Fox-Embrey v. Neal

• Decision Date: 04 June 2020
• Docket Number: No. 2 CA-SA 2019-0045,2 CA-SA 2019-0045
• Citation: 467 P.3d 1102,249 Ariz. 162
• Parties: Lynn FOX-EMBREY, Petitioner/Real Party in Interest, v. Hon. Delia NEAL, Judge of the Superior Court of the State of Arizona, IN AND FOR the COUNTY OF PINAL, Respondent, and Shawn Main, Real Party in Interest/Cross-Petitioner.
• Court: Arizona Court of Appeals

249 Ariz. 162

467 P.3d 1102

Lynn FOX-EMBREY, Petitioner/Real Party in Interest,

v.Hon. Delia NEAL, Judge of the Superior Court of the State of Arizona, IN AND FOR the COUNTY OF PINAL, Respondent,andShawn Main, Real Party in Interest/Cross-Petitioner.

No. 2 CA-SA 2019-0045

Court of Appeals of Arizona, Division 2.

Filed June 4, 2020

Arizona Voice for Crime Victims, Phoenix, By Colleen Clase, Jessica Gattuso, and Robert Swinford, Counsel for Petitioner/Real Party in Interest

Weagant Law Offices PLLC, Florence, By Cody N. Weagant, and Law Office of Chester R. Lockwood, Jr., Apache Junction, By Chester R. Lockwood, Jr., Counsel for Real Party in Interest/Cross-Petitioner

Kent P. Volkmer, Pinal County Attorney, By Geraldine L. Roll, Deputy County Attorney, Florence, Counsel for State of Arizona

Presiding Judge Eppich authored the opinion of the Court, in which Judge Espinosa and Judge Eckerstrom concurred.

EPPICH, Presiding Judge:

¶1 In this special-action proceeding arising from a criminal case involving a charge of capital murder and multiple counts of child abuse, we are asked to address issues regarding the scope of disclosure a defendant is entitled to when records sought are privileged and confidential, and the victims have invoked their rights and protections under the Victims’ Bill of Rights. We are required to determine whether the respondent judge erred in applying the standard set forth in State ex rel. Romley v. Superior Court (Roper ), 172 Ariz. 232, 836 P.2d 445 (App. 1992), and its progeny, including State v. Kellywood , 246 Ariz. 45, 433 P.3d 1205 (App. 2018), placing limitations on certain documents she ordered disclosed for an in camera review, and denying the request for an in camera review of other protected records. We accept jurisdiction of the special-action petition filed by Lynn Fox-Embrey, the guardian of the minor victims, and the cross-petition filed by defendant Shawn Main. For the reasons stated, we deny Fox-Embrey relief but grant Main the relief she has requested.

Factual and Procedural Background

¶2 The facts and procedural history are based on the record the parties have provided and their briefing below and in this court. According to Main, in December 2014, D.C., A.C. and T.C., then ages five, four and three, respectively, and their pregnant mother moved into the home Main shared with her wife near Casa Grande. The children and their mother had been living in a hotel room with their paternal grandmother. The children were thin and ill when they arrived, and T.C. had received emergency medical treatment the previous day.

¶3 Also according to Main, on the morning of November 19, 2015, she awoke to the sound of T.C. vomiting and choking. Main picked up the child and noticed she was warm and was not breathing well. Main splashed water on T.C.’s face and cleared her airway but she did not respond. Main's wife began administering CPR. Main called 9-1-1 and began driving T.C. to a nearby hospital. Paramedics met Main along the way and took T.C. to the hospital, where she was pronounced dead. Main, her wife, and the children's mother were questioned at the Pinal County Sheriff's Office (PCSO). The following day, the medical examiner determined the cause of T.C.’s death was unexplained blunt force injuries to the head

.

¶4 T.C.’s siblings, D.C. and A.C., were transported to a location in Pinal County for forensic interviews and examinations by a sexual assault nurse examiner.¹ According to Fox-Embrey, law enforcement reports reflect that the children appeared to be the victims of physical abuse and neglect. D.C. apparently had a broken nose

and a facial injury, and both children appeared to be undernourished. Law enforcement officers alerted the Department of Child Safety (DCS). The children were removed from the home on November 19, 2015, and taken into protective custody. They were eventually placed with Fox-Embrey. On December 24, 2015, a couple of weeks after follow-up interviews, Main, her wife and the children's mother were arrested. Main was charged by indictment with first-degree murder of T.C., three counts of child abuse of T.C., child abuse of D.C. based on the broken nose and other head and facial injuries, and two counts of child abuse based on her having caused or permitted D.C. and A.C. to become malnourished. The state is seeking the death penalty on the murder charge.

