Opinion
No. 1 CA-JV 13-0315
07-15-2014
JESSICA C., Appellant, v. DEPARTMENT OF CHILD SAFETY, T.C., Appellees.
Gillespie Shields & Durrant, Phoenix By DeeAn Gillespie Strub Counsel for Appellant Arizona Attorney General's Office, Mesa By Nicholas Chapman-Hushek Counsel for Department of Child Safety
NOTICE: NOT FOR PUBLICATION.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
JD510932
The Honorable Brian K. Ishikawa, Judge
AFFIRMED
COUNSEL
Gillespie Shields & Durrant, Phoenix
By DeeAn Gillespie Strub
Counsel for Appellant
Arizona Attorney General's Office, Mesa
By Nicholas Chapman-Hushek
Counsel for Department of Child Safety
MEMORANDUM DECISION
Judge Patricia A. Orozco delivered the decision of the Court, in which Presiding Judge John C. Gemmill and Judge Peter B. Swann joined. OROZCO, Judge:
¶1 Appellant Jessica C. (Mother) appeals from the trial court judgment adjudicating Mother's child, T.C. (Child), dependent as to Mother. Mother argues, among other issues, that the juvenile court erred in this decision because (1) Appellee Department of Child Safety (DCS) did not meet its burden of proving that Child was dependent, (2) the juvenile court made insufficient findings of fact and conclusions of law on the record to support its decision and (3) her due process rights were violated. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 On March 26, 2013, DCS filed a petition alleging Child was dependent as to Mother after assuming care of Child during Child's March 2013 hospital stay. The juvenile court conducted a five-day contested dependency hearing (trial) in September 2013. Following trial, the juvenile court found that DCS proved the allegations of the dependency petition by a preponderance of the evidence and adjudicated Child dependent because Mother was unable to safely parent Child due to physical abuse, neglect, and a failure to protect Child from physical abuse. The following facts were presented at trial.
¶3 Mother gave birth to Child, who was full term, in January 2013. In February, Child was hospitalized at Phoenix Children's Hospital (PCH) for two weeks in an attempt to correct Child's excessive oral secretions, aspiration, and other problems with feeding and weight gain. Child had lost weight since birth, and tests conducted at PCH revealed Child's inability to safely swallow liquids. As a result, doctors placed Child on a nasogastric feeding tube (NG tube).
¶4 PCH staff trained Mother on proper use of the NG tube and instructed Mother on how to properly feed Child. Although PCH records indicate that Mother was instructed to feed Child a twenty-four calorie formula, Mother fed Child a twenty-calorie formula. Dr. C., who evaluated Child in March, testified that even on the twenty-calorie formula he was receiving from Mother, Child still should have gained, not lost weight.
¶5 After Child's discharge from PCH in February, Mother took Child to see his pediatrician several times before Child was re-admitted to PCH in March 2013. Mother returned with Child to PCH's Emergency Department on March 18, 2013, concerned that Child was suffering from nasal congestion, difficulty breathing, and general fussiness. Hospital reports indicated that Child had lost weight since his February hospitalization. Doctors expressed concerns that Mother did not properly follow Child's feeding program.
¶6 Upon admission to PCH, two respiratory therapists (RTs) each deep suctioned Child to clear his airways. A later x-ray of Child's chest revealed multiple rib fractures. At trial, Mother asserted that the deep suctioning caused Child's broken ribs and entered an article from a Turkish Journal of Pediatrics into evidence that contained a case report of a baby who suffered unexplained broken ribs after that baby had been subjected to deep suctioning. However, Dr. C., a board-certified child abuse pediatrician, testified that it is a very rare instance that deep suctioning might break a child's ribs, she had never seen it before, and in her professional opinion the RTs could not have caused Child's fractures.
¶7 Doctors determined that these breaks were likely "nonaccidental" and notified DCS. DCS began an investigation and Dr. C. examined Child. Dr. C determined that Mother had improperly fed Child and that Child had a condition over his right chest wall called "crepitus," which was likely caused by Child's broken ribs. Dr. C. testified that there was no evidence that Child suffered from brittle bones or had any calcium or vitamin deficiencies. While Dr. C. did not know who harmed Child, she testified that in the absence of any good explanation, fractures like Child's occur from compression. Dr. C. opined that Child "was at risk of further injury" and could not safely return to Mother's care.
