Appeal In Cochise County Juvenile Action No. 5666-J, Matter of, 15808-PR

• Citation: 133 Ariz. 157,650 P.2d 459
• Decision Date: 29 July 1982
• Docket Number: No. 15808-PR,15808-PR
• Parties: In the Matter of the APPEAL IN COCHISE COUNTY JUVENILE ACTION NO. 5666-J.
• Court: Supreme Court of Arizona

Page 459

650 P.2d 459

133 Ariz. 157

In the Matter of the APPEAL IN COCHISE COUNTY JUVENILE ACTION NO. 5666-J.

No. 15808-PR.

Supreme Court of Arizona,

In Banc.

July 29, 1982.

Rehearing Denied Sept. 14, 1982.

Robert K. Corbin, Atty. Gen., Phoenix, Jay W. McEwen, Asst. Atty. Gen., Tucson, for appellant.

Greenwood, Ryan, Herbolich & Atonna, Ltd. by James B. Greenwood and Wallace R. Hoggatt, Bisbee, for appellees.

GORDON, Vice Chief Justice:

Petitioner Drew filed this petition asking that we review the decision of the Court of Appeals, Division Two, 133 Ariz. ---, 650 P.2d 467 (1981). The Court of Appeals, reversing the order of the Juvenile Court, held that the seven Drew children should be declared dependent. One of the Drew children had died and Mrs. Drew has stated she would not seek medical care for any of the remaining children in the future. We have jurisdiction pursuant to Ariz.Const. Art. 6, § 5(3) and Ariz.R.Civ.App.P. 23. We vacate the decision of the Court of Appeals and affirm the dismissal of respondent-state's petition for the declaration of dependency.

The issue we must decide is if there was sufficient evidence to warrant state interference with the fundamental right of a parent to the custody and control of his or her child, particularly to "monitor" the health of the child when there is no known medical danger and when providing medical care is contrary to the parent's religious beliefs.

On March 20, 1981, Mrs. Drew took her six-year old son, Therial, to the emergency room of the Copper Queen Community Hospital in Bisbee, Arizona. Therial was pronounced "dead on arrival," and an autopsy revealed that the cause of death was "septicemia and peritonitis secondary to perforation of a strangulated inguinal hernia." This condition occurs when a part of the intestine protrudes out through a defective part of the abdominal wall. The intestine may and often does slip back into place. If the intestine gets caught, however, the blood supply to the area will be cut off, the tissue will die, and the bowel will become obstructed, eventually causing a rupture. Upon rupture the materials in the digestive tract spill into the abdominal cavity causing infection and possibly leading to cardiac arrest and death.

Because of the circumstances of Therial's death the physician who performed the autopsy contacted the Arizona Department of Economic Security [D. E. S.]. Two D. E. S. caseworkers visited the Drew residence on March 31, 1981 and interviewed Mrs. Drew for twenty minutes. In response to questioning, Mrs. Drew explained that she had faith that miracles would safeguard her children and she would not seek medical help if any of the remaining children became ill. D. E. S. subsequently filed a petition requesting that the seven Drew children be adjudged dependent.

A dependency hearing was held on July 23, 1981. After hearing testimony from two physicians, a superintendent of schools, and the two D. E. S. caseworkers, the court declined to adjudge the children dependent as defined in A.R.S. § 8-201(10). ¹ The juvenile court found that "the children are apparently well fed, neatly clothed, * * * attend school with some degree of regularity and they have a home which is clean and well kept." The Court of Appeals reversed the juvenile court and found there was sufficient evidence upon which to declare the seven Drew children dependent.

We must first decide, in light of Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), the standard of proof courts must apply in declaring children dependent. In Santosky the Supreme Court held that parents' right to the care and custody of their children could only be terminated by a standard of proof more strict than a preponderance of the evidence. Adopting a "clear and convincing" evidence test, the court noted that this "standard of proof strikes a fair balance between the rights of the natural parents and the State's legitimate concerns." Santosky, 455 U.S. at ----, 102 S.Ct. at 1402, 71 L.Ed.2d at 617. Arizona has complied with Santosky and instituted the clear and convincing standard. In re Pima County Juvenile Action No. S-919, 132 Ariz. 377, 646 P.2d 262, (1982). It is the opinion of this Court, however, that the Santosky mandate of the "clear and convincing" standard of proof is limited to parental severance cases and is not applicable in the present case, a dependency petition. "Termination denies the natural parents physical custody, as well as the rights ever to visit, communicate with, or regain custody of the child." Santosky, 455 U.S. at ----, 102 S.Ct. at 1392, 71 L.Ed.2d at 603. The Santosky Court reasoned that

"in any given proceeding, the minimum standard of proof tolerated by the due process requirement reflects not only the weight of the private and public interests affected, but also a societal judgment about how the risk of error should be distributed between the litigants."

