Elias U. 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
ELIAS U., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, R.U., A.U., D.U., E.U., Appellees.
No. 1 CA-JV 21-0151
FILED 12-16-2021
Appeal from the Superior Court in Maricopa County
No. JD31364
The Honorable Michael J. Herrod, Judge
AFFIRMED
COUNSEL
Elias Udechime, Phoenix
Appellant
Arizona Attorney General’s Office, Phoenix
By Emily M. Stokes
Counsel for Appellee Department of Child Safety
ELIAS U. v. DCS et al.
Decision of the Court
MEMORANDUM DECISION
Judge Samuel A. Thumma delivered the decision of the Court, in which
Chief Judge Kent E. Cattani and Judge Maurice Portley1 joined.
T H U M M A, Judge:
¶1 Elias Udechime appeals from the denial of his petition to
vacate or set aside the termination of his parental rights to his four children.
Because he has shown no error, this court affirms.
FACTS AND PROCEDURAL HISTORY
¶2 Elias and Chinonye Udechime had four children together,
born in 2004, 2006, 2011 and 2013 respectively. After a reported domestic
violence incident months earlier, in September 2015, Chinonye was found
dead in their home, and the Department of Child Safety (DCS) took custody
of the children. Chinonye’s death was suspicious, and Elias was a suspect,
although he was not immediately charged criminally.
¶3 In November 2015, the court found the children dependent
and adopted a family reunification case plan. Elias participated in some
reunification services, but not others. The Medical Examiner then ruled
Chinonye’s death a homicide. In November 2016, the court changed the
case plan to severance and adoption. In December 2016, DCS timely moved
to terminate that, as amended, alleged nine- and 15-months time-in-care.
1 The Honorable Maurice Portley, Retired Judge of the Court of Appeals,
Division One, has been authorized to sit in this matter pursuant to Article
6, Section 3, of the Arizona Constitution.
2
ELIAS U. v. DCS et al.
Decision of the Court
¶4 By September 2017, Elias was in custody, facing criminal
charges for Chinonye’s murder. At an October 2017 severance adjudication,
although still in custody, Elias “refused to appear.” As a result, the court
found Elias “failed to appear without good cause and [] has therefore
waived his right to contest the allegations in the severance motion.” After
receiving evidence and considering closing arguments, in January 2018, the
court granted the motion to terminate on both statutory grounds, also
finding termination of Elias’ parental rights was in the best interests of the
children.
¶5 Elias’ appeal from that decision was dismissed in April 2018,
based on his attorney’s avowal that there was “no non-frivolous issue to
raise.” Ariz. R. P. Juv. Ct. 106(G). The children were adopted, and the
dependency dismissed, in early January 2019.
¶6 In April 2021, almost three years after the mandate issued in
that appeal and at a time he remained in jail, Elias filed a “Petition for Writ
of Error Coram Nobis to Vacate/Set-Aside Entered Judgment.”2
Construing the petition as a motion to set aside the order granting the
termination motion, the court denied it as untimely, noting the passage of
time and that the children had already been adopted. Elias then
unsuccessfully sought reconsideration of that ruling. This court has
jurisdiction over Elias’ timely appeal pursuant to Article 6, Section 9, of the
Arizona Constitution and Arizona Revised Statutes (A.R.S.) sections 12-
120.21(A)(1) and -2101(A)(1) (2021).3
2 A writ of error coram nobis “was to have a judgment corrected by an
examination, by the court rendering it, into some question of fact affecting
the validity and regularity of the proceedings . . . . The writ has become
obsolete, having been superseded by the modern practice of applying to the
court by motion for the relief sought.” Billups v. Freeman, 5 Ariz. 268, 271
(1898) (citation omitted); accord Fed. R. Civ. P. 60(e) (abolishing writs of
coram nobis in federal court).
3Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.
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ELIAS U. v. DCS et al.
Decision of the Court
DISCUSSION
¶7 This court reviews questions of law, including interpretation
of statutes, court rules and constitutional issues, de novo. In re Brittany Y.,
214 Ariz. 31, 32 ¶ 6 (App. 2006); Brenda D. v. Dep’t of Child Safety, 243 Ariz.
437, 442 ¶ 15 (2018).