¶8 While Child was in the hospital, Mother offered no explanations for either Child's weight loss or the fractured ribs. Mother also did not communicate any concerns about the RTs or their treatment methods.
¶9 DCS took temporary custody of Child on March 21, 2013, and placed him in a foster home where Child thrived. Child gained weight in the foster placement, began eating well without the NG tube, and doctors subsequently removed the tube.
¶10 The DCS case manager (Case Manager) assigned to the case testified that her investigation uncovered a pattern of Mother's unhealthy relationships with partners where she was the victim of domestic violence, and Mother's various partners had substance abuse histories. Case Manager also testified that Mother was not a safe placement for Child due to her proclivity towards such unhealthy relationships and because Mother had failed to provide any plausible explanation for Child's injuries. Case Manager testified that any amount of weight loss in a baby Child's age, and while on an NG tube, was a cause for concern, regardless of whether it was only a small amount of weight. Mother, however, explained that Child was prescribed an antibiotic that caused diarrhea, which resulted in Child's weight loss. Finally, Case Manager testified that Mother was a safety risk because Child suffered serious injuries, and DCS could not rule out Mother as the person who caused Child's injuries.
¶11 Conflicting accounts of what happened during Child's March deep suctioning were presented at trial. For example, both of the RTs who suctioned Child testified that they never placed a hand on a baby's chest or compressed a baby's chest to complete a deep suctioning. Both RTs testified they had never heard of a child's rib being broken from deep suctioning. Both RTs testified that they use a swaddling technique before deep suctioning infants to prevent them from moving or hurting themselves. In contrast, the maternal grandmother (Grandmother) testified that she saw Child moving around, turning his head, arching his back and generally resisting the deep suctioning even after being swaddled. Grandmother and Mother both testified that one of the RTs physically restrained Child while performing the deep suctioning.
¶12 Leading up to and at trial, the juvenile court made various rulings with regard to discovery issues and witnesses Mother wished to present. First, the juvenile court denied Mother's request to depose various witnesses holding that depositions were not appropriate at that time in juvenile court proceedings, and a formal deposition would be too time consuming considering the fact that they were only a month away from trial. Therefore, the court allowed Mother's counsel to conduct recorded interviews, not depositions. Next, the juvenile court precluded Mother from calling Jan Duistermars, a RT who did not treat Child during his hospital stay, to testify as an expert at trial after Mother's counsel did not timely disclose the witness to opposing counsel. The juvenile court also precluded Child's pediatrician, Dr. S., from appearing telephonically at trial because the motion for telephonic appearance was untimely filed. Finally, the juvenile court ruled that Dr. C. could not be recalled to the stand because Mother's counsel already had the opportunity to cross-examine Dr. C., counsel had excused Dr. C. after the first day of trial, and Mother's substitute counsel, who was standing in for the day while Mother's counsel had a conflict, never mentioned that Dr. C. may need to be recalled.
¶13 After taking the issue under advisement, the juvenile court held that Child was dependent. The juvenile court also found Mother was "unable to safely parent her child due to physical abuse and due to neglect and failure to protect a child from physical abuse."
¶14 Mother timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, Arizona Revised Statutes (A.R.S.) sections 8-235.A (2014), 12-120.21.A.1 (2003), and -2101.A.1 (Supp. 2013).
We cite to the current version of the applicable statutes when no material revisions have since occurred.
DISCUSSION
I. Dependency Adjudication Hearing Pursuant to Rule 55 of the Arizona Juvenile Court Rules of Procedure
A. Sufficiency of the Evidence
¶15 Mother essentially challenges the sufficiency of the evidence to support the juvenile court's finding that the allegations of the dependency petition were established. "We will not disturb the juvenile court's determination unless reasonable evidence does not support its factual findings." Ariz. Dep't of Econ. Sec. v. Matthew L., 223 Ariz. 547, 549, ¶ 7, 225 P.3d 604, 606 (App. 2010). We look to the record to determine whether reasonable evidence supported the juvenile court's order. See Christy C. v. Ariz. Dep't of Econ. Sec., 214 Ariz. 445, 451-52, ¶ 19, 153 P.3d 1074, 1080-81 (App. 2007) ("When considering the trial court's express findings, we affirm the trial court's order if the facts at trial support the trial court's findings whether or not each supportive fact is specifically called out by the trial court in its findings."). "We view the facts in the light most favorable to upholding the juvenile court's order." Matthew L., 223 Ariz. at 549, ¶ 7, 225 P.3d at 606.
