Appeal in Pima County Juvenile Action No. J-77188, Matter of

• Decision Date: 30 December 1983
• Docket Number: J-77188,CA-CIV,No. 2,2
• Parties: In the Matter of the APPEAL IN PIMA COUNTY JUVENILE ACTION NO.4870.
• Court: Arizona Court of Appeals

Page 970

678 P.2d 970

139 Ariz. 389

In the Matter of the APPEAL IN PIMA COUNTY JUVENILE ACTION NO. J-77188.

No. 2 CA-CIV 4870.

Court of Appeals of Arizona,

Division 2.

Dec. 30, 1983.

Review Denied Feb. 28, 1984.

As Amended April 10, 1984.

Robert K. Corbin, Atty. Gen. by Gary F. Forsyth, Tucson, for appellant Arizona Dept. of Economic Sec

Edith A. Croxen, Tucson, for appellants minor children.

Kathleen C. Roberts, Tucson, for natural father.

OPINION

HATHAWAY, Judge.

This appeal was taken by the Arizona Department of Economic Security (DES) and the minor children from the order of the Pima County Juvenile Court dismissing DES' dependency petition. From the record, it appears that the mother of the minor children filed a petition for dissolution from their father in January 1983. Pursuant to the stipulation of the parties, the court ordered that the mother be given temporary custody of the parties' children, two daughters, three and one years of age, and granted visitation rights to the father.

In January and again in March 1983, the mother contacted the DES Office of Child Protective Services and spoke to a caseworker regarding her concern that the three-year-old had been sexually abused by her father. After investigation, DES apparently was unable to substantiate the allegation and took no further action at that time. During March and April, the mother arranged for an evaluation of the child by two clinical psychologists, Dr. Evans and Dr. Baker, neither of whom was able to conclude that sexual abuse had occurred. Dr. Baker's report, which was prepared following five consultations from April 18 through April 22 and made a part of the record in this appeal, states that "[c]ertain findings from this evaluation give cause for concern. No one finding is in and of itself conclusive, but taken all together the findings give some support to the possibility of sexual molestation."

In mid-March, because of physical and behaviorial symptoms exhibited by the daughter, the mother again became concerned that she was being sexually molested and refused to allow the father any further visitation. On April 18, she filed a petition in the divorce action for a temporary restraining order to preclude further visitation on the basis of the suspected sexual abuse. Hearings on the petition were held before Judge Sherrill on five days between April 25 and May 17 at which a number of witnesses testified, including psychologists who had evaluated both parents. On May 3, Dr. Baker had another consultation with the child at the mother's request and subsequently prepared an addendum to her earlier report. The addendum concludes that the new information derived from the May 3 consultation, together with the previous findings, "very strongly supports the conclusion that [the child] had been sexually molested by her father." Although Dr. Baker did testify at some point during the proceedings before Judge Sherrill, it appears that the addendum was prepared after those hearings and was not introduced in evidence. The child also began therapy sessions on May 10 with a social worker, who also concluded following a session on May 19 that the child had been sexually molested by her father.

On May 17, the proceedings in the dissolution action were continued until after May 31 due to the judge's vacation. The court ordered, however, that during the interim the father be allowed visitation with the child twice a week, once at the home of the children and once at his parents' home under the supervision of one of his parents. As a consequence of this order and the findings of Dr. Baker and the child's therapist, DES filed a dependency petition in the juvenile court on May 20, seeking to have both children adjudicated dependent and giving their legal custody to DES, with physical custody to remain with the mother.

As the factual basis for the allegation of dependency, the petition recites the issuance of the temporary visitation order and the opinion of "therapists and child psychologists who have interviewed [the child] that she has been the victim of sexual abuse for an extended period of time and that both she and [her sister] are at risk of further abuse ..." The petition further alleged that the "natural mother of the minors is unable to protect the minors from contact with the father by virtue of the order of the domestic relations division requiring that visitation take place." Upon the filing of the petition, the juvenile court issued a temporary order modifying Judge Sherrill's order to require supervision of all visitation by DES. The superior court subsequently vacated the continued hearing on temporary visitation in the dissolution proceeding, apparently as a result of the assumption of jurisdiction by the juvenile court.

On June 8, a hearing was held before a juvenile court referee, during which the mother admitted the allegations of the petition. The referee found, and the juvenile court adopted his finding, that by virtue of the mother's admissions, the allegation of dependency as to the mother was substantially true. The court adopted the referee's recommendation that the children be adjudicated dependent minors and that legal custody be given to DES. In light of the father's denial of the allegations of dependency, a hearing was set on all contested matters. Subsequently, the father filed a motion to dismiss the dependency petition, and a hearing was held before the court on July 8, at which the motion was opposed not only by the DES, but also by the mother and counsel appointed to represent the children. At the conclusion of the hearing, the court dismissed the petition, and it is from this order that this appeal was taken both by DES and by counsel for the children.

Under Arizona law, a child is deemed to be "dependent" where he or she has been adjudicated to be:

"(a) In need of proper and effective parental care and control and has no parent or guardian, or one who has no parent or guardian willing to exercise or capable of exercising such care and control.

(b) Destitute or who is not provided with the necessities of life, or who is not provided with a home or...