Dep't of Child Safety v. Beene, No. 1 CA-SA 14-0058

CourtCourt of Appeals of Arizona
Writing for the CourtTHUMMA
PartiesDEPARTMENT OF CHILD SAFETY, Petitioner, v. THE HONORABLE JAMES P. BEENE, Judge of the SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the County of MARICOPA, Respondent Judge, ANGEL B.; OSANNA B.; A.B.; R.B., Real Parties in Interest.
Docket NumberNo. 1 CA-SA 14-0058
Decision Date24 July 2014

DEPARTMENT OF CHILD SAFETY, Petitioner,
v.
THE HONORABLE JAMES P. BEENE, Judge of the SUPERIOR COURT
OF THE STATE OF ARIZONA, in and for the County of MARICOPA, Respondent Judge,
ANGEL B.; OSANNA B.; A.B.; R.B., Real Parties in Interest.
1

No. 1 CA-SA 14-0058

ARIZONA COURT OF APPEALS DIVISION ONE

FILED: July 24, 2014


Petition for Special Action from the Superior Court in Maricopa County
No. JD509273
The Honorable James P. Beene, Judge

JURISDICTION ACCEPTED; RELIEF GRANTED

COUNSEL

Arizona Attorney General's Office, Phoenix
By Dawn R. Williams, Toni Valadez
Counsel for Petitioner

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Jeffrey M. Zurbriggen, P.C., Phoenix
By Jeffrey M. Zurbriggen
Counsel for Real Party in Interest Angel B.

Timothy V. Nelson, Gilbert
Counsel for Real Party in Interest Osanna B.

OPINION

Presiding Judge Samuel A. Thumma delivered the opinion of the Court, in which Judge John C. Gemmill and Judge Randall M. Howe joined.

THUMMA, Judge:

¶1 The issue in this special action is whether parents, at a trial (called an adjudication) on a motion to terminate their parental rights, have a due process right to call their children as witnesses to confront and cross-examine them about the children's hearsay statements admitted in evidence. Petitioner Department of Child Safety (DCS) challenges the denial of its motion for a protective order seeking to preclude such testimony, arguing the superior court should have considered the children's best interests in deciding whether parents had a right to call them as witnesses. Although parents have a due process right to challenge their children's statements received in evidence at a severance trial, whether that right includes calling the children as witnesses to confront and cross-examine them requires a consideration of the best interests of the children. Accordingly, this court accepts special action jurisdiction, grants relief, vacates the order denying DCS' motion for protective order and remands for further proceedings not inconsistent with this decision.

BACKGROUND

¶2 Angel B. and Osanna B. (Parents) are parents of A.B., born in 2003, and R.B., born in 2007. The children were found dependent after R.B. was taken to a hospital in April 2011, unconscious, with a subdural hematoma, liver laceration, healing rib fracture, bruising and scratches. See A.R.S. § 8-201(14) (2014).2 Parents were indicted on various felony

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child abuse charges, with offense dates on or between November 2009 and April 2011.3

¶3 After Parents appealed, the dependency findings were affirmed. That appeal also rejected Father's claim that he was denied due process when the superior court precluded him from calling A.B. as a witness in the dependency trial.4 At a subsequent permanency planning hearing, the superior court changed the case plan to severance and adoption. See A.R.S. § 8-862(B). DCS then filed a motion to terminate parental rights alleging, as amended, child abuse and fifteen-months time-in-care as grounds for termination. See A.R.S. § 8-533(B)(2) & (8)(c).

¶4 In anticipation of the severance trial, DCS moved for a protective order precluding Parents from calling the children as witnesses. Claiming good cause under Arizona Rule of Civil Procedure 26(c), and citing Yavapai County Juvenile Action No. J-9365, 157 Ariz. 497, 759 P.2d 643 (App. 1988), DCS noted that therapists and a psychologist for the children "have all strongly opined that it would not be in the children's best interest to testify." Father, in a response Mother joined, opposed DCS' motion, arguing Parents "have an unequivocal due process right to have their kids testify subject to cross examination" that is "NOT conditioned upon any best interests analysis." Father also sought an order that the children be "present at Court to testify at trial with all lawyers and parties present," adding that if the superior court "precludes the children from testifying," the court should "preclude evidence of any and all statements by the kids about any alleged abuse or neglect." In reply, DCS noted it "does not intend to call either of the children as a witness" but does

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"intend to present the children's statements regarding the abuse and neglect they suffered through other witnesses." DCS further argued that "a parent's due process right to confront their children at trial—assuming that they had such a right—would be conditioned upon a best-interests analysis."

