Hannah C. v. Angel C. ( 2022 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
HANNAH C., Appellant,
v.
ANGEL C., L.C., M.C., J.C., Appellees.
No. 1 CA-JV 22-0096
FILED 9-29-2022
Appeal from the Superior Court in Yavapai County
No. P1300SV202100029
The Honorable Anna C. Young, Judge
AFFIRMED
COUNSEL
Robert D. Rosanelli Attorney at Law, Phoenix
By Robert D. Rosanelli
Counsel for Appellant
Law Office of Florence M. Bruemmer PC, Anthem
By Florence M. Bruemmer
Counsel for Appellee Angel C.
MEMORANDUM DECISION
Judge Angela K. Paton delivered the decision of the Court, in which
Presiding Judge Maria Elena Cruz and Judge Peter B. Swann joined.
HANNAH C. v. ANGEL C., et al.
Decision of the Court
P A T O N, Judge:
¶1 Hannah C. (“Mother”) appeals the superior court’s judgment
terminating her parental rights to her minor children based on improper
service. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Mother and Angel C. (“Father”) were previously married and
have three children together. Mother and Father divorced in 2015, and, in
2018, the superior court awarded Father sole legal decision-making
authority over the children. The court further ordered that Mother was not
entitled to parenting time until she completed reunification services, but
Mother failed to engage in those services. In September 2021, Father
petitioned the superior court to terminate Mother’s parental rights under
Arizona Revised Statutes (“A.R.S.”) § 8-533(B)(1) (abandonment)
and -533(B)(3) (chronic abuse of alcohol or dangerous drugs).
¶3 The court set the initial hearing on Father’s petition for
October 2021. Father was required to serve Mother with notice of the
hearing, informing her (1) of the date, location, and time of the hearing, (2)
that the hearing may proceed in her absence, possibly resulting in
termination of her parental rights and (3) that failure to appear at the
hearing may be deemed an admission of the allegations in the petition. See
Ariz. R. P. Juv. Ct. 351(c), (d)(1)(A) (formerly cited as Ariz. R. P. Juv. Ct. 64).
¶4 A few weeks before the scheduled termination hearing,
Father requested a continuance because he had been unable to serve Mother
with notice of the proceedings. The court granted Father’s motion and
continued the hearing to December 2021.
¶5 Meanwhile, Father served Mother by publication, avowing
that was the best way to notify her of the termination hearing because she
was evading his “significant efforts” to personally serve her. Father’s
efforts included hiring a private investigator to perform a skip-trace to
locate Mother, which showed Mother was living in Sacramento, California,
and attempting to serve her eight times at that address. Father published
notice of the termination hearing in two newspapers: one in Sacramento,
where Mother apparently lived, and one in Yavapai County, where the
termination was pending.
¶6 Mother failed to appear at the initial termination hearing. The
superior court accepted Father’s affidavits, found Mother was properly
served by publication, and that she failed to appear. On its own motion,
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HANNAH C. v. ANGEL C., et al.
Decision of the Court
the superior court continued the hearing to January 2022, stating it would
feel “more comfortable” proceeding with the termination hearing if Mother
had an additional opportunity to participate. The court ordered Father to
both hang a notice of the continued hearing date on Mother’s front gate and
mail a copy of the notice to Mother’s address.
¶7 Father complied with the court’s order, but Mother
nevertheless failed to appear at the continued termination hearing. The
court found Mother’s failure to appear was an admission of the allegations
in the petition and proceeded with the termination hearing in her absence.
¶8 After hearing Father’s testimony, and statements from the
children and their attorney, the court terminated Mother’s parental rights.
The court found that Mother (1) abandoned the children and failed to
maintain a normal parental relationship with them for over six months and
(2) was unable to parent them due to alcohol and dangerous drug abuse
likely to continue for a prolonged period based on Mother’s past
unsuccessful attempts at treatment. The court further found that severance
was in the children’s best interests because it would free them for adoption
by their stepmother who had “functioned as [the children’s] mother” for
many years.
¶9 Four months after the court terminated her parental rights,
Mother moved to extend the deadline to appeal the termination. The court
granted Mother’s motion, and Mother appealed. We have jurisdiction
under A.R.S. §§ 8-235(A) and 12-2101(A)(1).
DISCUSSION
¶10 Mother argues the court lacked jurisdiction over the
proceedings and abused its discretion when it allowed service of process by
publication because Father did not mail her notice of the petition and
hearing until after service by publication had occurred. As relevant here,
Arizona Rule of Procedure for the Juvenile Court 351(d)(1)(B)(i) mandates
service in a termination case be conducted in compliance with Arizona
Rules (“Rule”) of Civil Procedure 4.2. Also as relevant here, Rule 4.2(f)(1)
permits service by publication when the person subject to service lives
outside of Arizona, intentionally avoided service of process, and service by
publication is the best means practicable to provide notice of the pending
case.
¶11 Indeed, Rule 4.2(f)(3) provides that “[i]f the serving party
knows the address of the person being served, it must, on or before the date
of first publication, mail to the person the summons and a copy of the
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HANNAH C. v. ANGEL C., et al.
Decision of the Court
pleading being served.” And here, Father knew Mother's address but did
not mail her a copy of the notice until after publication of the notice. But
any error was harmless and cured because when Mother failed to appear at
the initial hearing after being served by publication, the court continued the
hearing for an additional month to January 2022 and ordered Father to mail
Mother a copy of the petition and notice of the hearing. The court did not
proceed with the termination hearing until Father (1) made eight attempts
to have Mother personally served, (2) served Mother through publication,
(3) hung a copy of the petition and notice of hearing on Mother's gate, and
(4) mailed copies of the same to her home. The copy of the petition and
notice of hearing were hung on Mother’s gate and mailed on December 10,
2021—one full month before the hearing. Mother does not dispute that she
lived at that address during the month of December 2021 or that she
received either copy. Accordingly, the superior court did not abuse its
discretion by finding that Father complied with Rule 4.2(f) and that Mother
was properly served with notice of the termination proceeding and
hearings, and service was effectuated such that the court had jurisdiction
over the proceedings.
¶12 Mother also argues for the first time on appeal that Father did
not make diligent efforts to serve her with notice of the termination because
he “knew of [her] Facebook account or could have found it easily,” but
failed to contact her through social media. Mother, however, failed to move
to set aside the termination for lack of service in the superior court.
Accordingly, the superior court did not have an opportunity to consider
Mother’s argument about her Facebook account, and we decline to consider
this argument raised for the first time on appeal. See Louis C. v. Dep’t of Child
Safety, 237 Ariz. 484, 489, ¶ 20 (App. 2015) (citation omitted).
CONCLUSION
¶13 We affirm. We note that by failing to challenge the grounds
for termination or the court’s best interests findings, Mother has waived
those arguments. See Nelson v. Rice, 198 Ariz. 563, 567, ¶ 11 n.3 (App. 2000)
(a party’s failure to raise an argument in its opening brief waives the issue).
AMY M. WOOD • Clerk of the Court
FILED: JT
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