Fitzgerald v. Hernandez

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE In re the Matter of the Adoption of: ) ) ) MATTHEW J. HERNANDEZ, ) ANGELO R. HERNANDEZ, ) ) Minor Children. ) __________________________________) ARLENE FITZGERALD, ) ) Petitioner/Appellee, ) ) v. ) ) MATTHEW R. HERNANDEZ, ) ) Respondent/Appellant. ) __________________________________) DIVISION ONE FILED: 05/17/2012 RUTH A. WILLINGHAM, CLERK BY: sls 1 CA-CV 11-0405 DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Mohave County Cause No. S8015CV201100495 The Honorable Richard Weiss, Judge REVERSED AND REMANDED Law Offices of Keith S. Knochel PC by Keith S. Knochel Attorneys for Respondent/Appellant Bullhead City P O R T L E Y, Judge ¶1 erred We are asked to determine whether the superior court by denying the biological father s request to unseal adoption records of his two minor children so he can challenge their adoption. Because we find that his request for access to the records establishes a compelling need for the information, we reverse the denial of the petition to unseal and remand the matter for further proceedings. FACTUAL AND PROCEDURAL BACKGROUND ¶2 Matthew Hernandez ( Hernandez ) and Arlene Fitzgerald ( Mother ) are the unmarried parents of two children. Hernandez sought parenting time with his children, who live in California, and learned during the 2008 California proceeding that his parental rights had been terminated when Mother told the court that her husband had adopted the children four years earlier. She also admitted that she intentionally served Hernandez by publication in Mohave County even though she knew lived. 1 1 The following exchange took place: The Court: At the time that you apparently served Mr. Hernandez by publication. [sic] Did you know his address? Mother: I did. . . . The Court: Then why did you serve him by publication instead of personal service? Mother: Because that s what my attorney advised me at the time, because I was living in Arizona. 2 where he ¶3 Hernandez subsequently filed a Verified Petition to Unseal Adoption Case and to Vacate/Void Adoption, in which he alleged he was not properly notified of the adoption proceeding pursuant to Arizona Revised Statutes ( A.R.S. ) section 8-106(G) 2012). 2 (West because he He requested had access reason to to the adoption believe that records Mother s misrepresentations induced improper service and, as a result, deprived the court of jurisdiction. The court denied his request because more than one year had passed since the adoption had been finalized. He filed this appeal after he unsuccessfully moved for reconsideration. 3 DISCUSSION ¶4 We review a ruling on a records for an abuse of discretion. motion to unseal adoption See A.R.S. § 8-121(D) (West 2012) ( If a compelling need for disclosure of information is established, should be the court disclosed may and decide to whom what and information, under what if any, conditions disclosure may be made. ); see also Perry v. Brown, 667 F.3d 1078, 1084 (9th Cir. 2012) (applying 2 abuse of discretion We cite the current version of the applicable statute if no revisions material to this decision have since occurred. 3 Mother did not file an answering brief. Although we could treat her failure to answer as a confession of error, Chaplin v. Snyder, 220 Ariz. 413, 423 n.7, ¶ 40, 207 P.3d 666, 676 n.7 (App. 2008) (citation omitted), we address the merits of the appeal because of its importance. See In re Guardianship of Cruz, 154 Ariz. 184, 185, 741 P.2d 317, 318 (App. 1987). 3 standard to interpret issues ruling on relevant de motion statutes, novo. to unseal). however, Scottsdale We and Unified independently decide Sch. other Dist. No. legal 48 of Maricopa Cnty. v. KPNX Broad. Co., 191 Ariz. 297, 302, ¶ 20, 955 P.2d 534, 539 (1998) (citation omitted). We will affirm the court s decision unless the ruling lacks substantial evidentiary support or is contrary to the law. 64, 65-66, ¶ 2, 22 P.3d 57, Files v. Bernal, 200 Ariz. 58-59 (App. 2001) (citations omitted). ¶5 We start from the premise that a parent s fundamental right to absolute, manage and is constitutionally a care for his or her protected child, while liberty not interest. M.L.B. v. S.L.J., 519 U.S. 102, 119 (1996) ( [T]he interest of parents in their sufficiently liberty (citation Woodward relationship fundamental interests and come protected internal Cnty., to Okl., by with their within the the children finite Fourteenth class marks omitted)); Woodrum 866 1121, 1125 Cir. (9th of Amendment. quotation F.2d is v. 1989) (citations omitted); Lee v. Superior Court in & for Pima Cnty., 25 Ariz. omitted). App. 55, 58, 540 1274, 1277 (1975) (citation The right to parent nevertheless may be terminated for cause or by consent. 