Allegra G. v. Dcs ( 2021 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
ALLEGRA G., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, G.K., G.K., L.K., C.K., C.K.,
Appellees.
No. 1 CA-JV 21-0221
FILED 12-9-2021
Appeal from the Superior Court in Maricopa County
No. JD40644
The Honorable Michael J. Herrod, Judge
AFFIRMED
APPEARANCES
Allegra G., Phoenix
Appellant
Arizona Attorney General’s Office, Tucson
By Dawn R. Williams
Counsel for Appellee Department of Child Safety
ALLEGRA G. v. DCS et al.
Decision of the Court
MEMORANDUM DECISION
Judge David B. Gass delivered the decision of the court, in which Presiding
Judge D. Steven Williams and Judge James B. Morse Jr. joined.
G A S S, Judge:
¶1 Mother challenges the superior court’s order finding her
children dependent. Because the superior court did not err, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 Mother is the biological parent of six children, one of whom
passed away. The Department of Child Safety (DCS) became involved after
police investigated to determine the cause of the child’s death. The five
children who are the subject of this matter were born and resided in
Arizona their entire lives. Father is not a party to this case.
¶3 DCS alleged mother did not provide children with basic
needs, such as medical care and proper education. It also reported mother’s
failure to take care of the children’s basic needs may stem from
undiagnosed mental-health issues. DCS subsequently removed the five
children from mother’s care and filed a petition stating the children were
dependent as to mother. The petition also alleged no extended family
members lived in the state and mother isolated herself and the children
from other family members.
¶4 Even before she was served, mother attempted to remove the
case to the federal district court in Arizona. Eight days later, the federal
district court remanded the case to the superior court.
¶5 Mother then moved to dismiss the case for lack of service. In
an unsigned order, the superior court denied mother’s motion to dismiss.
In a later unsigned order, the superior court struck mother’s motion to
dismiss. DCS then served mother in person on May 5 with the dependency
petition and notice of the June 22 initial hearing.
¶6 Before the hearing, mother filed a notice of appeal as to the
two orders regarding her motion to dismiss. This court dismissed those
notices for lack of jurisdiction, though dismissal occurred after the superior
court made the dependency finding at issue here.
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ALLEGRA G. v. DCS et al.
Decision of the Court
¶7 Mother failed to appear for the June 22 hearing. The superior
court found mother did not provide good cause for her absence. As a result,
the superior court found mother waived her right to present her arguments.
It also found the allegations in DCS’s petition to be true by a preponderance
of the evidence and found the children dependent.
¶8 Mother timely appealed. This court has jurisdiction under
article VI, section 9, of the Arizona Constitution, and A.R.S. §§ 12-120.21.A.1
and 12-2101.A.1.
ANALYSIS
¶9 Mother does not challenge the dependency findings, instead
she raises jurisdictional and due process arguments. Mother argues the
superior court had neither personal nor subject matter jurisdiction. We
disagree.
¶10 DCS relies on ARCAP 13(a)(7) to argue we should reject
mother’s claims because she failed to refer to the record and cite to
“supporting legal authority.” This court generally will not address
arguments parties fail to support with relevant legal authority. Melissa W.
v. Dep’t of Child Safety, 238 Ariz. 115, 117–18, ¶ 9 (App. 2015). DCS also notes
mother’s silence before the superior court waives her argument on appeal.
See Bennigno R. v. Ariz. Dep’t of Econ. Sec., 233 Ariz. 345, 349, ¶ 19 (App.
2013). Because mother did not raise the verification argument in the
superior court, this court need not address that issue here. See Regal Homes,
Inc. v. CNA Ins., 217 Ariz. 159, 171, ¶ 52 (App. 2007) (explaining parties
generally cannot raise issues for the first time on appeal). With that one
exception, we exercise our discretion and address the merits of mother’s
remaining claims. See Varco, Inc. v. UNS Elec., Inc., 242 Ariz. 166, 170, ¶ 12
n.5 (App. 2017).
I. Jurisdiction
¶11 This court reviews de novo whether the superior court has
subject matter jurisdiction and personal jurisdiction. Angel B. v. Vanessa J.,
234 Ariz. 69, 71, ¶ 6 (App. 2014) (subject matter jurisdiction); Ruffino v.
Lokosky, 245 Ariz. 165, 168, ¶ 9 (App. 2018) (personal jurisdiction). But this
court defers to the superior court’s findings of fact unless clearly erroneous.
Raymond F. v. Ariz. Dep’t of Econ. Sec., 224 Ariz. 373, 376, ¶ 13 (App. 2010).
¶12 Regarding subject matter jurisdiction, mother raises no
statutory defense to the superior court’s exclusive jurisdiction over her
children’s dependency action. Under the Uniform Child Custody
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ALLEGRA G. v. DCS et al.
Decision of the Court
Jurisdiction and Enforcement Act, Arizona has exclusive jurisdiction over
dependency matters involving children whose home state is Arizona.
A.R.S. § 25-1031.A.1. Arizona is a child’s home state if the child “lived with
a parent or a person acting as a parent for at least six consecutive months
immediately before the commencement of a child custody proceeding,
including any period during which that person is temporarily absent from
that state.” A.R.S. § 25-1002(7)(a). The superior court has exclusive subject
matter jurisdiction to hear cases in which children are dependent because
of abuse or neglect. See Ariz. Dep’t of Econ. Sec. v. Grant, 232 Ariz. 576, 581,
¶ 13 (App. 2013) (citing A.R.S. § 8-202.B to show the superior court “has
‘exclusive original jurisdiction’ over Title 8 dependency proceedings”).
