Opinion
No. 1 CA-CV 13-0720
12-02-2014
JENNIFER G., Plaintiff/Appellant, v. ARIZONA DEPARTMENT OF CHILD SAFETY, Defendant/Appellee.
COUNSEL Troy Richmond Hendrickson, PLLC, Tempe By Troy R. Hendrickson Counsel for Plaintiff/Appellant Arizona Attorney General's Office, Phoenix By JoAnn Falgout Counsel for Defendant/Appellee
NOTICE: NOT FOR PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED. Appeal from the Superior Court in Maricopa County
No. LC2012-000577-001
The Honorable Crane McClennen, Judge
AFFIRMED
COUNSEL Troy Richmond Hendrickson, PLLC, Tempe
By Troy R. Hendrickson
Counsel for Plaintiff/Appellant
Arizona Attorney General's Office, Phoenix
By JoAnn Falgout
Counsel for Defendant/Appellee
MEMORANDUM DECISION
Judge Samuel A. Thumma delivered the decision of the Court, in which Presiding Judge Margaret H. Downie and Judge Andrew W. Gould joined. THUMMA, Judge:
¶1 Jennifer G. (Mother) challenges an administrative decision finding substantiation for an allegation that she neglected her child, which is included on the central registry of the Arizona Department of Economic Security (Department) maintained under Arizona Revised Statutes (A.R.S.) section 8-804 (2014). Mother contends this finding is not supported by substantial evidence, is inconsistent with the legal definition of neglect and resulted from an improper shifting of the burden of proof. Finding no legal error or abuse of discretion, the decision is affirmed.
Absent material revisions after the relevant dates, statutes and rules cited refer to the current version unless otherwise indicated.
FACTS AND PROCEDURAL HISTORY
This court views the evidence in the light most favorable to upholding the agency's decision. Baca v. Ariz. Dep't of Econ. Sec., 191 Ariz. 43, 46, 951 P.2d 1235, 1238 (App. 1997).
¶2 In June 2011, Child Protective Services (CPS), a division of the Department, received a hotline report that Mother neglected her nearly three year old daughter L.G. on a ground that ultimately was not substantiated and is not subject to this appeal. Chandler police followed up on the allegations with a visit to Mother's home. Mother answered the door, told the officers that she and L.G. had been asleep and allowed them to enter the home. According to the police report, Mother volunteered that she had a gun inside a dresser in her bedroom. The revolver was inside a gun bag and loaded with six rounds in the cylinder. The police report states that "[t]he weapon was removed from the top drawer and rendered safe." Mother later testified that the doors to L.G.'s and Mother's bedrooms were shut before the police officers arrived and that L.G. was unable to open even unlocked doors. During the police officers' visit, L.G. was asleep in her bedroom across the hallway from Mother's room.
¶3 In January 2012, the Department, through the Protective Services Review Team (PRST), notified Mother in writing that it intended to enter a finding of neglect in its central registry based on a ground that ultimately was not substantiated. Among other things, central registry information is used "[a]s a factor to determine qualifications for persons who are employed or who are applying for employment with this state in positions that provide direct service to children or vulnerable adults." A.R.S. § 8-804(B)(2); see also Ariz. Admin. Code (A.A.C.) R6-5-5501(11). In February 2012, Mother timely requested an administrative hearing on this proposed finding of neglect, and submitted evidence to rebut the allegation pursuant to A.R.S. § 8-811(C).
¶4 In late April 2012, the PRST sent Mother an additional notice revising the basis for its proposed finding of neglect to include an allegation that Mother had neglected L.G. "by failing to provide supervision when she allowed . . . a loaded handgun to be in the home within reach of the child placing [L.G.] at unreasonable risk of harm for injury" and death.
¶5 An administrative hearing was set for May 2012, then continued by stipulation to July 2012, and later continued by stipulation to August 2012. At the August 2012 hearing, where Mother was represented by counsel, Mother testified, as did the Department's Steven Sparrold. All exhibits tendered were admitted without objection, including the police report and CPS investigation findings. In a five-page decision containing findings of fact and conclusions of law, an Office of Administrative Hearings administrative law judge (ALJ) found the Department had shown probable cause to sustain the neglect finding based on evidence that Mother allowed "an unsecured and loaded handgun to be in the home within reach of the child placing [the child] at unreasonable risk of harm for injury and death." The Department accepted without modification the ALJ's decision and directed the entry of a substantiated neglect finding in the central registry.
