did not then prevent Father from retaining
private counsel or hinder that counsel from effectively participating in the
hearing. To be sure, Father hired private counsel in the past and was
represented (by both private and appointed counsel) between August 2016
and December 2017. Yet, Father stated, “I really do not want an attorney.
If I want [an attorney], I’ll . . . hire a private one,” and the court replied it
would “permit [Father] to represent [himself] or allow [him] to retain
private counsel.” Father did not hire an attorney afterwards. The court
therefore reasonably concluded that Father “wishes to waive
representation through counsel in this matter.”4
¶25 Father argues the court erred by not expressly finding that his
decision to waive counsel and represent himself was done knowingly,
intelligently, and voluntarily. But the record implicitly supports such a
finding. McLemore, 230 Ariz. at 578 n.12, ¶ 23. The court warned Father of
4 Father also asserts that “advisory counsel at a minimum should have
been appointed.” However, he provides no authority showing Father was
entitled to advisory counsel. Cf. Ariz. R. Crim. P. 6.1(c) (“After a defendant
waives the right to counsel, the court may appoint advisory counsel for the
defendant at any stage of the proceedings.”). (Emphasis added.)
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Decision of the Court
the dangers of self-representation, and “strongly discourage[d]” him from
doing so. Father did not hire private counsel, provide the requisite financial
affidavit or request court appointed counsel after the court’s explanation
and warning.
¶26 Moreover, the record shows that Father understood the
proceedings and advocated for himself. As a medical doctor, Father is
highly educated and knew the seriousness of the proceedings because by
the time of the pretrial conference, S.L.’s dependency had been ongoing for
almost three years. Father advocated for himself at the pretrial conference
by his clear, intelligent, voluntary and repeated refusals of court-appointed
counsel. He also informed the court that he had “not been avoiding”
service, explaining that he had “freely emailed [DCS’s] server a couple
times about other issues.” When the court ordered DCS to serve Father
through the mail, he informed the court that he “will be filing a change of
address soon . . . [i]n the next 30 days.” When the court set the initial
termination hearing, Father stated, “I’m in Yuma, Arizona that day before
and the day of in the” emergency room. Because of this, the court explained
how Father could appear telephonically, and he replied, “Okay. Thank
you.”
¶27 Father suggests that the waiver should not be implied because
DCS had alleged substance-abuse concerns in the dependency petition and
alleged that he failed to participate in substance-abuse testing in the
termination motion. However, the record shows that Father was coherent
and able to understand the proceedings and respond appropriately to the
court. He also consistently denied using illegal substances during the
dependency. Finally, the court gave Father a chance to speak at the end of
the hearing, but he did not raise any questions or issues.
CONCLUSION
¶28 We affirm the superior court’s order terminating Father’s
parental relationship.
AMY M. WOOD • Clerk of the Court
FILED: JT
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