Arizona is the children’s home state because each child has lived in Arizona
since birth. The superior court, therefore, had exclusive statutory
jurisdiction to address mother’s dependency action.
¶13 Mother, therefore, cannot prevail on lack of subject matter
jurisdiction unless she establishes a different basis to undermine it. She does
not.
¶14 First, mother correctly argues the superior court loses
jurisdiction upon her filing of a removal petition. “[A] state court’s power
to proceed following remand from federal court is so akin to the issue of
subject matter jurisdiction as to warrant application of the same rule of non-
waiver.” See Health for Life Brands, Inc. v. Powley, 203 Ariz. 536, 538–39, ¶ 13
(App. 2002). But upon remand from the federal district court eight days
later, the superior court’s jurisdiction was fully reinstated. See id. at 542, ¶ 27(ruling the superior court’s jurisdiction was reinstated upon remand from
bankruptcy court even if the bankruptcy court did not mail the superior
court notice of the remand). During the critical eight-day period, the
superior court entered no substantive orders. Then, upon remand, the
superior court affirmed its earlier procedural orders. Moreover, as DCS
points out, because mother attempted to remove a dependency action over
which Arizona state court’s had exclusive jurisdiction, her notice of
removal had no effect on the superior court’s jurisdiction. See Yankaus v.
Feltenstein, 244 U.S. 127, 130–33 (1917); Metropolitan Cas. Ins. Co. v. Stevens,
312 U.S. 563, 565–69 (1941). Its rulings, therefore, were valid.
¶15 Second, mother argues a settlement agreement in a federal
case to which she was not a party somehow deprived Arizona of its
exclusive jurisdiction. Though mother purports to quote the terms of the
settlement agreement, mother never made the alleged settlement
agreement a part of the record. Mother even filed a notice of removal to the
federal district court in Arizona. The federal district court quickly
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ALLEGRA G. v. DCS et al.
Decision of the Court
remanded the matter to the Arizona superior court, finding the federal
district court had no jurisdiction—based on a settlement or otherwise.
¶16 Third, mother correctly argues the superior court loses
jurisdiction upon the filing of a timely notice of appeal to this court. See
Brionna J. v. Dep’t of Child Safety, 247 Ariz. 346, 350, ¶ 11 (App. 2019) (quoting
Castillo v. Indus. Comm’n, 21 Ariz. App. 465, 467 (1974)). But mother did not
do that. Instead, she attempted to appeal two unsigned and unappealable
orders. This court dismissed those appeals for lack of jurisdiction. Because
this court never had jurisdiction to hear mother’s defective appeal, the
superior court never lost jurisdiction. See Bank of N.Y. Mellon v. Dodey, 246
Ariz. 1, 7–8, ¶ 20 (App. 2018) (recognizing when this court declines
“jurisdiction to hear an appeal based on the lack of a final appealable
order[,] . . . the appeal was not ‘properly invoked,’ and the superior court
never lost jurisdiction”).
¶17 Regarding personal jurisdiction, mother bases her challenge
on service of process. Section 8-841.F requires DCS to serve the dependency
petition on the parent at least five days before the initial dependency
hearing. DCS timely served mother in person on May 5. The service
included the dependency petition and notice of the June 22 hearing. On
June 16, DCS then provided mother with a second notice about the June 22
hearing. During the June 22 hearing, the superior court found DCS
sufficiently served mother and mother waived her right to argue against
DCS’s allegations because she failed to appear at the hearing without good
cause.
¶18 Based on the above, reasonable evidence supports the
superior court’s jurisdictional findings.
II. Due Process
¶19 Mother argues the superior court violated her due process
rights because it conducted the dependency hearing in her absence. We
disagree.
¶20 Procedural due process requires reasonable notice and an
opportunity to be heard. Willie G. v. Ariz. Dep’t of Econ. Sec., 211 Ariz. 231,
235, ¶ 18 (App. 2005). A parent may waive those rights by not appearing at
the initial dependency hearing without good cause. Id. at ¶ 20; see also Ariz.
R.P. Juv. Ct. 52(C)(6)(c). “Due process errors require reversal only if a party
is thereby prejudiced.” Volk v. Brame, 235 Ariz. 462, 470, ¶ 26 (App. 2014).
This court reviews de novo alleged due process violations. Wassef v. Ariz.
State Bd. of Dental Exam’rs, 242 Ariz. 90, 93, ¶ 11 (App. 2017).
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ALLEGRA G. v. DCS et al.
Decision of the Court
¶21 DCS served mother with notice of the June 22 hearing, which
notice also included warnings about her potentially waiving her rights if
she failed to appear. Mother, therefore, had reasonable notice and an
opportunity to be heard. See Willie G., 211 Ariz. at 235, ¶¶ 18–20. She waived
her procedural due process rights when she failed to appear at the hearing
without good cause. See id.
CONCLUSION
¶22 We affirm the superior court’s order adjudicating the children
dependent. We decline to grant mother’s request to award her costs and
other fees because she is not the successful party on appeal.
AMY M. WOOD • Clerk of the Court
FILED: AA
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