Appeal in Pima County Juvenile Dependency Action No. 96290, Matter of, 2
| Citation | 162 Ariz. 601,785 P.2d 121 |
| Decision Date | 23 January 1990 |
| Docket Number | No. 2,CA-JV,2 |
| Parties | In the Matter of the APPEAL IN PIMA COUNTY JUVENILE DEPENDENCY ACTION NO. 96290. 89-0013. |
| Court | Arizona Court of Appeals |
This appeal is taken from the order of the juvenile court adjudicating appellant's four minor children dependent. The proceedings were initiated in July of 1987, when appellant's two-month-old son "J" was taken to the hospital with first- and second-degree burns on his abdomen, leg, shoulder, elbow, foot and back. Medical evaluation also revealed that his left testicle was bruised and hemorrhaging, that he was suffering from a urinary tract infection and that he had failed to grow at a normal rate since birth. The mother gave inconsistent explanations to medical personnel and investigating officers of how the burns occurred in the middle of the preceding night. She first stated that the father was holding the baby on the couch in the living room when their three-year-old daughter "K" poured hot water on him, but later stated that K had placed the baby in the bathroom sink and turned on the hot water.
J and K were taken into temporary custody and a dependency petition was filed as to both children based on the foregoing facts. A second son, "M," nine months old, was also taken into temporary custody following the parents' arrest on child abuse charges. An amended dependency petition as to M alleged that the child's home was "both hazardous and unhealthy" and that the child was suffering from chronic bronchitis and an ear infection for which he had received no treatment. The petition further alleged that the child had not been immunized and that he required medical treatment for a limp.
A third son, "D," was born to the parents on March 17, 1988, and he too was taken into temporary custody shortly after birth. The petition filed as to him alleged, among other things, 1 that D was "in danger of suffering abuse due to his tender age and to the parents' history of the abuse and medical neglect of their other children."
All of the children remained in the custody of the Department of Economic Security (DES) during the pendency of these proceedings. Commencing in October of 1987 K began therapy with Linda Conaway-Morgan, a psychiatric social worker. The initial assessment of the child by psychologists was that she was developmentally delayed and exhibited fear with respect to her parents. The therapy sessions included both conversations with the child and use of toys and art materials to encourage the child to express herself and to assist the therapist in identifying areas of conflict.
Conaway-Morgan testified that the sessions indicated that K was fearful of her father and was subject to harsh discipline from him. The child gave inconsistent reports as to who had caused the injuries to J, sometimes reporting that she had done it and other times stating that her father was responsible. It also became apparent that she had observed sexual relations between the parents and was unusually knowledgeable about sexual matters for a child of her age.
In April of 1988, the therapist received a report from Child Protective Services (CPS) that K may have been molested in the foster home. At a therapy session, she asked K "if anyone had touched her inappropriately in ways that felt uncomfortable." K replied that "Daddy" did, and proceeded to give more specific information. Dr. Conaway-Morgan testified:
What she did is indicate that he kissed her pee-pee, her butt and put his pee-pee in her pee-pee and she said that it felt good, and asked if he said anything to her and she said yes. I said, what did he say? She said a nice word, sorry.
And I asked her if anyone else knew about that and she said [her mother]. And I said, what did she say and she said, don't do that. I again asked, what did Daddy ... say and she said sorry and I asked her if it had occurred more than one time and she said more than one time.
And I asked her if it was daytime or nighttime and she said nighttime. Where? My room. And she indicated that Daddy ... had his clothes off. Shows herself on her stomach with the father on top of her.
* * * * * *
And I asked her, could you--and did [the mother] ask you not to tell anybody about that and she nodded yes. And I asked her if Daddy ... had told her not to tell anybody and she indicated yes. And I asked if she was told if she would get into trouble if she would and she indicated no.
The therapist further testified that K repeated this information consistently in subsequent sessions and also indicated the events through anatomically-correct pictures. The dependency petition as to K was amended in April to include an allegation of sexual abuse by the father. 2
In addition to testimony concerning the foregoing facts, the juvenile court heard testimony from Dr. Alan Jones, the Pima County Medical Examiner, that the burns to J were nonaccidental and that they were not caused by K. Testimony was also presented concerning the inconsistent accounts of the events provided by the parents. Further, the investigating officers testified as to the dirty and unhealthy condition of M when he was taken into custody and the unhealthy condition of the home. The DES intake worker, Pat Jansen, testified that she observed cat feces, kitty litter, and food on the floors. There were used disposable diapers in the living room and master bedroom. Sharp objects and tools were within reach of the children. The house was generally dirty and smelled of cat urine and cigarettes. The record also reflects that the refrigerator was moldy and contained rancid food.
The parents also testified at the hearing. Appellant repeated her version of the events the night J was burned and denied any knowledge of sexual abuse of K. She also testified that she and her husband had attended parenting classes and participated in psychological evaluations required by CPS, and were willing to attend any other counselling required by CPS. The father also testified consistently with his prior statements concerning the burns to J, and denied any sexual contact with K. Both admitted that the father was an alcoholic and had been convicted of driving while intoxicated during the pendency of these proceedings; however, the father testified that he was now sober and participating in an Alcoholics Anonymous program.
The juvenile court found the children to be dependent as alleged in the petitions, ruling in part as follows:
These children are dependent by every definition in the statute. Their home was filthy and inappropriate. Their parents neglected them, medically, emotionally, and physically. [J] suffered an extreme injury as a result of the father's intentional or reckless abuse. [K] was blamed for the injury to [J] in a story by the parents that is neither plausible nor medically reasonable. She was sexually abused by her father, possibly with her mother's knowledge. [M] was dirty, ill and uncared for when taken into custody. The abuse and neglect of the older children placed the infant [D] in extreme risk of harm.
The Court believes these are young parents who have been overwhelmed by their rapidly expanding family and steadily diminishing resources. The mother has had a tremendously difficult load to bear as essentially the sole parent for the family because of the father's alcoholism. It appears that efforts are being made by the parents to remedy the life situations which lead to the dependencies of their children. The Court encourages their continued diligence in their efforts to reunite their family. They must recognize, however, the seriousness of these findings and the...
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