Appeal in Maricopa County Juvenile Action No. JS-7499, Matter of
| Decision Date | 10 October 1989 |
| Docket Number | CA-JV,No. 1,JS-7499,1 |
| Citation | 786 P.2d 1004,163 Ariz. 153 |
| Parties | In the Matter of the APPEAL IN MARICOPA COUNTY JUVENILE ACTION NO.88-041. |
| Court | Arizona Court of Appeals |
This is an appeal and cross-appeal from an order terminating the parent-child relationship between a father and daughter on grounds of wilful abuse. Prior to the institution of proceedings in this matter, the father, a staff sergeant in the United States Air Force, had been convicted by general court martial of committing a number of sexual offenses against the child. The father has appealed from the order terminating his parental rights, raising the following issues:
(1) Did the juvenile court deny the father due process of law by:
(a) admitting into evidence a transcript of the child's court martial testimony in order to establish the allegation of wilful abuse;
(b) refusing to permit the father to confront and cross-examine the child at the severance hearing?
(2) Did the juvenile court err in its findings regarding the sentence imposed against the father upon his military conviction?
The Department of Economic Security (DES) has filed a cross-appeal, also arguing that the juvenile court erred in its findings regarding the sentence imposed against the father.
In April 1985, the child, then seven-and-a-half years of age, reported that her father had been sexually abusing her for years. He denied the accusations. The mother chose to believe the father rather than the child, who was declared dependent and placed in foster care. In October 1985, the father was convicted by a general court martial of rape, sodomy, and indecent acts with the child. The sentence initially imposed included a prison term of twenty-five years and dishonorable discharge from the service.
The father appealed his conviction. In 1986, the United States Air Force Court of Military Review modified the findings of guilt on grounds that some of the charges regarding indecent acts with a minor were time-barred. In all other respects, the court affirmed the general court martial's findings of guilt and the sentence imposed.
The father petitioned for further review by the Court of Military Appeals, which granted review and, in April 1988, set aside the decision of the court of review and remanded for further proceedings. Upon remand, the court of review set aside all of the findings of guilt that pertained to charges of indecent acts with a minor, but reaffirmed those pertaining to the rape and sodomy charges. The court also set aside the sentence previously imposed and ordered rehearing thereon. As of June 6, 1989, the date of oral argument on the appeal now before us, the father had been resentenced and was again pursuing a military appeal.
Meanwhile, the child has been in foster care since the report of abuse in 1985. In June of 1987, DES filed a petition to terminate the relationship between the child and both of her parents. 1 As grounds for terminating the father's rights, the petition alleged that he had been deprived of civil liberties due to conviction of a felony, the nature of which shows his unfitness to have the future custody and control of his child and that he had been sentenced to a term of imprisonment of such length as to deprive the child of a normal home for a period of years. See A.R.S. § 8-533(B)(4). The social study that accompanied the petition identified a further ground for termination--that the father had wilfully abused the child. See A.R.S. § 8-533(B)(2).
The father contested the petition. In December of 1987, after a hearing at which the father was unable to appear, Juvenile Court Judge Edward C. Rapp entered an order granting the petition and terminating the parent-child relationship. However, we reversed that ruling because it had been issued before a transcript of the father's telephonic deposition had become available for the juvenile court's consideration. See Matter of Appeal in Maricopa County Juvenile Action No. JS-7499, 1 CA-JUV 88-006 (order filed Feb. 23, 1988).
In May of 1988, DES filed a first amended petition, this time alleging all three of the above grounds for termination. Judge Rapp recused himself from further participation in the matter, which was then assigned to Judge C. Kimball Rose. Hearing was again held in the father's absence. Through counsel, the father subpoenaed the child to testify concerning the allegation of wilful abuse. The child's counsel, however, urging that the stress of testifying would probably cause the child to experience prolonged emotional trauma and therapeutic regression, moved for an order quashing the subpoena and admitting into evidence a transcript of the testimony that the child had given at the court martial, including direct, cross-, and redirect examination.
Two experts--a psychiatrist and the child's therapist--testified regarding the child's emotional condition and the likely effects of requiring her to testify at the severance hearing. The therapist testified that, in her opinion, the child would perceive being required to testify as a punishment and that testifying would not only be very traumatic for her, but would probably cause her to regress to a point that would negate two and one-half years of therapy. The psychiatrist, while acknowledging the possibility that the child might actually benefit in the long run from being required to testify, agreed that testifying would cause her significant emotional pain. Based upon this testimony, the juvenile court found that the child would probably suffer significant emotional harm if required to testify. Weighing this fact against both the father's constitutional rights and the constitutional protections afforded him during the child's former testimony, the court found that the child was unavailable as a witness, granted the motion to quash, and admitted the transcript into evidence.
Because the court of military review had set aside the father's sentence, the juvenile court granted DES's motion to dismiss the allegation in the petition regarding the lengthy sentence. After considering the evidence presented, the court entered its findings of fact and conclusions of law. Among the findings of fact were the following:
9. On September 22, 1988, the Department of the Air Force, Headquarters Twelfth Air Force (TAC) affirmed the convictions specified in Finding 8 above, and affirmed the sentence of confinement for 25 years.
. . . . .
11. At a minimum, the father will have to serve 8 years, 4 months of the sentence dating from October 4, 1985, which would give the father an earliest release date in February, 1994.
12. No evidence or authority has been presented that would indicate that conviction by General Court Martial of acts which are felonies under state statutes deprives the convicted of his civil liberties.
13. The father committed acts of sodomy and cunnilingus upon his daughter and forced her to commit fellatio upon him, which acts have caused the child mental injury and have caused the child to mentally deteriorate.
The juvenile court concluded that although the father had been convicted of felonies, the nature of which proved his unfitness to have future custody and control of the child, and the sentence thereon was of such length that the child would be deprived of a normal home for a period of years, such conviction had not deprived the father of civil liberties. However, the court also concluded that the father had wilfully abused the child and, on that basis, entered an order terminating the parent-child relationship.
On appeal, the father first complains that the manner in which the allegation of wilful abuse was established denied him due process of law. Because the child's former testimony was the only evidence offered to support the allegation, he argues that due process required that he be permitted to confront and cross-examine her. Underlying this argument is his contention that the juvenile court erred in finding that the child was "unavailable as a witness." The father thus urges that the court erred in quashing the subpoena for the child's appearance at the severance hearing and in admitting the transcript of her former testimony into evidence.
The father argues that the transcript of the child's former testimony was inadmissible hearsay because the court's ruling that the child was "unavailable as a witness," within the meaning of Rule 804(a), Arizona Rules of Evidence, lacked support in law or fact. 2 After reviewing the record, we are satisfied that substantial evidence was presented to support the court's finding that the child was likely to suffer significant emotional harm if required to testify. 3 Whether that fact was sufficient as a matter of law to render the child "unavailable as a witness," within the meaning of Rule 804, however, is a question that we not need address.
The juvenile court made findings to support the admission of the transcript on three separate bases: Rule 804(b)(3), the exception for former testimony, which applies only when the hearsay declarant is "unavailable as a witness"; Rule 803(24), the "catch-all" exception to the hearsay rule that applies even though the declarant is available as a witness; and A.R.S. § 8-238, a statutory exception that applies in certain juvenile proceedings. 4 Of these findings, the father disputes only one--that the child was "unavailable as a witness" within the meaning of Rule 804. However, that finding was not a prerequisite to admissibility under either Rule 803(24) or A.R.S. §...
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