Maricopa County, Juvenile Action No. J-74449A, In re

• Decision Date: 10 July 1973
• Docket Number: CA-JUV,J--74449A
• Citation: 511 P.2d 693,20 Ariz.App. 249
• Parties: In the Matter of the Appeal in MARCOPA COUNTY, JUVENILE ACTION NO. 15.
• Court: Arizona Court of Appeals

Page 693

511 P.2d 693

20 Ariz.App. 249

In the Matter of the Appeal in MARCOPA COUNTY, JUVENILE ACTION NO. J--74449A.

1 CA-JUV 5.

Court of Appeals of Arizona, Division 1, Department B.

July 10, 1973.

Gary K. Nelson, Atty. Gen., by W. Walton Jay and Joseph C. Richter, Asst. Attys. Gen., Phoenix, for appellee.

Quince Dale Hatch, Mesa, for appellant.

HAIRE, Judge.

On this appeal from an order entered by the Maricopa County Superior Court exercising its juvenile jurisdiction in a dependency proceeding, the appellant-mother contends that the evidence was not sufficient to support the court's finding that the appellant's four children were 'dependent children in need of care and protection of the court' and its order committing them to 'the care, custody, and control of the Maricopa County Department of Public Welfare.'

In general, the dependency petition filed in the juvenile court alleged that the children had no parent or guardian capable of or willing to exercise proper and effective parental care over them, that the father's whereabouts was unknown, and that the mother's neglect of them was due to her excessive use of alcohol. On December 6, 1972 counsel was appointed to represent the indigent appellant at the dependency hearing which was reset for December 27, 1972. At the hearing on December 27, 1972 the petitioner did not put on any evidence, but rather relied upon the file of the social service worker assigned to the matter. The appellant herself testified, and also presented one other witness concerning her fitness as a mother. A transcript of the testimony of these witnesses is not available because no court reporter was present at the hearing. The minute entries made at the time of the hearing indicate that the social service worker who was the petitioner, and prepared the social service report, was present at the hearing, but was not sworn and did not present any testimony.

In a juvenile court dependency proceeding the allegations of the petition must be proved by a preponderance of the evidence. Rule 17(a)(2), Rules of Procedure for the Juvenile Court, 17 A.R.S. We reject petitioner's contention that in a contested hearing this burden can be met by having the court examine the social service worker's file and report. Rule 16, Rules of Procedure for the Juvenile Court, 17 A.R.S. ¹ sets forth the procedure which the court must follow in dependency hearings. Subsection (c) governs uncontested hearings where the allegations of the petition are admitted and clearly contemplates that in such uncontested hearings the court may rely upon the social service worker reports mentioned in subsection (a) in making its finding as to dependency and disposition. On the other hand, subsections (d) and (e) govern contested matters, and, in our opinion negate the unfettered use of social service reports in meeting the petitioner's burden of showing dependency. While subsection (e) contemplates that the contested hearing shall be as informal as possible, it specifically precludes informality to an extent which would interfere with the requirements of due process. In our opinion due process requirements would be severely strained by the procedure suggested which would allow a finding of dependency in a contested hearing without any evidence being introduced. Not only would this be directly contrary to the burden of proof provisions of Rule 17, Supra, but it would also contravene the provisions of subsection (e) which limit the court's power to proceed with the disposition of the case to those circumstances where the court finds that the allegations of the dependency petition 'are sustained by The evidence'. (Emphasis added). Subsection (e) further provides that 'If The evidence does not sustain the allegations, the court shall dismiss the petition.' (Emphasis added).

In view of the foregoing it is our opinion that in a contested dependency hearing the petitioner must introduce evidence adequate to sustain its burden of showing dependency and therefore may not rely upon any documentary reports, files or records which have not been admitted into evidence in accordance with accepted evidentiary procedures.

At this point it would be appropriate to reverse the trial court's adjudication of dependency because of the petitioner's total failure to meet petitioner's burden of proof, were it not for one further contention urged by the petitioner. This contention is that in any event the petitioner's burden of proof was adequately sustained by the testimony of appellant and her witness. Inasmuch as no reporter was present at the dependency hearing, no transcript can be made available to aid this court in determining this question.

The superior court is a court of record. Arizona Constitution, Article 6, Section 30, A.R.S. A.R.S. § 8--234 makes the provisions of A.R.S. § 12--223 mandating the attendance of a court reporter at all superior court hearings applicable to juvenile court hearings conducted by a superior court judge. Notwithstanding the rather...