¶6 Mother timely filed a complaint with the superior court, seeking review of the final administrative decision. See A.R.S. §§ 12-904, - 905. Mother argued that a critical finding of fact in the administrative decision was not supported by substantial evidence and that the ALJ had reversed the burden of proof and abused his discretion by admitting hearsay. Concluding there was substantial evidence to support the administrative decision, and that the decision was not contrary to law, arbitrary, capricious or an abuse of discretion, the superior court affirmed. Mother timely appealed the superior court's decision pursuant to A.R.S. § 12-913 and Arizona Rule of Civil Appellate Procedure 9(a) and this court has jurisdiction pursuant to A.R.S. §§ 12-2101(A)(1) and 12-913.
DISCUSSION
I. Standard Of Review.
¶7 This court "shall affirm the agency action unless after reviewing the administrative record and supplementing evidence presented at the evidentiary hearing the court concludes that the action is not supported by substantial evidence, is contrary to law, is arbitrary and capricious or is an abuse of discretion." A.R.S. § 12-910(E). This court will affirm if that decision "is supported by any reasonable interpretation of the record." Baca v. Ariz. Dep't of Econ. Sec., 191 Ariz. 43, 46, 951 P.2d 1235, 1238 (App. 1997). Although this court defers to administrative factual findings, legal issues are subject to de novo review. See id. at 45, 951 P.2d at 1237. Neither this court nor the superior court will "weigh the evidence to see if we would find some evidence more or less persuasive or give it more or less significance." Shaffer v. Ariz. State Liquor Bd., 197 Ariz. 405, 409 ¶ 20, 4 P.3d 460, 464 (App. 2000).
II. The Department's April 2012 Notice.
¶8 For the first time in her reply brief filed in this court, Mother argues the Department deprived her of adequate notice when she was not given the opportunity to submit evidence regarding the handgun issue during the pre-hearing review stage. In essence, Mother argues that because the handgun issue was first raised in the late April 2012 additional notice (after her February 2012 request for administrative hearing in response to the January 2012 original notice), she lost "the opportunity to attempt to dissuade" the Department from pressing the handgun issue at the August 2012 administrative hearing.
¶9 Mother failed to raise this issue: (1) administratively, (2) with the superior court or (3) with this court until her reply. Indeed, Mother only raised the issue after the Department candidly identified the omission in its answering brief before this court. Accordingly, Mother waived the issue. See Romero v Sw. Ambulance, 211 Ariz. 200, 203-04 ¶¶ 6-7, 119 P.3d 467, 470-71 (App. 2005); see also Ariz. R. Civ. App. P. 13(c). Moreover, on the merits, Mother's claim fails.
¶10 The relevant statute here, A.R.S. § 8-811, does not expressly provide that the Department may add an additional ground for a proposed finding of neglect after a parent requests a hearing. Arguably, the April 2012 additional notice may have deprived Mother of an opportunity to attempt to convince the Department not to proceed on the handgun ground. Mother, however, points to no evidence that she would have presented to the Department, and no attempts she made or would have made to do so. Moreover, Mother (1) knew of this handgun allegation by late April 2012, (2) makes no claim that she could not have attempted to convince the Department not to proceed at that time and (3) had nearly four months to prepare to address the issue at the August 2012 administrative hearing. Without objection, Mother then addressed the handgun issue at that hearing on the merits. Mother does not identify any additional evidence she would have provided to rebut the proposed substantiated handgun finding if it had been included in the January 2012 notice (as opposed to the April 2012 additional notice). On this record, even absent waiver, Mother has not shown that she was denied adequate notice of the handgun issue.
¶11 Mother also argues that the failure to comply with A.R.S. § 8-811 deprived the ALJ of jurisdiction to adjudicate whether probable cause supported a substantiated neglect finding. Mother is correct in arguing that subject matter jurisdiction can be raised for the first time on appeal. Swichtenberg v. Brimer, 171 Ariz. 77, 82, 828 P.2d 1218, 1223 (App. 1991). Subject matter jurisdiction, however, concerns a tribunal's "statutory or constitutional power to hear and determine a particular type of case." State v. Maldonado, 223 Ariz. 309, 311 ¶14, 223 P.3d 653, 655 (2010). Here, the ALJ has the statutory power to hear and determine challenges to proposed substantiated findings of neglect. See A.R.S. § 41-1092.01(E). Mother offers no legal authority, and this court has found none, for her argument that a potential violation of A.R.S. § 8-811 deprived the ALJ of the power to hear and determine the case. Accordingly, Mother has not shown that the ALJ lacked subject matter jurisdiction in this case.
