In re the Appeal in Maricopa County Juvenile Action No. JS-5860

818 P.2d 723, 169 Ariz. 288, 98 Ariz. Adv. Rep. 42, 1991 Ariz. App. LEXIS 291
CourtCourt of Appeals of Arizona
DecidedOctober 22, 1991
DocketNo. 1 CA-JV 90-029
StatusPublished
Cited by6 cases

This text of 818 P.2d 723 (In re the Appeal in Maricopa County Juvenile Action No. JS-5860) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re the Appeal in Maricopa County Juvenile Action No. JS-5860, 818 P.2d 723, 169 Ariz. 288, 98 Ariz. Adv. Rep. 42, 1991 Ariz. App. LEXIS 291 (Ark. Ct. App. 1991).

Opinion

OPINION

TAYLOR, Presiding Judge.

The Arizona Department of Economic Security (ADES) and Jewish Family and Children’s Services (JFCS) jointly appeal from the order of the Maricopa County Juvenile Court setting aside a previous order terminating the appellee’s parental rights to two of her minor children. The trial court granted the appellee’s Rule 60(c) motion to void judgment, concluding that the prior order of the court was void for lack of personal jurisdiction.

FACTS AND PROCEDURAL BACKGROUND

Appellee is the natural mother of the three minor children designated herein as Baby Boy, Minor Boy, and Minor Girl. On March 5, 1984, these three children were adjudged dependent children and made wards of the Maricopa County Juvenile Court. The natural mother, then unrepresented and incarcerated, did not attend the dependency hearing. Baby Boy had been a temporary ward of the court since approximately ten days after his birth.

On March 5,1984, the mother was served personally a petition to terminate her parental rights to Baby Boy. The petition alleged as grounds for termination abandonment by the father and the mother, as [290]*290well as the mother’s inability to discharge parental responsibilities due to mental illness stemming from long-time abuse of drugs. It was further alleged that such condition was likely to continue for a prolonged period because of the mother’s refusal of assistance. At the time of service of the petition, the mother was also served with notice of the severance hearing scheduled for April 30, 1984.

The mother did not appear at the severance hearing as originally scheduled. The court ordered the matter continued and appointed a guardian ad litem for the mother, pursuant to Ariz.Rev.Stat.Ann. [hereinafter A.R.S.] § 8-535 (appointment of a guardian ad litem required in termination proceedings involving an allegedly incompetent parent). Later, the court, on its own motion, appointed counsel for the mother.

Following the appointment of the guardian ad litem, the court permitted the filing of an amended petition seeking termination of parental rights to the mother’s other two children, Minor Boy and Minor Girl.

It is undisputed that this amended petition was never served personally upon the mother. It is also undisputed that both the mother’s guardian ad litem and her attorney received the amended petition and that neither of them had contact with the mother. The attorney filed a response to the amended petition, generally denying the allegations of neglect and abandonment. The response did not raise the issue of lack of service of process, nor was incomplete service of process ever raised as a defense by either the attorney or the guardian ad litem. Service by publication was not attempted.

On January 22,1985, the severance hearing was held and the mother’s parental rights to Baby Boy, Minor Boy, and Minor Girl were terminated on the grounds of abandonment. The maternal grandmother of the children testified at the severance trial. From this testimony, the court found that the mother maintained sufficient contact with the grandmother to know what was taking place in the proceedings and that she failed to take any action toward getting her children returned to her.

The mother’s appointed counsel appealed the judgment of the trial court, challenging only the sufficiency of the evidence. The mother was unaware of the appellate proceedings. By memorandum decision, this court affirmed the judgment of the trial court.

On December 28, 1989, the mother, with the assistance of court-appointed counsel, filed a motion to set aside the severance order as it related to Minor Boy and Minor Girl. The mother offered little explanation regarding her five-year silence on the matter.

The trial court granted the mother’s motion and set aside the order terminating her parental rights to Minor Boy and Minor Girl on the grounds that the order was void due to lack of service of process as to these two children. This appeal timely challenges that order.

DISCUSSION

The dispositive issue in this case is whether there was adequate service of process. A.R.S. § 8-535(A) provides for notice as follows: “After the petition has been filed, the clerk of the superior court shall set a time and place for hearing. Notice thereof shall be given to the parents of the child ... and the guardian ad litem of any party as provided for service of process in civil actions.” (Emphasis added.) In severance proceedings, service of process need not be sufficient to confer in personam jurisdiction over the adverse party so long as it otherwise comports to service of process in civil actions. In re Appeal in Maricopa County, Juvenile Action No. JS-734, 25 Ariz.App. 333, 338, 543 P.2d 454, 459 (1975). Whatever method of service is utilized, it must give notice sufficient to meet the requirements of due process. See Sleeper v. Killion, 166 Iowa 205, 214, 147 N.W. 314, 317 (1914), cited with approval in Ronan v. First Nat’l Bank of Ariz., 90 Ariz. 341, 346, 367 P.2d 950, 953 (1962).

The purpose of process is twofold: (1) It provides the parties with notice of the action, and (2) it vests the court with juris[291]*291diction. Marks v. LaBerge, 146 Ariz. 12, 15, 703 P.2d 559, 562 (App.1985) (citing Scott v. G.A.C. Finance Corp., 107 Ariz. 304, 486 P.2d 786 (1971)). The trial court lacks jurisdiction to enter a judgment adverse to a party when there is a lack of proper service on that party. Kadota v. Hosogai, 125 Ariz. 131, 134, 608 P.2d 68, 71 (App.1980) (citing Marquez v. Rapid Harvest Co., 99 Ariz. 363, 409 P.2d 285 (1965)).

We first examine the mother’s argument that the amended petition seeking severance of the two older children amounted to “new or additional claims for relief” requiring service pursuant to Rule 5(a), Arizona Rules of Civil Procedure.1 The test to determine whether a new or additional claim is alleged is whether proof of additional facts is required. Wilson v. Bramblett, 91 Ariz. 284, 288, 371 P.2d 1014, 1016 (1962) (citing Kunselman v. Southern Pac. R.R. Co., 33 Ariz. 250, 259, 263 P. 939, 941 (1928)). Service of the amended petition on a non-appearing party is required when the claimant “seeks a more onerous judgment than prayed for in the original pleading.” 62B Am.Jur.2d Process § 135 (1990). Appellants do not seriously dispute these principles of law or that they apply in this case. They contend rather that service was in fact accomplished upon the mother’s attorney and guardian ad litem.

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Bluebook (online)
818 P.2d 723, 169 Ariz. 288, 98 Ariz. Adv. Rep. 42, 1991 Ariz. App. LEXIS 291, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-appeal-in-maricopa-county-juvenile-action-no-js-5860-arizctapp-1991.