¶16 The juvenile court has a "great deal of discretion" in determining whether a child is dependent because the "primary consideration in a dependency case is always the best interest of the child." Ariz. Dep't of Econ. Sec. v. Cnty. of Maricopa, 178 Ariz. 236, 239, 871 P.2d 1172, 1175 (App. 1994). We will not reweigh the evidence because "the juvenile court was in the best position to weigh the evidence, judge the credibility of the parties, observe the parties, and make appropriate factual findings." In re Pima Cnty. Dependency Action No. 93511, 154 Ariz. 543, 546, 744 P.2d 455, 458 (App. 1987). We believe the evidence in this case satisfied the definition of a dependent child pursuant to A.R.S. § 8-201.13(a)(iii).
¶17 A dependent child is one whose "home is unfit by reason of abuse, neglect, cruelty or depravity by a parent, a guardian or any other person having custody of the child." A.R.S. § 8-201.13(a)(iii). In its dependency petition, DCS alleged that Child's home was unfit because Child sustained numerous injuries while in Mother's care, and Mother or the other adults living in the home with Child were unable to provide a plausible explanation for Child's injuries. DCS further alleged that continuation in the home would be contrary to Child's welfare. At trial, DCS presented evidence supporting these allegations, while Mother presented evidence attempting to contradict the allegations.
¶18 At trial, DCS presented evidence of Child's injuries and the likelihood of such injuries occurring without abuse or neglect. Moreover, DCS presented evidence that Child thrived in his new placement. Because Mother could not be ruled out by DCS as the perpetrator of Child's injuries, the juvenile court did not abuse its discretion in finding that a dependency adjudication was in Child's best interests. We conclude there was sufficient evidence presented at trial to support the juvenile court's ruling finding Child dependent as to Mother.
B. DCS's Investigation
¶19 Mother also argues that DCS did not complete its statutory duty to conduct a thorough investigation, pursuant to A.R.S. § 8-802.C.5(b) (requiring DCS to make "a prompt and thorough investigation" upon receiving any report of child abuse or neglect). Mother asserts, "DCS shirked its statutory duty and performed no investigation." We disagree.
¶20 Title 8 does not provide us with a definition of what actions constitute a "thorough investigation." See A.R.S. § 8-801 (2014). Thus, we may use a standard dictionary definition of the term to give us guidance. See Rigel Corp. v. State, 225 Ariz. 65, 69, ¶ 19, 234 P.3d 633, 637 (App. 2010); see also A.R.S. § 1-213 (2002) ("Words and phrases shall be construed according to the common and approved use of the language."). Webster's dictionary defines "thorough" as "carried through to completion" or "careful about detail." Merriam-Webster's Collegiate Dictionary 1301 (11th ed. 2012). It also defines "investigation" as "an official inquiry" or a "systematic examination." Id. at 659.
¶21 From the record before us, we determine, among other things, that Dr. C. examined Child at PCH, specifically because PCH employees were concerned that Child's injuries were non-accidental. As a board-certified child abuse pediatrician, Dr. C. specializes in evaluating and treating children for suspected abuse and neglect. Dr. C. testified that she did not know who fractured Child's ribs, but opined the fractures were likely caused from compression and "[Child] was at risk of further injury."
¶22 Beyond the investigation of Child's injuries at PCH, DCS conducted an investigation of the home. Case Manager testified that she took over Child's case after receiving it from DCS's Investigations Department. Case Manager testified that her department conducted an investigation and determined that the safest place for Child was in an out-of-home placement. Case Manager testified about concerns of domestic violence and drug use present in the home, facts she learned through her investigation in the case. Case Manager also reported that Child had gained weight in his new placement and was taken off the NG tube.
