In Re Termination of Parental Rights as to D.S.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

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

No. 1 CA-JV 25-0094
FILED 02-26-2026

Appeal from the Superior Court in Maricopa County
No. JD43514
The Honorable Joshua D. Rogers, Judge

VACATED AND REMANDED

COUNSEL

Vierling Law Offices, Phoenix
By Thomas A. Vierling
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By Ingeet P. Pandya
Counsel for Appellee Arizona Department of Child Safety
 IN RE TERM OF PARENTAL RIGHTS AS TO D.S.
Opinion of the Court

OPINION

Judge Michael J. Brown delivered the opinion of the Court, in which
Presiding Judge David B. Gass and Judge Andrew J. Becke joined.

B R O W N, Judge:

¶1 Parents have a “fundamental liberty interest in the care,
custody, and management of their children.” Kent K. v. Bobby M., 210 Ariz.
279, 284, ¶ 24 (2005). But these rights are not absolute, and may be
terminated in some circumstances, id., as long as the parents whose rights
are to be severed are provided with “fundamentally fair procedures” that
satisfy due process requirements, Santosky v. Kramer, 455 U.S. 745, 754
(1982). Such procedures include proper service of court filings affecting a
parent’s rights. See A.R.S. § 8-535(A). Without proper service, the juvenile
court cannot terminate parental rights. See In re Maricopa Cnty. Juv. Action
No. JS-5860, 169 Ariz. 288, 291–92 (App. 1991).

¶2 In this appeal, J.B. (“Mother”) challenges the juvenile court’s
order terminating her parental rights to her child, D.S. (“Child”), asserting
service of process was improper and thus she was denied due process.
Because Arizona Rule of Procedure for the Juvenile Court (“Rule”) 303
generally prohibits assigned counsel from accepting service if a parent has
not appeared in the proceeding, Ariz. R.P. Juv. Ct. 303(a)(3), and the record
does not otherwise show Mother’s assigned counsel was authorized to
accept service under Rule 303, Mother was not properly served.
Accordingly, the juvenile court lacked personal jurisdiction over Mother,
and we vacate the termination order as void.

BACKGROUND

¶3 Child was born in 2013. Between April 2023 and March 2024,
police officers encountered Child several times, unaccompanied in
dangerous or vulnerable circumstances. The Department of Child Safety
(“DCS”) received a report following another encounter when police found
Child panhandling without adult supervision in the middle of the night.
DCS had previously petitioned for dependency as to Mother’s older child,
D.M. (“Sibling”). At the preliminary protective hearing for Sibling, the
juvenile court appointed counsel to represent Mother. Because DCS could
not locate Mother, the court later approved service of the dependency

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 IN RE TERM OF PARENTAL RIGHTS AS TO D.S.
Opinion of the Court

petition by publication. According to the record provided, the same
counsel represented Mother in the proceedings related to Sibling from
October 2023 through at least June 2025.

¶4 After receiving notice of the incidents involving Child, DCS
tried to contact Mother, but she was unresponsive to several visits to the
home as well as numerous phone calls and text messages. Mother did
respond to an email, stating she was not in Arizona.

¶5 In April 2024, DCS filed a dependency petition as to Child and
the juvenile court scheduled an initial dependency hearing. In the order
setting the hearing, under the heading “Appointment of Counsel – Other
Parties,” the court assigned the same counsel representing Mother in
Sibling’s proceedings to represent Mother in this case. The court noted the
“determination of appointment of counsel may require the completion of a
financial affidavit.” Mother did not appear at the hearing, and the court
continued the hearing after finding service was incomplete as to Mother.
Because DCS could not locate Mother, DCS served Mother with notice of
the petition for dependency and related proceedings by publication. A.R.S.
§ 8-863(A); Ariz. R.P. Juv. Ct. 329(b)(4), (e); Ariz. R. Civ. P. 4.2(f). When
Mother failed to appear at the June 2024 publication hearing, the juvenile
court found Child dependent.

¶6 Several months later, in December 2024, DCS moved to place
Child in kinship foster care. The juvenile court addressed the motion at a
report and review hearing later that month. The court’s minute entry
shows that counsel assigned to Mother attended; Mother did not. The
minute entry also reflects that the court granted the motion over Mother’s
objection, presumably made by counsel on Mother’s behalf.