I. Elias’ Arguments Implicating the Adoption Order Are Barred.
¶8 To the extent Elias challenges the January 2019 adoption
order, his claim is barred. “After one year from the date the adoption decree
is entered, any irregularity in the proceeding shall be deemed cured and the
validity of the decree shall not thereafter be subject to attack on any such
ground in any collateral or direct proceeding.” A.R.S. § 8-123. The children
were adopted in January 2019, yet Elias waited until April 2021 to challenge
those proceedings. Elias’ argument that a severance proceeding is separate
from an adoption proceeding does not preclude the application of this
statutory bar. Moreover, as discussed below, Elias has failed to show the
severance determination was void. Thus, Elias’ arguments implicating the
adoption order are barred.
II. Elias’ Request to Set Aside the Termination Order Was Untimely.
¶9 The termination order became an appealable “final order”
when it was issued in January 2018. See Ariz. R.P. Juv. Ct. 103(A). That
ruling became final, and akin to a judgment, no later than April 2018, when
the mandate issued in Elias’ appeal. To challenge that judgment, Elias was
required to file a motion within “six (6) months of the final judgment, order
or proceeding.” Ariz. R.P. Juv. Ct. 46(E). By waiting until April 2021 to
challenge that ruling, Elias’ request to set aside the termination order was
untimely.
III. Elias Has Not Shown the Termination Order Was Void.
¶10 In challenging the termination order, Elias argues it was void.
He asserts that an evidentiary hearing was required to consider his April
2021 petition alleging (1) due process violations; (2) ineffective assistance of
counsel and (3) a failure to provide him with trial transcripts. Citing Brooks
v. Consolidated Freightways, 173 Ariz. 66, 71 (App. 1992), Elias argues a
motion to set aside a void judgment cannot be untimely, because Arizona
Rule of Civil Procedure 60(b)(4) contains no time limit and “the court must
vacate a void judgment or order ‘even if the party seeking relief delayed
unreasonably.’” Assuming the same analysis applies here, Elias has not
shown the termination order was void.
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ELIAS U. v. DCS et al.
Decision of the Court
¶11 Although arguing a due process violation because he was not
heard during the termination adjudication, Elias fails to acknowledge that
he refused to appear at trial. Indeed, the record shows that Elias had an
opportunity to be heard: the jail scheduled his transportation to attend the
severance hearing, but he refused to attend. After finding Elias “failed to
appear without good cause and he has therefore waived his right to contest
the allegations in the severance motion,” the court properly proceeded with
trial, considered evidence and argument and, finding DCS met its burden
of proof, granted the motion. See A.R.S. § 8-863(C) (“If a parent does not
appear at the hearing, the court, after determining that the parent has been
served . . . may find that the parent has waived the parent’s legal rights and
is deemed to have admitted the allegations of the petition by the failure to
appear.”); Ariz. R.P. Juv. Ct. 66(D)(2) (similar). Elias never timely
challenged the finding that he intentionally refused to be transported from
jail to attend the severance hearing.
¶12 Elias has not established that his attorney’s performance
prejudiced his case. It was Elias’ own decision not to appear that truncated
trial and resulted in him “not being heard.” Moreover, his attorney
attended trial, cross-examined witnesses, made objections and submitted a
written closing argument on Elias’ behalf. Nor has Elias shown how the
actions or inactions of his appellate counsel made the termination order
void or excused his three-year delay in seeking to challenge that order. In
sum, Elias has not shown that his decision not to appear at trial could,
somehow, constitute a due process violation or that he was deprived of the
assistance of counsel.
¶13 Finally, Elias’ claim that he had a constitutional right to a trial
transcript under M.L.B. v. S.L.J., 519 U.S. 102 (1996) does not show that the
termination order was void. As noted above, by failing to appear without
good cause, Elias waived his legal rights and was deemed to have admitted
the allegations in the motion to terminate. See A.R.S. § 8-863(C); Ariz. R.P.
Juv. Ct. 66(D)(2). Similarly, he does not argue insufficiency of the trial
evidence. Finally, and most significantly, he cited the trial transcript in his
April 2021 petition filed with the superior court, and his opening brief on
appeal attaches as an appendix a trial transcript page. Accordingly, Elias
has not shown that any issues regarding access to the trial transcript
resulted in a void termination order.4
4 To the extent Elias claims the parental termination statute is
unconstitutional, the record does not demonstrate his compliance with the
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ELIAS U. v. DCS et al.
Decision of the Court
CONCLUSION
¶14 Because Elias has shown no error, the denial of his petition to
vacate or set aside the termination of his parental rights to his four children
is affirmed.
AMY M. WOOD • Clerk of the Court
FILED: AA
necessary procedural requirements to press such a challenge. See A.R.S. §
12-1841(A).
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