¶23 DCS's duty is to: "(1) promote the safety and protection of children"; and to "(2) accept, screen and assess reports of abuse or neglect." A.R.S. § 8-802.C. DCS's investigations conducted by Dr. C. and Case Manager revealed Child was likely at risk of further injury. Based on the record before us, DCS perhaps did not conduct the investigation that Mother would have liked, but DCS performed an investigation of the case nonetheless. We therefore conclude that DCS conducted an "official inquiry," which it "carried through to completion." This is the standard definition of a thorough investigation. Therefore, we do not agree with Mother that DCS failed to meet its statutory burden of conducting a prompt and thorough investigation of this case. II. Adequacy of Findings Pursuant to A.R.S. § 8-844 and Rule 55
¶24 When the juvenile court adjudicates a child dependent as to a parent, A.R.S. § 8-844 and Arizona Rule of Juvenile Court Procedure 55 require the juvenile court to make specific findings of fact in support of dependency. See A.R.S. § 8-844.C.1(a) (2014); Ariz. R.P. Juv. Ct. 55.E.3. The primary purpose for requiring a court to make express findings of fact and conclusions of law is to allow this court to determine exactly which issues were decided and whether the juvenile court correctly applied the law. Ruben M. v. Ariz. Dep't of Econ. Sec., 230 Ariz. 236, 240, ¶ 24, 282 P.3d 437, 441 (App. 2012). Rule 55.E guides the juvenile court to enter findings including findings that: (1) the juvenile court has personal and subject matter jurisdiction to hear the case; (2) dismiss the petition if the petitioner failed to meet its burden of proof; (3) alternatively, if the petitioner, DCS has met its burden of proof, the court must "set forth specific findings of fact in support of finding a dependency and adjudicate the child dependent as defined by law"; (4) conduct or set a disposition hearing and order the preparation of a disposition report; and (5) enter orders concerning the placement and custody of the child pending disposition; among several other findings not relevant here. Ariz. R.P. Juv. Ct. 55.E.3.
¶25 Mother argues on appeal that "the juvenile court's December 13, 2013, decision makes no specific findings in support of a dependency." The juvenile court's December 11, 2013, order, however, provides:
The Court has considered the testimony and reviewed the exhibits admitted into evidence and considered the written closing statements. Based on the evidence presented,
THE COURT FINDS pursuant to the rules of procedure for the juvenile court, that the allegations of the petition are true by a preponderance of the evidence and that [Child], is dependent as to [Mother] as defined by the Arizona Revised Statutes.
THE COURT FINDS that [Mother] is unable to safely parent her child due to physical abuse and due to neglect and a failure to protect a child from physical abuse.
IT IS ORDERED that [Child] be made a ward of the court, committed to the care, custody and control of [DCS].
¶26 These findings and conclusions are, admittedly, sparse and may not fully comply with the requirements of A.R.S. § 8-844.C.1(a) and Rule 55.E.3. But the content of this ruling is sufficient to allow appellate review of the juvenile court's decision. Additionally, our review of the record reveals no objection from Mother to the juvenile court's findings. To the extent that more detailed findings of fact and conclusions of law may have been preferable, Mother has waived her argument by failing to request more detailed findings from the juvenile court prior to appealing. See Christy C. v. Ariz. Dep't of Econ. Sec., 214 Ariz. 445, 452, ¶ 21, 153 P.3d 1074, 1081 (App. 2007) (recognizing that "a party may not sit back and not call the trial court's attention to the lack of a specific finding on a critical issue, and then urge on appeal that mere lack of a finding on that critical issue as a grounds for reversal."). III. Constitutional Concerns: Mother's Due Process Rights
¶27 Mother argues on appeal that she was denied due process throughout the dependency proceedings because she was denied the testimony of essential witnesses and denied the opportunity to depose witnesses or enter transcripts at trial. We disagree. "The essential requirements of procedural due process are reasonable notice and an opportunity to be heard." Willie G., 211 Ariz. at 235, ¶ 18, 119 P.3d at 1038. Based on our review of the record, Mother received both.
DCS argues that Mother waived this argument by failing to raise the issue below. Mother, however, did raise a due process concern in her motion for enlargement of time to extend the trial for additional time.
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¶28 "Normally, we review evidentiary rulings for abuse of discretion." Ruben M., 230 Ariz. at 239, ¶ 13, 282 P.3d at 440. Additionally, we view the facts in the light most favorable to sustaining the juvenile court's ruling. Id. at ¶ 17.