III. Substantial Evidentiary Support.
¶12 Mother argues that the ALJ improperly relied on impermissible hearsay and testimony not based on personal knowledge and that, fairly viewed, the admissible evidence received does not constitute substantial evidence supporting the finding of probable cause that Mother neglected L.G. as defined in A.R.S. § 8-201.
A. Admissible Evidence.
¶13 Mother argues Sparrold's testimony was hearsay and lacked personal knowledge, an issue reviewed for an abuse of discretion. See Epperson v. Indus. Comm'n, 26 Ariz. App. 467, 471, 549 P.2d 247, 251 (1976). As set forth in the Department's April 2012 notice, in administrative hearings like this one, "[a]ll relevant evidence is admissible" unless its "probative value is outweighed by the danger of unfair prejudice." A.R.S. § 41-1092.07(D). Reliable hearsay is admissible if it is the type of information "reasonable [people] are accustomed to rely [on] in serious affairs." See Wieseler v. Prins, 167 Ariz. 223, 227, 805 P.2d 1044, 1048 (App. 1990) (citing Begay v. Ariz. Dep't of Econ. Sec., 128 Ariz. 407, 410, 626 P.2d 137, 140 (App. 1981)).
¶14 Contrary to Mother's argument, Sparrold's testimony concerning his recommendation derived in part from his own involvement in Mother's case. Sparrold spoke with Mother directly and reviewed the Department's file, including the police report describing the handgun. Based upon his work and personal knowledge, Sparrold created Exhibit 1, a summary that concluded Mother had neglected L.G. "by failing to provide supervision when she allowed . . . a loaded handgun to be in the home within reach of [L.G.] placing [L.G.] at unreasonable risk of harm for injury . . . and death." Mother stipulated to the admission of all exhibits, including this summary. To alleviate Mother's hearsay concern, the ALJ explained at the outset that the existence of hearsay would affect the weight he would give to any evidence presented, and multiple hearsay might not be reliable.
¶15 On this record, Mother has not shown that the ALJ improperly admitted into evidence, or improperly considered, impermissible hearsay and testimony not based on personal knowledge.
B. Substantial Evidence That Mother Neglected L.G.
¶16 In addition to disputing the admissibility of the Department's evidence, Mother challenges the ALJ's Finding of Fact 3:
[Mother] testified that the child could not open doors and that [Mother's] bedroom door was always closed. She also testified that the top dresser drawer was too tall for the child to reach and was difficult to open because it was partially broken. While [Mother] submitted evidence of the height of the top drawer
(Exhibit E-45 inches) and the height of the child ([Mother's] testimony-33 inches), her testimony that the child could not open doors, that the doors were always closed, and that the drawer was too tall for her to reach was not corroborated by any other evidence.Mother claims there was not substantial evidence to support these findings, meaning related conclusions of law cannot stand, and that these findings are insufficient to satisfy the legal standard for neglect.
¶17 Mother does not appear to challenge the first two sentences of Finding of Fact 3, and the first part of the third sentence (summarizing the child's height and the height of the top drawer), which appear to accurately summarize Mother's testimony. Although summarily asserting that "the police report corroborates her testimony and the photos provided by [Mother] corroborated her testimony," Mother has not shown how the police report and photographs received by the ALJ could corroborate her testimony that the child could not open doors, that the doors were always closed or that the child could not reach the drawer.
¶18 Moreover, the ALJ received substantial evidence supporting a finding of neglect. Among other things, Mother testified that she left a gun in the top dresser drawer, which the police report described as loaded with six rounds in the revolver. Mother further testified that L.G. was walking and "very bright" and that Mother was not "planted next to [L.G.] at all times." And, although the top dresser drawer is taller than L.G., the ALJ noted "common knowledge" that children can stand on things to reach other things. These facts support the conclusion that the neglect allegation was substantiated. See Tonette E. v. N.Y. State Office of Children & Family Servs., 807 N.Y.S.2d 694, 695 (N.Y. App. Div. 2006) (holding that the presence of loaded guns in a house provided substantial evidence of imminent physical danger to the child).
Mother contends that Sparrold testified solely about the unsubstantiated ground for neglect, and not about the gun. To the contrary, Sparrold provided evidence about the gun when testifying that factors in his decision included "other risks." Sparrold's recommendation cites both the gun and the unsubstantiated conduct as grounds to support the neglect finding.
