In Re Term of Parental Rights as to R.S.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

IN RE TERMINATION OF PARENTAL RIGHTS AS TO R.S.

No. 1 CA-JV 23-0150
FILED 04-30-2024

Appeal from the Superior Court in Maricopa County
No. JS520376
The Honorable Thomas Marquoit, Judge Pro Tempore

REVERSED AND REMANDED

COUNSEL

John L. Popilek, PC, Scottsdale
By John L. Popilek
Counsel for Appellant Gerald S.

Udall Shumway, PLC, Mesa
By Steven H. Everts
Counsel for Appellee Angelica S.
 IN RE TERM OF PARENTAL RIGHTS AS TO R.S.
Decision of the Court

MEMORANDUM DECISION

Judge David D. Weinzweig delivered the decision of the Court, in which
Presiding Judge Andrew M. Jacobs and Judge Jennifer M. Perkins joined.

W E I N Z W E I G, Judge:

¶1 Gerald S. (“Father”) appeals the juvenile court’s order
denying his motion to set aside its ruling terminating his parental rights to
his daughter R.S. (“Child”). We reverse and remand.

FACTS AND PROCEDURAL BACKGROUND

¶2 Father and Angelica S. (“Mother”) are the biological parents
of Child, born in August 2007. Father and Mother were never married.

¶3 In May 2022, Mother petitioned to terminate Father’s parental
rights on the grounds of abandonment and drug abuse. Mother’s process
server made several unsuccessful attempts to serve Father over the course
of two weeks. The process server located Father’s correct address, but did
not reach the front door because Father lived in a gated community and his
name was not listed on the call box.

¶4 Afterwards, Mother filed an emergency motion for
alternative service pursuant to Arizona Rule of Civil Procedure 4.1(k). The
court granted the motion and ordered Mother to serve Father via
alternative service and publication. Mother tried to serve Father by email,
certified mail and publication.

¶5 In October 2022, the court held an initial severance hearing
and Father did not appear. The court found that Father lacked good cause
for his absence and terminated his parental rights on the grounds of
abandonment, but not drug abuse.

¶6 A month after the termination, Father filed a motion for access
to the documents in the case. The court granted that motion in January
2023. Father then moved to set aside the termination of his parental rights
in April 2023.

¶7 In July 2023, the court denied Father’s motion to set aside the
judgment, finding that Father did not act promptly to seek relief and his
delay was unreasonable.

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 IN RE TERM OF PARENTAL RIGHTS AS TO R.S.
Decision of the Court

¶8 Father timely appealed and we have jurisdiction. See A.R.S.
§§ 8-235(A), 12-120.21(A)(1), -2101(A)(1).

DISCUSSION

¶9 We review a trial court’s refusal to set aside a judgment for an
abuse of discretion. Hilgeman v. Am. Mortg. Sec., Inc., 196 Ariz. 215, 218, ¶ 7
(App. 2000).

I. Denial of Motion to Set Aside Judgment.

¶10 Proper service of process is necessary for a court to have
jurisdiction over a defendant. Ruffino v. Lokosky, 245 Ariz. 165, 168, ¶ 10
(App. 2018). A judgment is void if it was entered without proper service.
Id.; see also Matter of Adoption of Hadtrath, 121 Ariz. 606, 608 (1979)
(explaining a judgment is void if the court lacks jurisdiction over a party).
Rule 60(b)(4) authorizes the juvenile court to set aside a judgment when that
judgment is void. Ariz. R. Civ. P. 60(b)(4). See Ariz. R.P. Juv. Ct. 318(c) (“a
motion to set aside a final order must conform to the requirements of Civil
Rule 60(b) through (d)”).

¶11 The juvenile court denied Father’s motion to set aside the
termination order as void for lack of service as untimely under Rule
60(b)(4). Ariz. R. Civ. P. 60(b)(4). Mother concedes that was error because
a void judgment may be challenged at any time. Ruffino, 245 Ariz. at 169, ¶
10; see also Martin v. Martin, 182 Ariz. 11, 14 (App. 1994) (explaining there is
no time limit for bringing a motion to set aside a void judgment).
Accordingly, we vacate and remand for the juvenile court to reach the
merits of Father’s motion to set aside the judgment.

II. Service of Process.

¶12 Father next argues he was never properly served. We decline
to reach that issue for two reasons. First, the juvenile court never reached
that issue, having ruled that Father’s motion to set aside was untimely. See
State v. Vera, 235 Ariz. 571, 573, ¶ 8 (App. 2014) (“[W]e ordinarily do not
consider issues on review that have not been considered and decided by the
trial court.”). Second, the court held no evidentiary proceeding on the
service of process issue, so the record has limited facts to reach the issue.

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 IN RE TERM OF PARENTAL RIGHTS AS TO R.S.
Decision of the Court

CONCLUSION

¶13 We reverse the juvenile court’s denial of Father’s motion to
set aside the judgment and remand for the court to determine if Father was
properly served.

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

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