Catherine F v. ADES, Lauryn R

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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 CATHERINE F., ) ) Appellant, ) ) v. ) ) ARIZONA DEPARTMENT OF ECONOMIC ) SECURITY, LAURYN R., ) ) Appellees. ) __________________________________) DIVISION ONE FILED: 11/03/2011 RUTH A. WILLINGHAM, CLERK BY: GH No. 1 CA-JV 11-0085 DEPARTMENT B MEMORANDUM DECISION (Not for Publication 103(G) Ariz. R.P. Juv. Ct.; Rule 28 ARCAP) Appeal from the Superior Court in Maricopa County Cause No. JD19913 The Honorable Benjamin R. Norris, Judge AFFIRMED Robert D. Rosanelli Attorney for Appellant Phoenix Thomas C. Horne, Arizona Attorney General Phoenix By David M. Osterfeld, Assistant Attorney General Attorneys for Appellee ADES S W A N N, Judge ¶1 Catherine F. ( Appellant ) did not appear at a dependency hearing, notice of which was served by publication. At that hearing, the court found that Appellant s daughter was dependent as juvenile to court her.1 lacked Appellant argues jurisdiction to on appeal make the finding because the Child s whereabouts were unknown. that the dependency She also argues that the published notice contained defects that violated her right to due process. We hold that Arizona was the Child s home state and that the juvenile court had jurisdiction. also hold violated. that Appellant s right to due process was We not We therefore affirm. FACTS AND PROCEDURAL HISTORY ¶2 On January 12, 2011, the Child s guardian ad litem ( GAL ) filed a dependency petition. The petition alleged that the Child should be found dependent pursuant to A.R.S. § 8201(13) because she had no parent or guardian willing or able to exercise proper care and control. The petition alleged that the Child was molested in May 2010 by Appellant s boyfriend while Appellant was away from home, that Appellant told the County Attorney that the criminal charges against the boyfriend were not true, and that jail calls proved that Appellant had not ended her relationship with the boyfriend. It also alleged that by violating an order to bring the Child to meet with the GAL and a Victim Advocate, Appellant was the subject of a Civil 1 The court also found that the Child was dependent as to her natural father. Because no issues are raised on appeal either by the father or on his behalf, we omit him from our review and discussion. 2 Arrest Warrant. The petition was accompanied by supporting documents, including a police report and minute entries. ¶3 The court set a preliminary conference for January 24, 2011. hearing. protective hearing and Appellant did not attend that In fact, much of that hearing was spent discussing what to do as a consequence of Appellant having absconded with the child. The GAL testified that on January 20 a process server had tried to serve Appellant at the hospital where she worked, but the hospital told the server that Appellant had not been on its work schedule for two weeks. The GAL pointed out that this claim was doubtful since Child Protective Services ( CPS ) had spoken with Appellant at the hospital on January 13. The hearing ended with the trial court ordering the sheriff to serve the arrest warrant on Appellant,2 vacating the Initial Dependency Hearing that had been set for February 3, 2010, and resetting it for February 10. Appellant did not appear at the February 10 hearing. ¶4 The GAL informed the court that when the sheriff s deputies tried to serve Appellant at the hospital, they were told that she was on a leave of absence. 2 Although the GAL s It was urgent that the court learn the Child s whereabouts and confirm her safety, because the state presented evidence that Appellant s boyfriend might still be having contact with the Child. 3 process server looked all over town to find Appellant, she was never found. ¶5 The GAL insisted: But she is here, she s around. Information then emerged suggesting that the Child was in North Carolina.3 Another judge, presiding over the criminal case for Appellant s boyfriend, ordered Appellant to have the child brought back to Arizona. to pick up airplane. the Child at When CPS went with two deputies the airport, she was not on the After hearing these facts, the court ordered CPS to serve Appellant by publication and set a Publication Hearing and a Continued Initial Dependency Hearing for April 18, 2011. ¶6 Over four consecutive weeks in March, the Arizona Department of Economic Security ( ADES ) published in The Record Reporter, a newspaper of general circulation, Publication addressed to Appellant. a Notice of The notice declared that (1) the dependency hearing was set for April 18; (2) Appellant was entitled to appear with counsel, either chosen by her or appointed by the court; and (3) Appellant s failure to appear without good cause could result in an adjudication of the April 18, reviewing the Child s dependency. ¶7 Appellant When the dependency did not appear. hearing The 3 was court, held after on CPS in Greensboro, North Carolina, checked the address where the Child was supposed to be staying and reported it vacant. The address CPS checked came from the GAL, who got it from the criminal court, who received it from Appellant. 