Jacqueline B. v. Dcs, G.B.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JACQUELINE B., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, G.B., Appellees.

No. 1 CA-JV 21-0057
FILED 9-9-2021

Appeal from the Superior Court in Yuma County
No. S1400JD20190538
The Honorable R. Erin Farrar, Judge
The Honorable Kathryn Stocking-Tate, Judge Pro Tempore

AFFIRMED

COUNSEL

Elizabeth M. Brown, Goodyear
Counsel for Appellant

Arizona Attorney General’s Office, Mesa
By Amanda Adams
Counsel for Appellee Department of Child Safety
 JACQUELINE B. v. DCS, G.B.
Decision of the Court

MEMORANDUM DECISION

Judge Samuel A. Thumma delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Chief Judge Kent E. Cattani
joined.

T H U M M A, Judge:

¶1 In this termination of parental rights proceeding, which
began with a dependency petition filed in late 2019, counsel for Jacqueline
B. (Mother) seeks to challenge the court’s finding that the Department of
Child Safety (DCS) properly served Mother by publication. Because counsel
for Mother has shown no reversible error, the finding that Mother was
properly served by publication is affirmed. As a result, the order
terminating Mother’s parental rights to her biological child G.B. is final.

FACTS AND PROCEDURAL HISTORY

¶2 DCS had contact with Mother beginning in November 2016,
when in connection with the birth of another child, Mother admitted using
methamphetamine while pregnant. In July 2017, after Mother failed to
engage in services, her parental rights to that child were terminated.

¶3 At G.B.’s birth in October 2019, both Mother and G.B. tested
positive for amphetamines. When interviewed by DCS, Mother had no
explanation for the positive tests; “could not provide a home address;” “did
not know where she would be residing after discharge;” had no baby
supplies and had no suggestions for safety plan members. Although
Mother provided the father’s name, she provided no contact information
for him. When taking G.B. into care at the hospital, DCS gave Mother the
names, phone numbers and an address for DCS representatives.

¶4 DCS filed a dependency petition and personally served
Mother in December 2019 where she was living in Wellton in Yuma County.
Mother, however, failed to appear at any dependency or termination
hearings. Nor has she participated in any services offered by DCS following
G.B.’s birth. At an early January 2020 hearing, Mother’s counsel advised the
court that a letter she had sent to Mother was returned as undeliverable. At
that same hearing, G.B. was found dependent as to Mother, after she failed

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 JACQUELINE B. v. DCS, G.B.
Decision of the Court

to appear without good cause. On motion of G.B.’s guardian ad litem, the
court changed the case plan to severance and adoption.

¶5 DCS’ January 2020 motion for termination alleged
abandonment and chronic substance abuse by Mother, including use of
methamphetamine. The court originally found service of the motion was
made through Mother’s attorney. However, the court later determined that
the attorney had never been appointed to represent Mother in the
termination, because Mother had never appeared in the termination
proceedings. At an April 2020 hearing, the court vacated its finding that
Mother had been served through counsel, indicated service by publication
was appropriate and set an August 31, 2020 publication hearing. At the
April 2020 hearing, the participants also discussed a report that Mother had
been deported to Mexico.

¶6 The attorney appointed to represent Mother in the
dependency proceeding was never appointed to represent Mother in the
termination proceeding. That lack of appointment explained why service
through counsel was not effective. But for reasons not apparent from the
record, the attorney assigned (but never appointed) to represent Mother in
the termination proceeding advocated on Mother’s behalf throughout that
proceeding.