¶7 DCS eventually moved to terminate Mother’s parental rights
to Child on the grounds of abandonment, neglect, and nine months
in out-of-home placement. At the initial termination hearing, Mother did
not appear. DCS’s counsel said he was ready to proceed with termination
but noted service of process needed to be addressed. He then explained
that if Mother’s counsel was not prepared to accept and waive service, then
additional time would be needed for publication or personal service.
Mother’s counsel replied: “They don’t need to personally serve the motion
for severance on my client because I am her attorney and am still [] her
attorney of record, so service is complete upon me.” The court then stated
that “service is complete upon [M]other, based upon service on her
counsel.”

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 IN RE TERM OF PARENTAL RIGHTS AS TO D.S.
Opinion of the Court

¶8 A DCS case manager testified briefly about evidence
supporting the statutory grounds and Mother’s failure to engage with
reunification services. Near the end of the hearing, Mother’s counsel told
the court she had just received an email from Mother, “asking about the
hearing and [] for the information again. So I don’t know if she’s trying to
call in.” The court replied there were many people in the virtual “waiting
room, but none would appear to be [] [M]other. Did she indicate whether
she was having difficulty trying to connect?” Counsel replied that Mother
had not indicated she was having trouble connecting although she did ask
if the hearing had ended. Counsel then sent Mother the link, but she did
not join the hearing.

¶9 The court determined “[M]other was properly served”
through counsel “and had notice of these proceedings,” but she “provided
no good cause for [her] failure to attend.” Thus, the court found Mother
waived her rights and the allegations in the motion for termination were
deemed admitted. The court terminated Mother’s parent-child relationship
as to Child, finding DCS made diligent efforts to provide reunification
services, the evidence supported termination, and its decision was in the
child’s best interests. Mother timely appealed, and we have jurisdiction
under A.R.S. §§ 8-235(A), 12-120.21, and -2101(A)(1).

DISCUSSION

¶10 Mother argues the juvenile court lacked personal jurisdiction
over her because she was never properly served under Rule 303(a)(3), and
by proceeding in her absence, the court violated her due process rights.
DCS asserts that our review here is for fundamental error only. We
disagree. “Proper, effective service on a defendant is a prerequisite to a
court’s exercising personal jurisdiction over the defendant.” Barlage v.
Valentine, 210 Ariz. 270, 272, ¶ 4 (App. 2005). If service is not proper, the
court never acquires jurisdiction over the party, Angelica R. v. Popko, 253
Ariz. 84, 89, ¶ 14 (App. 2022), and any resulting judgment is void, Ariz. Real
Est. Inv., Inc. v. Schrader, 226 Ariz. 128, 129, ¶ 6 (App. 2010); see also Ariz. R.
Civ. P. 60(b)(4); Ariz. R.P. Juv. Ct. 318(c).

¶11 To determine whether Mother was properly served, we must
interpret the rules applicable to the termination of parental rights. In doing
so, we apply statutory construction principles. Spring v. Bradford, 243 Ariz.
167, 170, ¶ 12 (2017). “Under those principles, when a rule is unambiguous,
we apply it without further analysis.” Phillips v. O’Neil, 243 Ariz. 299, 301,
¶ 8 (2017) (citation modified). We read rules “in conjunction with each
other and harmonize them whenever possible.” Magee v. Olson, __ Ariz. __,

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Opinion of the Court

__, ¶ 9, 574 P.3d 1189, 1192 (App. 2025) (citation modified). “We review the
interpretation of statutes, court rules, and constitutional issues de novo.”
Brenda D. v. Dep’t of Child Safety, 243 Ariz. 437, 442, ¶ 15 (2018).

¶12 In 2021, our supreme court adopted a comprehensive
restyling and revision of the juvenile court rules. Ariz. Sup. Ct., Order No.
R-20-0044. The resulting rules took effect in July 2022 and include
procedural clarifications and substantive rule changes. As applicable here,
those changes included Rule 303), which governs “assignment” and
“appointment” of attorneys, and limits the power of “assigned” counsel to
accept service on behalf of a client during dependency, guardianship, and
termination proceedings. The rules require the juvenile court to “appoint”
counsel in compliance with Rule 303 for preliminary protective hearings,
initial dependency hearings, permanency hearings, initial guardianship
hearings, and initial termination hearings. See Ariz. R.P. Juv. Ct. 332(c)(1),
334(c)(1), 343(d)(3), 345(c)(2), 352(c)(2).