2012). P.2d See A.R.S. §§ 8-106, -533(B) (West When another adult, such as a stepparent, adopts the child, the relationship between the biological parent and child 4 is completely severed and all the legal rights, privileges, duties, obligations and other legal relationship cease to exist . . . . 2012). 4 consequences of the A.R.S. § 8-117(B) (West Accordingly, statutes terminating a parent s rights must be strictly construed in favor of preserving the parent-child relationship. Lee, 25 Ariz. App. at 58, 540 P.2d at 1277 (citation omitted). ¶6 § In the absence of a termination for cause pursuant to 8-533(B), a court cannot grant an adoption unless the biological parent s consent has been obtained and filed with the court. A.R.S. § 8-106(A). Even if an unwed father has not established paternity, he is still entitled to notice of the adoption, his right to establish paternity, his right to seek custody, and his right to consent or withhold consent. 8-106(G). A.R.S. § And, consent or its procedural equivalent, notice, are jurisdictional. Lee, 25 Ariz. App. at 58, 540 P.2d at 1277 (citation omitted). ¶7 Section 8-106(G) mandates that [n]otice shall be served on each potential father as provided for the service of process in civil actions. We therefore turn to the Arizona Rules of Civil Procedure that govern process. These rules are designed to actually apprise a party of the proceeding. 4 The biological parent married to the adopting maintains all parental rights. A.R.S. § 8-117(C). 5 Marks stepparent v. LaBerge, 146 Ariz. 12, 15, 703 P.2d 559, 562 (citation omitted). ¶8 Under Rule 4.1(d), Ariz. R. Civ. P., [s]ervice upon an individual . . . shall be effected by delivering a copy of the summons and of the pleading to that individual personally or by leaving copies thereof at that individual's dwelling house or usual place of abode or with an authorized agent. Thus, if a party knows the other party s address, direct service of process is mandatory. authorize direct See Ariz. R. Civ. P. 4.1(m) (A court cannot alternative service service proves other than impracticable. . publication . . unless Service by publication may be employed only under the circumstances, and in accordance with [r]ules. ). jurisdiction the Any by a procedures, rule that method specified permits other than process] must be strictly construed. a in . court personal . to . these obtain service [of Llamas v. Superior Court in & for Pima Cnty., 13 Ariz. App. 100, 101, 474 P.2d 459, 460 (1970) (citation omitted). ¶9 A court may not authorize service by publication unless it finds that the person to be served is one whose residence is unknown to the party seeking service but whose last known residence address was within the state, or has avoided service of process, and service by publication is the best means practicable 6 under the circumstances notice . . . . Ariz. R. Civ. P. 4.1(n). for providing To satisfy the statute, however, the party seeking constructive service cannot merely assert that the other party s ascertained. address is unknown and incapable of being Sprang v. Petersen Lumber, Inc., 165 Ariz. 257, 261, 798 P.2d 395, 399 (App. 1990) (citations omitted); Llamas, 13 Ariz. App. at 101, 474 P.2d at 460 (citation omitted). To use an service by publication, a party is required to file affidavit that contains probative facts demonstrating it made a due diligent effort personal service. 5 to locate an opposing party to effect Sprang, 165 Ariz. at 261, 798 P.2d at 399 (citations omitted). 