¶5 After hearing oral argument, the superior court implicitly found DCS had shown good cause under Arizona Rule of Civil Procedure 26(c) but denied the motion for protective order. Discussing factors set forth in Mathews v. Eldridge, 424 U.S. 319 (1976) and Maricopa County Juvenile Action No. JD-561, 131 Ariz. 25, 638 P.2d 692 (1981), but without addressing the best interests of the children, the ruling noted that maintaining Parents' "due process rights in a termination proceeding is superior to the interests of the state." Accordingly, the ruling concludes that precluding Parents from calling the children as witnesses would violate Parents' due process rights. To protect the children's emotional interests, however, the court ordered that Parents "shall not be present during the examination of the children at the termination hearing," adding that the court "may impose other reasonable limitations in regards to the examination of the children in order to protect their emotional interests." DCS unsuccessfully sought reconsideration, arguing the ruling "failed to consider the children's best interests." DCS then filed this special action petition and this court has considered additional briefing and oral argument not provided to the superior court.

DISCUSSION

I. Special Action Jurisdiction.

¶6 Special action jurisdiction is appropriate where petitioner has no "equally plain, speedy, and adequate remedy by appeal." Ariz. R.P. Spec. Act. 1(a); Arpaio v. Figueroa, 229 Ariz. 444, 446 ¶ 5, 276 P.3d 513, 515 (App. 2012) (citation omitted). Special action jurisdiction is appropriate to address an issue of first impression that is "'a purely legal question, is of statewide importance, and is likely to arise again.'" Lear v. Fields, 226 Ariz. 226, 229 ¶ 6, 245 P.3d 911, 914 (App. 2011) (quoting Vo v. Superior Court, 172 Ariz. 195, 198, 836 P.2d 408, 411 (App. 1992)). Although "highly discretionary," Randolph v. Groscost, 195 Ariz. 423, 425 ¶ 6, 989 P.2d 751, 753 (1999), accepting special action jurisdiction is particularly appropriate where the welfare of children is involved and the harm complained of can only be prevented by resolution before an appeal. See Stuard v. Bean, 27 Ariz. App. 350, 351, 554 P.2d 1293, 1294 (1976).

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¶7 As applied, the petition seeks review of an order that is not a final appealable order at this time, implicates the best interests of the children and involves a legal issue of statewide importance that is unresolved in Arizona and is likely to arise again. Moreover, there is no equally plain, speedy and adequate remedy by appeal. Accordingly, in exercising its discretion, this court accepts special action jurisdiction.5

II. The Merits

A. Standard Of Review.

¶8 The parties agree that Arizona Rule of Civil Procedure 26(c) applies to the motion for protective order and that DCS had the burden to show "good cause" for the protective order to issue. Parents, however, had the burden to show that their due process rights under the Fourteenth Amendment to the United States Constitution would be denied if they could not call their children as witnesses to confront and cross-examine them about the children's hearsay statements admitted in evidence. See Pavlik v. Chinle Unified Sch. Dist. No. 24, 195 Ariz. 148, 151 ¶ 9, 985 P.2d 633, 636 (App. 1999). The decision to grant a protective order is reviewed for an abuse of discretion. See J-9365, 157 Ariz. at 501, 759 P.2d at 647. Legal issues, including the correct legal standard to apply, are reviewed de novo. See Mario G. v. Ariz. Dep't of Econ. Sec., 227 Ariz. 282, 285, 257 P.3d 1162, 1165 (App. 2011).

B. Protecting The Best Interests Of The Child Permeates Dependency And Severance Proceedings.

¶9 In dependency and severance proceedings, "the child's best interests are paramount." Don L. v. Ariz. Dep't of Econ. Sec., 193 Ariz. 556, 559 ¶ 7, 975 P.2d 146, 149 (App. 1998) (citation omitted). As promulgated by the Arizona Supreme Court, the rules governing these proceedings "should be interpreted in a manner designed to protect the best interests of the child, giving paramount consideration to the health and safety of the child." Ariz. R.P. Juv. Ct. 36. More broadly, consideration of the child's

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best interests permeates dependency and severance proceedings. See, e.g., A.R.S. § 8-821(A) (temporary custody authorized "to protect the child"); A.R.S. § 8-845(B) ("In reviewing the status of the child and in determining" proper case plan, "the court shall consider the health and safety of the child as a paramount concern."); A.R.S. § 8-517 (allowing change in foster placement if "necessary for the child's [best] interests and welfare"); A.R.S. § 8-533(B) (requiring consideration of "the best interests of the child" in addressing severance); Alexander...

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