Santosky, 455 U.S. at ----, 102 S.Ct. at 1395, 71 L.Ed.2d at 607.

In the instant case the state was not seeking permanent termination of all parental rights. Termination is an irrevocable decision. The permanency of termination dictates that it be resorted to in only the most extreme cases. The determination of dependency, however, is not an irreversible decision. It does not sever all contacts between child and parent, nor does it destroy all rights forever. Using the formula of the Supreme Court, the risk of error and the weighing of the private and public interests convinces us that the preponderance of the evidence standard is the proper standard of proof in dependency proceedings. See Ariz.R.P.Juv.Ct. 17(a)(2). ² Therefore, we must decide if the state has proved by a preponderance of the evidence that interference with the Drew family was warranted.

The Court of Appeals found dependency because there is "no parent or guardian willing to exercise" care, the Drew children are "not provided with the necessities of life," and the "home is unfit * * * by reason of abuse [or] neglect." ³ The Court of Appeals found that the threatened passive conduct involved here (the possible failure to maintain reasonable care by not providing medical care in the future) constituted present abuse as contemplated by the statutes.

The Court of Appeals failed to note that the Legislature had changed the definition of abuse. ⁴ The Court of Appeals cited:

"8-201(2.) 'Abuse' means the infliction of physical or mental injury or the causing of deterioration of a child and shall include failing to maintain reasonable care and treatment or exploiting or overworking a child to such an extent that his health, morals or emotional well-being is endangered."

On April 30, 1981 the Legislature changed the definition of abuse to:

"8.201(2.) 'Abuse' means the infliction of physical injury, impairment of bodily function or disfigurement or the infliction of serious emotional damage as evidenced by severe anxiety, depression, withdrawal or untoward aggressive behavior and which emotional damage is diagnosed by a medical doctor or psychologist as provided in § 8-223 and shall include inflicting or allowing sexual abuse as provided in § 13-1404, sexual conduct with a minor as provided in § 13-1405, sexual assault as provided in § 13-1406, molestation of a child as provided in § 13-1410, sexual exploitation of a minor as provided in § 13-3552, commercial sexual exploitation of a minor as provided in § 13-3553 or incest as provided in § 13-3608."

It is noteworthy that the current definition of abuse lacks the phrase "failing to maintain reasonable care" upon which the Court of Appeals relied in deciding the Drew children were abused children. Under Arizona case law and § 8-201 we find the Drew children are not abused. This oversight of the Court of Appeals, however, does not answer the issue of the case, for a dependent child can also be a child "whose parent is not willing to exercise parental care" or who is "not provided with the necessities of life."

It is not disputed that parents owe certain duties to their children. It is incumbent on a parent to provide "necessaries" for a child. The definition of necessaries is not a fixed term. What is necessary for the well-being of a child may be defined differently in different cultures or economic and social groups, and may change with the times.

Although we recognize the term "necessary" is flexible, the state may impose a minimum threshold of care a parent must provide any child. In general, a parent must provide a child with a place to live, clothing, an education, attention, and medical care as may be required. By necessity these are fluid terms and may depend on the financial wherewithal of the parents, cultural mores, etc. See Branham v. State, 33 Ariz. 170, 263 P. 1 (1928).

Accordingly, when we discuss the rights of the parent, the state, and the child, we must weigh and balance the interests of each. Hard and fast judicial rules are sometimes desirable because they increase predictability. But an inelastic rule would not further justice when, as here, we are concerned with a right so important and sensitive as that of parenting a child. Not only must these rights be balanced, but it must also be recognized that a great deal of discretion is vested in the trial court and in the administrative body, here the D. E. S., which feeds information to the court. Just as "what is necessary" is not a rigid definition, neither is the definition of "neglect," see In re Pima County Juvenile Action No. J-31853, 18 Ariz.App. 219, 501 P.2d 395 (1972), nor of "abuse."

The United States Supreme Court has consistently declared the significance of the family unit in American society. ⁵ The right to raise one's family is essential, see Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1925), and the right to procreate is one of the "basic rights" of all persons. Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942).

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