4 published notice and the relevant affidavits,4 Appellant had been served by publication. found that It also entered an order of default against Appellant, and an attorney from the Office of the Legal Defender was appointed as Appellant s counsel. ¶8 Appellant s counsel objected that the court could not find the Child dependent under A.R.S. § 8-844(C)(1)(a)(i), which requires that a court determining dependency find both personal and subject matter jurisdiction. Counsel argued that the court lacked personal jurisdiction over Appellant because no one was sure where she s residing and that the court lacked jurisdiction over the Child because she was allegedly out of state. CPS replied the that mother the by court virtue acquired of the personal jurisdiction over service by publication. It also pointed out that there was no proof that the Child had actually gone to North Carolina, that the Child had been enrolled in Arizona schools through December 2010, and that Appellant s boyfriend had allegedly molested the Child in Arizona. 4 The court had before it a notice of publication with the correct date, time and location; an affidavit of service by publication as to Appellant; an affidavit of publication in the newspaper of general circulation; two affidavits of attempted service on Appellant; and an affidavit of diligent search as to Appellant. 5 ¶9 The court agreed with CPS that it had jurisdiction for the dependency finding. The fact that Arizona was the last state in which the child was actually known to be living gave Arizona a better jurisdictional claim over the child than any other state could put forward. The court reasoned that if it were to find that it lacked jurisdiction because it was unsure whether the Child was in North Carolina or not, a strange logic would govern: [I]f we had to know where the child was then nobody would have jurisdiction and nobody could look out for the child s interests. The court then found by a preponderance of the evidence that the Child was dependent and ordered ADES to use all available resources to locate her. ¶10 Appellant timely appeals. The first issue she raises is whether there was sufficient evidence regarding the Child s home state and to The jurisdiction. whereabouts is second support whether the the juvenile court s court violated Appellant s right to due process by failing to notify her that the April 18 hearing could deprive her of custodial rights even in her absence. ¶11 We have jurisdiction pursuant to A.R.S. §§ 12- 120.21(A)(1) and 8-235(A), and Ariz. R.P. Juv. Ct. 103(A). STANDARD OF REVIEW ¶12 Whether the juvenile court had jurisdiction is a legal question that we review de novo. 6 David S. v. Audilio S., 201 Ariz. 134, 136, ¶ 4, 32 P.3d 417, 419 (App. 2001). Whether the juvenile court afforded Appellant due process is also a question of law subject to de novo review. Ariz. 430, 432, ¶ 5, 4 P.3d Herman v. City of Tucson, 197 973, 975 (App. 1999). But a juvenile court s decision in dependency proceedings about the weight and effect of evidence will not be disturbed unless it is clearly erroneous. Maricopa County Juv. Action No. JD-6123, 191 Ariz. 384, 388, 956 P.2d 511, 515 (App. 1997). DISCUSSION I. THE JUVENILE COURT S JURISDICTION ¶13 The juvenile court s jurisdiction over a child alleged to have multiple residences is determined by the Uniform Child Custody Jurisdiction and Enforcement Act ( UCCJEA ). applies to various child custody The UCCJEA proceedings, including proceedings that involve a determination of dependency. A.R.S. § 25-1002(3), (4)(a); Willie G. v. Ariz. Dep t of Econ. Sec., 211 Ariz. 231, 233-34, ¶ 11, 119 P.3d 1034, 1036-37 (App. 2005). ¶14 Under juvenile court § 25-1031(A)(1) has home dependency in two ways. of state the UCCJEA, jurisdiction to an Arizona determine First, an Arizona court has home state jurisdiction if Arizona was the home state of the child on the date of the 1031(A)(1). commencement of Alternatively, the an proceeding. Arizona court A.R.S. has home § 25- state jurisdiction if it was the home state of the child within six 7 months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state. Id. See also, Welch- Doden v. Roberts, 202 Ariz. 201, 208-09, ¶ 33, 42 P.3d 1166, 1173-74 (App. 2002). ¶15 Appellant argues that the court received no evidence of the child s residence or whereabouts at the April 18 hearing, and it therefore had no basis for the exercise of jurisdiction. We disagree. If we take the first approach in § 25-1031(A)(1), then the evidence in the record establishes the existence of home state jurisdiction even without evidence of the Child s current whereabouts. The dependency petition and attached exhibits made clear that the Child had been living in Arizona for at least seven months, from May 2010, when Appellant s boyfriend allegedly molested her in Appellant s home, through December 2010, when Appellant removed her from school to move to North Carolina. Carolina had Appellant never provided evidence that North actually become the Child s new home state - indeed, the only evidence in the record showed that the Child could not be found there. The only possible home state on this evidence was Arizona. ¶16 Even if we were to entertain the assertion that the Child was in North Carolina, as Appellant told CPS, the second approach in § 25-1031(A)(1) would still give the juvenile court 8 home state jurisdiction. child within proceeding six Arizona was the home state of the months because the before length the of commencement time between of the the Child s withdrawal from her Arizona school and the date of the April 18 hearing was four months. Appellant continue[d] to live in this state. 