¶7 On four consecutive weeks in May and June 2020, DCS
published notice of the August 31, 2020 hearing in a Yuma County
newspaper. DCS also provided information to the court and the parties
about attempts to locate Mother. In July 2020, DCS provided: (1) an
“Affidavit of Publication” (showing service by publication for the August
31, 2020 hearing); (2) a “Certificate of Non-Service” (recounting, under
penalty of perjury, unsuccessful attempts to serve Mother at her Wellton
residence, stating she no longer lived there); and (3) a “Declaration of
Diligent Search and Unknown Residence.” The Declaration stated, under
penalty of perjury, that (a) Mother’s current residence “is still unknown”
and (b) “[a]fter researching the sources” attached (apparently including
social media and “Mexico – Central Authority & practical information”),
Mother had not been located. An August 2020 Affidavit of Service By
Publication recounted much of this same information, adding that “[a]
diligent investigation was conducted [to locate Mother], also without
success;” that Mother’s “whereabouts . . . remain unknown” and that a copy
of the motion to terminate was mailed to Mother at her Wellton address but
was returned as undeliverable in June 2020.

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 JACQUELINE B. v. DCS, G.B.
Decision of the Court

¶8 At the August 31, 2020 publication hearing, the court found
that service by publication was appropriate because DCS made a diligent
effort to locate Mother, but had been unsuccessful in doing so, and that
service by publication was complete as to Mother. When DCS said it had
not contacted the Mexican Consulate (given Mother’s reported
deportation), the court continued the hearing to November 2020 so that
DCS could “do an international parent locate.”

¶9 Before the November 2020 hearing, DCS provided a response
from the Consul of Mexico in Tucson explaining that, without more
information about Mother (including her place of birth in Mexico), “there
is not sufficient material to expand our searching efforts.” At the November
2020 hearing, DCS relayed information that Mother “was never deported.”
Instead, in early 2019, she was released from U.S. Immigration and Customs
Enforcement (ICE) custody on bond and was on fugitive status after
missing an ICE hearing in late 2019. DCS added that Mother’s location was
unknown, attempts to contact her on Facebook failed and that Mother never
contacted DCS, even though she knew DCS had custody of G.B. As a result,
DCS asked the court to find that it had undertaken diligent efforts to locate
Mother. Counsel assigned to represent Mother objected, noting ICE
provided more potential phone numbers for Mother and that Father’s
counsel had provided another Facebook profile for Mother. The court
continued the hearing to late December 2020 to allow DCS to make
additional efforts to try to locate Mother.

¶10 At the December 2020 hearing, DCS reported that the phone
numbers ICE provided were not for Mother. Counsel for Father stated she
had recently contacted a Facebook account asking if it was Mother’s profile
(but not mentioning the hearing), and the response received was that it was
Mother’s account. After recounting DCS’ repeated efforts to contact
Mother, over the objection of counsel assigned to represent Mother, the
court found Mother was properly served by publication; that DCS had
proven the grounds for severance and granted the motion terminating
Mother’s parental rights to G.B. Although objecting, counsel assigned to
represent Mother did not indicate that she knew where Mother was located
or how Mother could be contacted. That same attorney then filed a notice
of appeal to this court.

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 JACQUELINE B. v. DCS, G.B.
Decision of the Court

DISCUSSION

¶11 Recognizing this court has an independent obligation to
assess jurisdiction, Jessicah C. v. Dep’t of Child Safety, 248 Ariz. 203, 205 ¶ 8
(App. 2020), it is unclear whether Mother has properly invoked this court’s
appellate jurisdiction. Although the attorney assigned to represent Mother
purported to file a notice of appeal, as noted above, the record does not
show that attorney was ever appointed to represent Mother in the
termination proceedings. Nor did Mother, who has never appeared in the
termination proceedings, file a notice of appeal on her own behalf. It
therefore appears that no proper, timely appeal has been filed by or on
behalf of Mother, suggesting this court lacks appellate jurisdiction. See Ariz.
R.P. Juv. Ct. 104(B) (2021).1 Even if this court has appellate jurisdiction,
however, Mother has shown no error in the finding that DCS properly
served Mother by publication.

¶12 Conceding service by publication is governed by Ariz. R. Civ.
P. 4.1(1), Mother argues “DCS did not make reasonably diligent efforts to
find Mother’s current address, and DCS did not explain why service by
publication was the best means by which to give Mother notice of the
Motion.” But assigned counsel for Mother never proffered to the superior
court an address or contact information for Mother while the termination
motion was pending. Nor did assigned counsel ever represent to the court
that she had been in contact with Mother. Accordingly, Mother’s arguments
regarding lack of due diligence by DCS are unpersuasive.

