Jessica M. v. Dcs ( 2015 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
JESSICA M., Appellant
v.
DEPARTMENT OF CHILD SAFETY, S.L., B.L., Appellees.
No. 1 CA-JV 15-0027
FILED 8-6-2015
Appeal from the Superior Court in Maricopa County
No. JD 24231
The Honorable Susanna C. Pineda, Judge
AFFIRMED
COUNSEL
Gates Law Firm, L.L.C., Phoenix
By S. Marie Gates
Counsel for Appellant
Arizona Attorney General’s Office, Phoenix
By Michael Valenzuela
Counsel for Appellee Department of Child Safety
JESSICA M. V. DCS, et al.
Decision of the Court
MEMORANDUM DECISION
Judge Margaret H. Downie delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Lawrence F. Winthrop joined.
D O W N I E, Judge:
¶1 Jessica M. (“Mother”) appeals an order terminating her
parental rights to sons S.L. and B.L. (collectively, “the children”). For the
following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY1
¶2 In June 2013, Mother left the children in Arizona with their
aunt and went to Texas. The children’s adult sister, A.R., later assumed
their care. 2
¶3 A guardian ad litem (“GAL”) who had been appointed for the
children in a guardianship proceeding filed a dependency petition in
August 2013. The petition listed Mother’s whereabouts as unknown, with
a last known address of Waco, Texas. Department of Child Safety (“DCS”)
served Mother by publication and submitted an “Affidavit of Diligent
Search and Unknown Residence” describing efforts to ascertain Mother’s
whereabouts.
¶4 At a November 14, 2013 hearing, the superior court found the
children dependent. On December 5, 2013, DCS filed a motion to vacate the
dependency finding because “[t]he Department was recently made aware
of the Mother’s current address and needs additional time to serve her with
the Dependency action.” The court granted the motion.
¶5 In January 2014, DCS moved to terminate Mother’s parental
rights on the grounds of abandonment. See Ariz. Rev. Stat. (“A.R.S.”) § 8-
533(B)(1). DCS served Mother by publication. Additionally, a process
server tried unsuccessfully to serve Mother at two different addresses.
1 On appeal, “[w]e view the facts in the light most favorable to upholding
the juvenile court’s order.” Ariz. Dep’t of Econ. Sec. v. Matthew L., 223 Ariz. 547,
549, ¶ 7, 225 P.3d 604, 606 (App. 2010).
2 The children’s father is deceased.
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JESSICA M. V. DCS, et al.
Decision of the Court
¶6 On March 28, 2014, Mother filed an affidavit to determine
eligibility for a court-appointed attorney. The court found Mother indigent
and appointed counsel to represent her. At a scheduled hearing Mother
attended that same day, the court found that “[s]ervice is accepted and
defects are waived by counsel for the mother regarding the dependency
petition and severance motion.” Mother advised that she wished to
challenge the dependency petition and severance motion.
¶7 DCS filed an amended severance motion that again alleged
abandonment and added two additional statutory grounds: out-of-home
placement for nine months or longer, see A.R.S. § 8-533(B)(8)(a), and
inability to discharge parental responsibilities due to a history of chronic
substance abuse, see A.R.S. § 8-533(B)(3). The superior court held a
consolidated severance and dependency trial over two days. In a ruling
filed January 23, 2015, the court ruled that DCS had proven all of the alleged
grounds for termination by clear and convincing evidence and also found
that termination was in the children’s best interests. Mother timely
appealed.
DISCUSSION
¶8 Mother does not challenge the statutory grounds for
termination or the best interest determination. Instead, she argues: (1) she
should have received court-appointed counsel earlier in the proceedings;
(2) the superior court made no dependency finding; and (3) the
“[u]nderlying dependency [is] based on erroneous information.”
I. Appointment of Counsel
¶9 In dependency and severance proceedings, the superior court
is required to appoint counsel for parents who are found to be indigent and
who are entitled to counsel. A.R.S. § 8-221(B). Shortly after the dependency
proceedings commenced, the court here entered an order that included the
following language under the caption “NOTICE TO PARENTS”:
You are advised that you and the child(ren) are entitled to
have an attorney present at the hearing and that, if you cannot
afford an attorney and want to be represented by an attorney,
one will be provided. A.R.S. § 8-841(D)4.
The order advised that counsel would be appointed for Mother “pending
the decision of the Court at the hearing. (The determination of appointment of
counsel may require the completion of a financial affidavit.).”
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JESSICA M. V. DCS, et al.