5 was a parent . . . who Therefore, even if the child was in North Carolina and absent from this state, those facts would suffice for the juvenile jurisdiction under § 25-1031(A)(1). court s home state Welch-Doden, 202 Ariz. at 208-09, ¶ 33, 42 P.3d at 1173-74 (holding that the term home state has a broad meaning in § 25-1031(A)(1) given the UCCJEA s fundamental purpose of establishing home state jurisdiction). ¶17 Based on our review of the record, we find that the trial court made no clear error when it interpreted the evidence before it. Further, we hold that the trial court correctly concluded as a matter of law that it had jurisdiction over the Child s dependency hearing. II. THE ADEQUACY OF THE NOTICE ¶18 notice, In her challenge to what she claims was inadequate Appellant cites to cases holding that a parent s fundamental interest in the custody and control of her child is 5 At the April 18 hearing, a CPS lawyer informed the court that Appellant told them that the Child was with relatives in North Carolina. From that claim the court could reasonably infer that the Child was with relatives in North Carolina, and not with Appellant, because Appellant remained in Arizona. 9 protected by that parent s right to due process. Mara M. v. Ariz. Dep t Econ. Sec., 201 Ariz. 503, 507, ¶ 24, 38 P.3d 41, 45. We acknowledge that when the state acts to limit parental rights, it must do so by fair procedures. giving a parent notice reasonably Id. This includes calculated under all the circumstances to apprise her of the pendency of an action that could affect her custody. ¶19 The Rules Id. of Procedure for the Juvenile Court prescribe the content of a notice for a dependency hearing. The notice must advise the parent . . . that failure to appear, without good parent . . . cause has shown, waived may result in legal rights a and finding that the to have Rule 48(C). The is admitted the allegations in the petition. deemed notice must also advise the parent that the hearings may go forward in the absence of the parent . . . and may result in an adjudication of dependency, the termination of parental rights or the establishment of a permanent guardianship based upon the record and evidence presented. ¶20 served. The Rule publication. Rules also 48(D)(6) Id. prescribe permits the how that parent to notice be may be served by And service by publication satisfies due process when the serving party, despite due diligence, cannot locate the party to be served. See Master Fin., Inc. v. Woodburn, 208 Ariz. 70, 73, ¶ 15, 90 P.3d 1236, 1239 (App. 2004) (as amended). 10 ¶21 was On appeal, Appellant does not argue that publication an inappropriate means of service. Instead, Appellant argues that the published notice had three flaws that together deprived her of due process. First, the caption on the notice published in The Record Reporter identified the April 18 hearing as a Publication Hearing and not as an Initial Hearing on the Child s dependency. the April 18 hearing Second, the notice did not state that was the type of hearing in which her failure to appear could result in any negative consequence for her as a parent. And third, the notice claimed that the April 18 hearing was only for the purpose of determining whether any parent or guardian named herein is contesting the allegations in the Petition. ¶22 none A reasonable reading of the notice, however, supports of caption, Appellant s alleged which in misleading. newsprint comes two due process versions in violations. the record, The is not The first version, which sits atop the column of reproduced in the affidavit of publication, places ADES S NOTICE OF PUBLICATION at the top, HEARING ON DEPENDENCY in the middle, and PETITION on the bottom. The second version, found in a copy of the notice filed with the trial court, is captioned ADES S NOTICE OF PUBLICATION DEPENDENCY PETITION. 11 above HEARING ON ¶23 Further, notified Appellant Petition. the that text of the the GAL publication had filed a adequately Dependency Paragraph 1 notified Appellant that the hearing s purpose was to allow her to challenge the dependency petition s allegations. hearing could And Paragraph involve more 3 notified than that. Appellant It that stated the that Appellant s failure to appear at the hearing could lead to her waiver of parental rights and that it was the type of hearing that could result in an adjudication of dependency, termination of [her] parental rights, or the establishment of a permanent guardianship. In brief, the substance of the notice conformed to the requirements of 48(C) in the Arizona Rules of Juvenile Procedure and satisfied Appellant s right to due process. 12 CONCLUSION ¶24 Holding that the juvenile court had jurisdiction over the dependency hearing and that the published notice did not violate Appellant s right to due process, we affirm the court s finding of the Child s dependency as to Appellant. Ariz. R.P. Juv. Ct. 106(F)(1). /s/ ___________________________________ PETER B. SWANN, Judge CONCURRING: /s/ ____________________________________ MARGARET H. DOWNIE, Presiding Judge /s/ ____________________________________ DONN KESSLER, Judge 13

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