¶13 As applicable here, service by publication is proper if (1) DCS,
“despite reasonably diligent efforts, has been unable to ascertain the
person’s current address” and (2) “service by publication is the best means
practicable in the circumstances for providing the person with notice.” Ariz.
R. Civ. P. 4.1(l). On the record provided, the court did not err in finding
DCS made these required showings.

¶14 Historically, “reasonably diligent efforts” require searching
publicly-available information to seek to identify the location of an
individual. Sprang v. Petersen Lumber, Inc., 165 Ariz. 257, 261 (App. 1990)
(citing Preston v. Denkins, 94 Ariz. 214, 222–23 (1963) and Omega II
Investment Co. v. McLeod, 153 Ariz. 341, 342 (App. 1987)). More recently,
“reasonably diligent efforts” also includes attempting to make contact via
electronic means. Ruffino v. Lokosky, 245 Ariz. 165, 169 ¶ 14 (App. 2018). This

1Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.

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 JACQUELINE B. v. DCS, G.B.
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obligation does not, however, require a party to search “every channel
possible” before service by publication may be proper. Id. at 170 ¶ 18.

¶15 Contrary to the arguments Mother advances, the record
supports the court’s finding that DCS undertook “reasonably diligent
efforts” to locate Mother that failed. DCS called the phone number Mother
gave in the hospital after G.B.’s birth, without success. For months, DCS
conducted parent locates, searched state and federal databases, court
records, ICE deportation records and messaged Mother on what appeared
to be her social media account, all without success. Although DCS may not
have searched every channel possible, it was not required to do so to show
“reasonably diligent efforts.” Id. at 169 ¶ 14. Mother has not shown that her
contact information was readily available or that the court erred in finding
DCS made reasonably diligent efforts to locate her. Nor has Mother shown
that, as a result of these reasonably diligent efforts, the court erred in
finding that service by publication was the best means practicable in the
circumstances. Ariz. R. Civ. P. 4.1(l).

¶16 To the extent Mother argues a finding of due diligence was
required before service by publication could begin, she places form over
substance. The DCS effort to find Mother was ongoing until the December
2020 hearing. Ultimately, those efforts -- taken by DCS over many months
-- failed to produce contact information for Mother.

¶17 To the extent that Mother relies on language in Sprang to
support her argument, in context, that case stands for a different
proposition. Sprang stated that “[a] finding of due diligence prior to service
by publication is a jurisdictional prerequisite.” 165 Ariz. at 262. It did so,
however, in affirming a decision to set aside a default judgment, not in
delineating the procedure required for service by publication. Id. (noting
court “properly set aside the default judgment”). But as noted in the
primary authority cited by Sprang, it is the information in the sworn
statement supporting service by publication that provide the basis for
jurisdiction, not whether a finding of due diligence precedes service by
publication. Preston v. Denkins, 94 Ariz. 214, 223 (1963) (“The jurisdiction of
the court to enter any judgment must rest on the affidavit in support of
service by publication.”).

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 JACQUELINE B. v. DCS, G.B.
Decision of the Court

¶18 Finally, although Mother challenges the affidavits and other
information provided by DCS, she has shown no error by the court in
considering those affidavits. Given the substantial efforts undertaken by
DCS, over many months, she has not shown that DCS failed to comply with
Rule 4.1(1) authorizing service by publication. Finally, because Mother has
shown no error in the court’s findings that Mother was properly served by
publication, this court need not address DCS’ arguments that any error was
invited by Mother. State v. Kemp, 185 Ariz. 52, 60 (App. 1996) (noting, under
doctrine of invited error, “a party cannot complain about a result he [or she]
caused”).

CONCLUSION

¶19 The superior court’s finding that Mother was properly served
by publication is affirmed and the order terminating Mother’s parental
rights to her biological child G.B. is final.

AMY M. WOOD • Clerk of the Court
FILED: AA

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