5 As we explained in Master Fin., Inc. v. Woodburn, 208 Ariz. 70, 73-74, ¶ 15, 90 P.3d 1236, 1239-40 (App. 2004), service by publication is appropriate if it is the best means of notice under the circumstances and it is reasonably calculated to apprise the interested parties of the pendency of the action. Service by publication is constitutionally sufficient for a defendant who willfully leaves the state to evade service of process . . . [or] for non-resident motorists who cannot be located through due diligence. We hold that service by publication is likewise sufficient when a plaintiff has exercised due diligence to personally serve a resident defendant at a last known address within the state and has complied with the publication procedures of Rule 4.1(n). (Citations omitted.) 7 ¶10 A search of telephone company, utility company, and municipal records illustrates before a the type court may of meaningful investigation required allow service by publication. Compare Sprang, 165 Ariz. at 261, 798 P.2d at 399 (citations omitted) (affidavit devoid of facts in support of due diligence held insufficient) with Brennan v. W. Sav. & Loan Ass'n, 22 Ariz. App. 293, 296, 526 P.2d 1248, 1251 (1974) (proof that party checked a credit bureau, the public utilities, the post office, and Phoenix directory established due diligence as a matter of law). process To ensure compliance with constitutional due requirements, [a] finding of due diligence jurisdictional prerequisite to service by publication. is a Master Fin., Inc. v. Woodburn, 208 Ariz. 70, 73, ¶ 11, 90 P.3d 1236, 1239 (App. omitted). 2004) satisfy (citation Consequently, the and internal constructive constitutional standard quotation marks service that does renders any resulting judgment facially void for lack of jurisdiction. not Sprang, 165 Ariz. at 262, 798 P.2d at 400 (citations omitted). ¶11 waited Here, for records. five the superior years before court found seeking to that unseal Hernandez the had adoption The court then determined that his request to open the file was precluded by A.R.S. § 8-123 (West 2012), which states that 8 [a]fter 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. The court s reliance on § 8-123, however, was misplaced because a jurisdictional defect meaning of the statute. 242, 660 P.2d 491, an order legitimize Master Fin., Inc., is not an irregularity within the Goclanney v. Desrochers, 135 Ariz. 240, 493 (App. entered 208 Ariz. 1982) (section 8-123 without authority); at ¶ 74, 19, 90 cannot see, P.3d e.g., at 1240 (citations omitted) (motion to vacate void judgment is never untimely, even in the case of unreasonable delay by the party seeking relief ); In re Milliman's Estate, 101 Ariz. 54, 58, 415 P.2d 877, omitted) 881 (1966) ( Laches of (citation a party . and . internal . cannot quotation infuse [a marks void] judgment with life. ). ¶12 that Here, the court should have considered the evidence Mother admitted in the California proceeding that she served Hernandez by publication even though she knew his Mohave County address at the time. Based on Mother s statement, she may not have been entitled to serve Hernandez with the § 8-106 notice by publication. information contained As a result and depending on the in the sealed file regarding the constructive service the court may have lacked jurisdiction to 9 terminate Hernandez s parental rights. See Sprang, 165 Ariz. at 262, 798 P.2d at 400 (citations omitted); In re Adoption of Hadtrath, 121 account, 606, omitted). (citations Ariz. If we believe the 608, 592 these court P.2d facts may 1262, had have been ruled that the request to access the (1979) taken into differently order to ensure that the adoption was not void. conclude 1264 in We therefore adoption records to obtain information about service of process presented good cause to unseal the file. ¶13 In light of the potential jurisdictional defect, the court should have granted the motion to unseal the adoption file, allowed Hernandez limited access to the file to determine whether the affidavit seeking service by publication was legally sufficient and, if necessary, conducted a hearing to resolve the matter. Accordingly, the order denying the motion is reversed. CONCLUSION ¶14 the Based on the foregoing, we reverse the ruling denying petition to unseal and remand the matter for further proceedings consistent with this decision. /s/ ________________________________ MAURICE PORTLEY, Presiding Judge CONCURRING: /s/ _____________________________ ANN A. SCOTT TIMMER, Judge /s/ ________________________________ ANDREW W. GOULD, Judge 10

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