¶13 Mother points to the interplay of several rules, beginning with
Rule 351(d), which requires DCS to serve a parent with a motion for
termination of parental rights as provided by Rule 106 no later than ten
days before the initial termination hearing. Ariz. R.P. Juv. Ct. 351(d)(1).
Rule 106 says that service may be accomplished by serving the attorney of
record, but only after service of the case-initiating document by one of
several enumerated methods. Ariz. R.P. Juv. Ct. 106(a), (b)(1). And most
relevant here:

The assigned attorney is not attorney of record for purposes
of accepting service of process for a parent who has never
appeared in the proceeding unless the parent, after
communication with the assigned attorney, authorizes the
attorney in writing to accept service or the attorney avows on
the record that the parent expressly authorized the attorney
to accept service.

Ariz. R.P. Juv. Ct. 303(a)(3) (emphasis added).

¶14 Mother argues the juvenile court erred in finding service was
complete because DCS’s purported service of the motion for termination on
her “assigned” counsel does not comply with Rule 303(a)(3). Because the
court failed to appoint her counsel until the initial termination hearing, and
Mother never appeared, Mother argues her counsel was not authorized to
accept service of the termination motion under Rule 303.

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Opinion of the Court

¶15 At the initial termination hearing, DCS appropriately raised
the issue of service, inquiring whether assigned counsel had contact with
Mother and if counsel would accept and waive service. If not, DCS urged
the court to set a publication hearing and continue the hearing for about 75
days if “we cannot obtain personal service on Mother.” In response,
Mother’s counsel told the court service was complete because “I am . . . still
[] her attorney of record.” We presume Mother’s counsel believed she was
“still” the attorney of record because she was appointed to represent
Mother in proceedings related to Sibling.

¶16 Although counsel was “assigned” to represent Mother for
Child’s proceeding, that counsel was not the “attorney of record” for
Mother for purposes of accepting service of process. See Ariz. R.P. Juv. Ct.
303(a)(3). The court’s minute entry from the initial termination hearing says
the court appointed counsel for Mother, but our review of the transcript
reveals no such appointment. Cf. State v. Ovante, 231 Ariz. 180, 188, ¶ 39
(2013) (explaining that the transcript controls over the minute entry when
resolving a discrepancy). Because Mother’s counsel was not Mother’s
attorney of record for purposes of accepting service, she could not accept
service of the motion for termination as to Child under Rule 303(a)(3) unless
she had express authorization from Mother, or she avowed on the record
that Mother authorized her to accept service. The record does not reflect
express authorization and Mother’s counsel made no such avowal. Thus,
Mother was not properly served.

¶17 This court’s opinion in Maricopa County Juvenile Action No.
JS-5860, 169 Ariz. 288 (App. 1991), supports our analysis. In that case, the
Arizona Department of Economic Security (“ADES”) personally served the
mother with a petition for termination as to the mother’s youngest child.
Id. at 289. The mother did not appear at the termination hearing, and the
juvenile court continued the hearing and appointed counsel and a guardian
ad litem for the mother. Id. at 290. Later, the court permitted ADES to file
an amended petition seeking termination of parental rights as to the
mother’s two older children as well. Id. ADES served the amended petition
only on the mother’s guardian ad litem and appointed counsel. Id. This
court later affirmed the superior court’s order setting aside the termination
order as to the two older children, concluding the order was void based on
lack of service. Id. at 291. This court reasoned that the amended pleading
constituted a new or additional claim because “proof of additional facts
[was] required,” and because ADES sought “a more onerous judgment than
prayed for in the original pleading” by terminating the mother’s rights to
additional children. Id. (citation modified). Thus, this court concluded:

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 IN RE TERM OF PARENTAL RIGHTS AS TO D.S.
Opinion of the Court

[T]he amended petition required proof of additional facts
relating to the existence, paternity, and parental treatment of
the two older children and that the amended prayer sought a
judgment more onerous than prayed for in the original
petition. We therefore hold that the amendment to the
pleadings seeking severance of the two additional children
constituted two new claims or causes of action and not merely
the addition of supplemental issues to an existing cause of
action. Proper service upon the mother was required to give
the trial court jurisdiction to hear these new claims.