Decision of the Court
¶10 Until Mother appeared in the proceedings and completed a
financial affidavit, the superior court could not determine whether she
desired an attorney or whether she qualified for court-appointed counsel.
See Ariz. R.P. Juv. Ct. 38(B) (court shall determine indigence by ordering
party “to provide proof of financial resources by filing a financial
questionnaire provided by the court”). The same day Mother submitted
her financial information, the court appointed counsel. Mother was present
and represented by counsel from that point forward, including at the
severance/dependency trial. She never argued in the superior court that
anything more was required. See Cullum v. Cullum, 215 Ariz. 352, 355 n.5,
¶ 14, 160 P.3d 231, 234 n.5 (App. 2007) (As a general rule, a party cannot
argue on appeal legal issues not raised below.).
¶11 On this record, the superior court did not err by waiting to
appoint counsel for Mother until she appeared in the case and established
her entitlement to appointed counsel.
II. Dependency Finding
¶12 The minute entry from the first day of the
dependency/severance trial states: “THE COURT FINDS that the children
continue to be dependent according to the statutes.” An order issued after
the hearing’s conclusion states: “The Court also makes the following
findings by clear and convincing evidence: . . . 6. The children were found
dependent as to Mother.”
¶13 The court’s finding that the children “continue to be
dependent” (emphasis added) is admittedly not entirely accurate, as the
earlier dependency finding had been vacated at DCS’s request. The court
itself apparently recognized this fact at the outset of the trial, stating,
“There’s a dependency petition which has not been established as to Mother
as of yet.”
¶14 Mother, however, has not challenged the court’s findings and
conclusions regarding the severance order, which essentially render moot
any deficiencies in the dependency finding. See Rita J. v. Ariz. Dep’t of Econ.
Sec., 196 Ariz. 512, 515, ¶ 10, 1 P.3d 155, 158 (App. 2000) (allegedly deficient
order from permanency hearing essentially moot due to order terminating
parental rights). This is particularly true given the substantially higher
standard of proof required for a severance order. Compare A.R.S. § 8-537(B)
(parental rights may be severed only upon proof by clear and convincing
evidence) with A.R.S. § 8-844(C)(1) (dependency finding requires proof by
a preponderance of the evidence).
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JESSICA M. V. DCS, et al.
Decision of the Court
¶15 Mother’s due process arguments are also unavailing. She
received a full and fair opportunity to litigate the dependency issue. At the
beginning of each day of trial, the court advised that it was considering both
the dependency petition and the severance motion. Mother was not
restricted in her ability to present evidence regarding each matter.
¶16 Even if the issue is not moot, the record amply supports a
dependency finding. See Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz.
43, 50, ¶ 17, 83 P.3d 43, 50 (App. 2004) (if juvenile court fails to expressly
make a necessary finding, appellate court may examine record to determine
whether it supports the implicit finding). A dependent child is one who is
in need of proper and effective parental care and control and who has no
parent or guardian willing or capable of exercising such care and control.
A.R.S. § 8-201(14)(a)(i). By Mother’s own admission, she dropped the
children off at her sister’s home and left the state for two or three months.
A.R. eventually assumed the children’s care and unsuccessfully attempted
to contact Mother several times via telephone and through mutual
relations. After Mother contacted DCS in September 2013, she took one
drug test, which was positive for methamphetamine, and participated in
one visit, though others were scheduled. Except for one Facebook message
to A.R., Mother did not maintain contact with the children or provide
support. She admitted abusing drugs for at least nine years and again
tested positive for methamphetamine in March 2014. Under these
circumstances, ample evidence established that the children were
dependent.
III. Service of Process
¶17 Finally, Mother argues the “[u]nderlying dependency [is]
based on erroneous information.” Specifically, she claims DCS and the
GAL knew of possible addresses for her but served her by publication
instead of attempting personal service.
¶18 Mother has waived these arguments. She did not assert them
in superior court. See Snow v. Steele, 121 Ariz. 82, 85, 588 P.2d 824, 827 (1978)
(sufficiency of service must be raised in timely manner or it is deemed
waived); Pima Cnty. Juv. Action No. S-828, 135 Ariz. 181, 184, 659 P.2d 1326,
1329 (App. 1982) (“[A]ppearances and participation [in termination
proceedings] constitute a waiver of [the parent’s] claim of insufficient
service of process.”). Moreover, at the March 28, 2014 hearing that Mother
attended, her counsel accepted service and waived all defects regarding
both the dependency petition and the severance motion.
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JESSICA M. V. DCS, et al.
Decision of the Court
CONCLUSION
¶19 We affirm the judgment of the superior court.
:RT
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