¶5 According to Main, the state provided her with initial disclosure that included more than six hundred pages of the children's confidential medical records and DCS records, none dated after D.C. and A.C. were removed from the home on November 19, 2015. Main filed a number of motions seeking production of DCS records from and after that date, including medical and therapeutic records. In August 2016, Main filed her Third Motion for Court Order for Release of Confidential Records, seeking records from DCS or any agency or agent with which DCS had contracted from and after November 19, 2015, including records of the following: mental health, therapy, counseling, psychiatric, or psychological services provided; medical services; school records, including counseling and disciplinary records if they exist; and, audio, video and transcripts of statements or interviews of the children. Main argued the records might contain exculpatory or impeachment evidence, are relevant, probative, essential to justice, material to guilt or innocence or punishment, and "not unduly prejudicial or inflammatory," adding such disclosure is "clearly more important to the ‘interests of substantial justice’ than any protection that may extend as a result of the [privileged] relationship."

¶6 Pinal County Superior Court Judge White held a hearing in October 2016 on various outstanding motions. The state, Main and her counsel, counsel for DCS, and counsel who had been appointed by the juvenile court to represent D.C. and A.C. in the dependency proceeding and who Judge White appointed to represent the children as victims in the criminal proceeding, attended the hearing. Judge White ordered DCS to disclose to Main records in its possession related to Main and the children "with the exception of any records that are protected by confidentiality rules under State or Federal law," requiring any protected documents be provided to him "for an in-camera review to determine if any of the records are relevant." The judge noted the state claimed it already had disclosed many documents, and although it opposed disclosing counseling records directly to Main, it was willing to disclose them to the court for an in camera review. Counsel for the children asked the court to seal and conduct an in camera review of the confidential therapy and counseling records, and requested that, if the records were to be used for trial, they remain under seal and not disclosed to the public.² Judge White directed Main to lodge a formal order, which she did, but the order was never signed. In May 2018, Main filed a motion for an order directing the Casa Grande office of the Special Nutrition Program for Women Infants and Children, or WIC, to release records regarding all three children from January 2014 through December 31, 2015. WIC is a federal program that provides women and children nutritional assistance and education, and obtains a child's health information, including height and weight, when monthly benefits are renewed. It is operated through the Department of Health Services (DHS).

¶7 In July 2018, Fox-Embrey, by that time appointed as D.C. and A.C.’s guardian, filed a request for clarification through her counsel. Judge White granted her leave to file an objection to his prior order requiring disclosure, which she did, asking him to reconsider the in camera review of the victims’ protected records on the ground that the disclosure would violate their rights under the Victims’ Bill of Rights (VBR), Ariz. Const. art. II, § 2.1. The judge granted Main's request for an in camera review of the WIC records over Fox-Embrey's objection. He denied her subsequent motion for reconsideration, ordering that all documents, including the DCS records, be disclosed for in camera review.

¶8 Fox-Embrey filed a special action in this court. We accepted jurisdiction and granted relief, in part, directing the respondent judge to consider the issues raised in light of this court's decision in Kellywood . Fox-Embrey v. White (Main ), No. 2 CA-SA 2018-0084 (Ariz. App. Jan. 24, 2019) (order).

¶9 When the case was returned to Pinal County Superior Court, it was reassigned to the respondent judge, who conducted a review hearing in late January 2019. She directed the parties to submit memoranda identifying what records the state had disclosed to Main, and what records she continued to seek. Main filed three motions. The first was a Renewed Motion for Court Order for Release of T.C.’s Medical Records. The second was a Renewed Motion for Court Order for Release of Medical Records (D.C. and A.C.). Main asserted she was entitled to medical records to respond to the allegations that the children were malnourished and that D.C. had been physically injured, to explore possible genetic causes of malnourishment and the other alleged manifestations of abuse, and to find evidence regarding the children's truthfulness, reliability and credibility, including any evaluation of D.C. to determine whether he qualified for an autism

spectrum disorder diagnosis. Main argued she needed all of these records dating from the children's births to determine whether they had a genetic disorder that may have caused the pediatric trauma, injury and T.C.’s intracerebral hemorrhage. By seeking all medical records dating from the children's births, Main broadened the WIC records request. The third motion was Main's Renewed Motion for Court Order for Release of DCS Records, specifically therapeutic and other records from and after November 19, 2015. Fox-Embrey filed a memorandum objecting to the requested disclosure, including a...