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¶19 Citing her own testimony, Mother disputes the finding that L.G. had access to the handgun and that she failed to supervise L.G. The ALJ, however, was not required to accept Mother's testimony. See Hamilton v. Municipal Court, 163 Ariz. 374, 377, 788 P.2d 107, 110 (App. 1989). Moreover, credibility determinations are the ALJ's alone; this court does not reweigh the evidence. See Shaffer v. Ariz. State Liquor Bd., 197 Ariz. 405, 409 ¶ 20, 4 P.3d 460, 464 (App. 2000) ("Even if the record supports inconsistent conclusions, neither we nor the superior court may substitute our judgment for that of the ALJ . . . because conflicting evidence can still be substantial.") (internal quotation marks omitted); Gutierrez v. Gutierrez, 193 Ariz. 343, 347-48 ¶ 13, 972 P.2d 676, 680-81 (App. 1998) (deferring to fact finder's determination of witness credibility and weight accorded to conflicting evidence); Hamilton, 163 Ariz, at 378, 788 P.2d at 111 (noting appellate court does not weigh evidence in deciding whether substantial evidence exists to support the decision).
¶20 Mother argues that the police officers were unable to open the top dresser drawer, meaning L.G. could not have opened the drawer, and that the ALJ misinterpreted the police report by assuming the police officers (not Mother) had opened the drawer. Mother, however, did not testify that she opened the drawer for the police officers. Similarly, the police report stated: "[t]he weapon was removed from the top drawer and rendered safe." The ALJ could reasonably conclude from this evidence that the police opened the drawer, and that L.G. also could do so. Similarly, Mother has not shown an abuse of discretion by the ALJ finding Mother's testimony that L.G. could not even open a normal interior door was "simply not believable, without corroboration."
¶21 The ALJ's ruling reflects that he found the exhibits more persuasive than Mother's testimony on key points. The ALJ was in the best position to evaluate the evidence presented and the credibility of witnesses. See In re Wainola's Estate, 79 Ariz. 342, 346, 289 P.2d 692, 695 (1955) (explaining court need not believe testimony of interested witnesses).
¶22 Similarly, Mother has not shown that the evidence of record could not support a finding of neglect. As applied, "neglect" is the "inability . . . of a parent . . . to provide that child with supervision . . . if that inability . . . causes unreasonable risk of harm to the child's health or welfare." A.R.S. § 8-201(24)(a). Here, viewed in a light most favorable to sustaining the award, the Department demonstrated that Mother left a loaded revolver in a drawer in her home that L.G. (who was not yet three years old) could access. Inherent in the ALJ's decision is a finding that L.G., a bright and mobile child, was not supervised every moment of every day because Mother admittedly could not watch her all the times and had knowingly left a loaded revolver in an unlocked drawer. The evidence permitted the ALJ to reach that conclusion, and this court defers to his credibility assessment in doing so.
IV. The ALJ Did Not Shift The Burden Of Proof To Mother.
¶23 Mother's final argument is that the ALJ erroneously shifted the burden of proving probable cause from the Department to her, based on the ALJ's statement that Mother could not corroborate her testimony. Citing A.R.S. § 8-811, however, the ALJ's decision clearly and correctly stated that the Department "must show that probable cause exists to sustain its finding that [Mother] engaged in the alleged abuse or neglect." It is true that the ALJ noted, in assessing credibility, that Mother's testimony that L.G. could not gain access to the gun "because it was in [Mother's] bedroom with the door closed and the child cannot open doors", was "self-serving" testimony and "was not corroborated." This observation, however, does not constitute shifting the burden of proof; rather, it reflects a permissible analysis of Mother's credibility and the lack of alternative evidentiary support.
¶24 Although Mother contends the police report and photos corroborate her testimony, the ALJ properly could have found that was not the case. The police report states that "[t]he weapon was removed from the top drawer and rendered safe." Although silent as to who removed the handgun, Mother did not testify that she had to open the drawer for the officers. Furthermore, the photos and hearing testimony do not negate the possibility that L.G. (who was nearly three feet tall) could not reach or stand on other furniture to reach the top drawer handle, which was 45 inches tall. This evidence does not undercut the possibility, as determined by the ALJ, that L.G. could gain access to the dresser drawer and the gun by standing on something or through other means.
¶25 Finally, Mother could have corroborated her testimony by calling other witnesses with knowledge of the dresser and L.G.'s capabilities. She did not do so. For these reasons, the ALJ correctly observed that Mother's testimony was not corroborated, and in doing so, the ALJ did not shift the burden to Mother.
CONCLUSION
¶26 Finding no legal error or abuse of discretion, the superior court's order affirming the Department's decision is affirmed.