A. Discovery Rulings
¶29 Mother first argues she was denied due process because the juvenile court denied her request to formally depose various witnesses. We disagree. "Juvenile proceedings are governed by the Rules of Procedure for the Juvenile Court." Yavapai Cnty. Juv. Action No. 7707, 25 Ariz. App. 397, 399, 543 P.2d 1154, 1156 (1975). These rules advise the juvenile court that the "conduct of the contested dependency adjudication hearing shall be as informal as the requirements of due process and fairness permit." S.S. v. Cnty. of Maricopa, 178 Ariz. 423, 424, 874 P.2d 980, 981 (App. 1994) (quoting Ariz. R.P. Juv. Ct. 16.1(b)). On a case-by-case basis, the juvenile court has the inherent power to "order such discovery as it deems necessary." Id. at 425, 874 P.2d at 982. Arizona Rule of Procedure for the Juvenile Court 44 states that "disclosure shall be made in the least burdensome and most cost effective manner." Ariz. R.P. Juv. Ct. 44.A. This rule also authorizes the court to approve methods of discovery about which the parties cannot reach an agreement. Ariz. R.P. Juv. Ct. 44.E. Therefore, discovery decisions are left within the sound discretion of the juvenile court because there is no constitutional guarantee to discovery; discovery is simply a matter of legislative grace and judicial procedure. See Seattle Times Co. v. Rhinehart, 467 U.S. 20, 32 (1984). We will not disturb the juvenile court's decision absent an abuse of discretion. See Ruben M., 230 Ariz. at 239, ¶ 13, 282 P.3d at 440.
¶30 Mother's counsel requested that the juvenile court allow her to depose three witnesses because DCS would not agree to the depositions. The juvenile court denied this request because it was too close to the time set for trial to make the proper arrangements to take the depositions and there were less restrictive means of getting discovery. The juvenile court held that it would be appropriate for Mother to interview those witnesses and record the interviews. Although not excluded from the scope of disclosure options in juvenile court, depositions are not included as a discovery method to be used in juvenile court. See Ariz. R.P. Juv. Ct. 44.A. Thus, since a recorded interview was less burdensome and more cost effective than a deposition, the juvenile court did not abuse its discretion in denying Mother's request to conduct various witness depositions, and Mother was not denied due process when the juvenile court denied her request to take depositions. Mother still had access to the witnesses and was able to conduct interviews prior to trial. Therefore, the juvenile court preserved Mother's due process rights.
B. Rulings at Trial
¶31 Mother also argues that she was denied due process when the juvenile court denied her request to present the testimony of RT Jan Duistermars, to telephonically present the testimony of Child's pediatrician, Dr. S. and to allow Dr. C. to be recalled to the stand to testify after she was released by both sides. We disagree that these evidentiary determinations were denials of due process.
¶32 "Unless otherwise ordered by the court, the parties may supplement the list of witnesses . . . to be used at the adjudication hearing no later than ten (10) days prior to the hearing." Ariz. R.P. Juv. Ct. 44.F. Therefore, the juvenile court did not abuse its discretion in denying both of Mother's untimely requests to use these witnesses. First, the juvenile court did not permit RT Jan Duistermars to testify because this witness was disclosed three days before the start of trial. Second, the juvenile court denied Mother's request to have Dr. S. appear telephonically because Mother made the request the day Dr. S. was scheduled to testify. Finally, the juvenile court denied Mother's request to recall Dr. C. in Mother's case-in-chief because Mother's counsel had an opportunity to cross-examine Dr. C., and Dr. C. was excused from the stand without Mother asserting that her side would have more questions for Dr. C.
¶33 If a party does not adhere to the deadlines set forth in Rule 44.B.2, the trial court has discretion to impose sanctions under Rule 44.G. "Sanctions may include precluding the evidence." Ariz. R.P. Juv. Ct. 44.G. These evidentiary decisions were within the discretion of the juvenile court. Mother had an opportunity to cross-examine the witness; therefore, there are no due process concerns here. See Maricopa Cnty. Juv. Action No. JD-561, 131 Ariz. 25, 28, 638 P.2d 692, 695 (1981) ("In the interests of fairness and impartiality, this court concludes that, absent stipulation of the parties, parents are denied due process of law when refused the right to cross-examine their children during a dependency hearing.").
CONCLUSION
¶34 For the reasons discussed above, we affirm the juvenile court's decisions