Id.

¶18 Similarly, Mother was served by publication in the
proceedings as to Sibling. The juvenile court appointed counsel to represent
Mother. DCS then petitioned for dependency to add Child to the
proceedings and served Mother with the petition by publication, given that
DCS was unable to personally serve her. The court assigned counsel for
Mother at the initial dependency proceeding, and as far as the record
reveals, the same counsel was present at each subsequent dependency
proceeding. Mother, however, never appeared in the dependency of Child
or attended any hearings. Like the parent in JS-5860, 169 Ariz. at 291,
proper service of Mother was necessary before the juvenile court could
proceed with termination of Mother’s parental rights.

¶19 DCS contends that Mother made a general appearance
because her counsel objected to DCS’s motion to change Child’s physical
custody to another family member at a report and review hearing. See Kline
v. Kline, 221 Ariz. 564, 569, ¶ 18 (App. 2009) (“A party has made a general
appearance when he has taken any action, other than objecting to personal
jurisdiction, that recognizes the case is pending in court.”); see also Montano
v. Scottsdale Baptist Hosp., Inc., 119 Ariz. 448, 452 (1978) (“[A] general
appearance by a party who has not been properly served has exactly the
same effect as a proper, timely and valid service of process.”); Ariz. R.P.
Juv. Ct. 329(b) (explaining that service in the juvenile court is governed by
Arizona Rules of Civil Procedure 4, 4.1, and 4.2); Ariz. R. Civ. P. 4(f)(3)–(4)
(detailing acceptance and waiver of service by appearing in court).

¶20 We are not persuaded that Mother made a general
appearance, implicitly waiving service of process, merely because her
assigned counsel, who was not yet the attorney of record for proceedings
related to Child, raised an objection at a hearing where Mother was not
present and had never been served with the motion for termination. See

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Opinion of the Court

Daniel Y. v. Ariz. Dep’t of Econ. Sec., 206 Ariz. 257, 260, ¶ 15 (App. 2003) (“The
waiver of constitutional rights is not easily presumed.”); see also Troxel v.
Granville, 530 U.S. 57, 65 (2000) (holding that parents have a fundamental
liberty interest in “the care, custody, and control of their children” under
the Fourteenth Amendment); Johnson v. Zerbst, 304 U.S. 458, 464 (1938)
(“[C]ourts indulge every reasonable presumption against waiver of
fundamental constitutional rights.” (citation omitted)). Also, finding
waiver here would require us to ignore the plain language of Rule 303(a)(3),
which specifically describes the limited circumstances when assigned
counsel may accept service. See Ariz. Dep’t of Revenue v. Action Marine, Inc.,
218 Ariz. 141, 143, ¶ 10 (2008) (“We . . . avoid interpretations that render
statutory provisions meaningless.”).

¶21 Finally, we recognize that Mother contacted her assigned
counsel near the end of the initial termination hearing. Although provided
with instructions for how to join the hearing virtually, Mother did not call
in to the hearing. While it appears Mother had actual notice of that hearing,
nothing in the record shows she was properly served with the motion for
termination of her parental rights to Child. And even if she had received
notice, actual notice does not mean we overlook lack of service. See Melton
v. Superior Court (Melton), 154 Ariz. 40, 42 (App. 1987) (explaining that
actual notice does not validate improper service); Endischee v. Endischee, 141
Ariz. 77, 79 (App. 1984) (rejecting argument that “any manner of purported
service will suffice so long as it gives the party actual knowledge of the
pendency of the action”).

CONCLUSION

¶22 Because the juvenile court’s order is void for lack of personal
jurisdiction over Mother relating to the motion for termination of parental
rights as to Child, we vacate the order. Thus, we do not address Mother’s
alternative argument that she received ineffective assistance of counsel.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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