Maricopa County Juvenile Action No. JD-561, Matter of, JD-561
| Decision Date | 10 March 1981 |
| Docket Number | JD-561,No. 1,CA-JUV,1 |
| Citation | 131 Ariz. 50,638 P.2d 717 |
| Parties | In the Matter of the Appeal in MARICOPA COUNTY JUVENILE ACTION NO.146. |
| Court | Arizona Court of Appeals |
The sole issue presented on this appeal is whether a father was denied due process of law in violation of the Fourteenth Amendment to the United States Constitution by being refused the right to be present and to confront and cross-examine his ten and one-half year old daughter who was interviewed by the judge in chambers during a dependency hearing involving the child.
On December 18, 1979, a dependency petition was filed in the Maricopa County Juvenile Court alleging that appellant's daughter was a dependent child, and requesting the court to make such orders regarding her custody, care and support as the child's welfare and the interests of the State may require. The petition alleged that appellant had kissed his daughter on the mouth using his tongue, fondled her breasts as they developed, and fondled her genital area; that the child had complained that her father "treats me like a wife"; that her mother is institutionalized at Arizona State Hospital; and that she is in fear of her father, who has a record of physical threats to protective service workers.
Appellant's position was that everyone involved had blown a normal parent-child relationship out of proportion, and that the reported sexual contacts were exaggerations.
A.R.S. § 8-201(10), insofar as it applies to this case, defines "dependent child" as follows:
"Dependent child" means a child who is 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.
The minor's appointed counsel filed a motion with the juvenile judge requesting that the child not be required to testify at the dependency proceeding as to the details of the sexual molestation, but that in the event such testimony was necessary to prove dependency and protect the child from being returned to her father, that she be interviewed in chambers by the judge, with her therapist present, pursuant to rule 19, Arizona Juvenile Court Rules of Procedure, and that all parties and their attorneys be excluded.
Grounds for the motion were set forth in detail and may be summarized as follows: that the child had been under tremendous stress throughout the past few months; she was reluctant to discuss the details of the sexual abuse even with her female therapist (with whom she had currently developed a relationship of trust and confidence and in whose presence the child would likely be more willing to talk); and that it would cause her unnecessary emotional distress to testify in a courtroom or in chambers before her father or the attorneys in the case. The mother was apparently not present or represented at the hearing.
The motion was granted, over the objection of counsel for appellant, and thereafter the judge interviewed the child in chambers in the presence of the social worker and the official court reporter who reported the conversation verbatim. At the conclusion of the dependency hearing, the court made specific findings that the allegations of the petition concerning the father's behavior towards the child were true, found her to be dependent, and made her a ward of the court with provisions for foster home care.
Appellee contends that the in camera procedure employed by the judge is sanctioned by rule 19, Arizona Juvenile Court Rules of Procedure, which reads as follows:
In any hearing pursuant to these rules, the general public may be excluded and only such persons admitted as have a direct interest in the case. The court may further excuse any party other than the child from any hearing, except that the child may be excluded in matters not involving the commission of an act which would be the violation of the criminal law if committed by an adult and the court may exclude the child at the request of the child's attorney. (emphasis added)
It is doubtful that this rule specifically authorizes a court to exclude a party without his consent. The word "excuse" is not synonymous with "exclude". The former implies permission to leave, the latter refusal to admit. The rule, however, does not categorically prohibit the court from excluding a party, nor are there any words employed which would solve the complex due process issue raised on this appeal. It also is not clear that the rule applies to private in camera interviews as distinguished from formal hearings. There are no Arizona decisions holding that the procedure involved in this case ipso facto violates due process. Similar interviews have been held proper where no formal objection was voiced. Bailey v. Bailey, 3 Ariz.App. 138, 412 P.2d 480 (1966). Because of the uncertainty of the reach of the rule and the absence of governing Arizona case law, we hold that rule 19 does not prevent a judge from excluding a party from a private in camera interview with the child in a dependency hearing.
Appellant does not pursue his appeal on the basis that the evidence is insufficient to sustain the trial court's decision. Indeed, he has not filed with this court any transcript of the testimony presented at the dependency hearing or of the judge's conversation with the minor child in chambers. In In re Maricopa County Juvenile Action No. J-74449 A, 20 Ariz.App. 249, 511 P.2d 693 (1973), this court held that a party who questions the sufficiency of evidence to support a finding of dependency has the burden of including the transcript of testimony in the record so as to provide a basis for review and in the absence of such transcript, this court will presume the evidence sustains the court's findings and will affirm. We likewise presume that the evidence in this case is sufficient to sustain the finding of dependency, and move on to the issue of denial of due process of law which is the sole issue on which appellant relies for reversal.
The right to raise one's children is fundamental, and a proceeding by the state to deprive a person of that right permanently or temporarily must conform in its procedural aspects with the notion of due process embodied in the Fourteenth Amendment. In the Matter of Appeal in Pima County Juvenile Action J-46735 v. Howard, 112 Ariz. 170, 540 P.2d 642 (1975); rule 16, Arizona Juvenile Court Rules of Procedure; U.S.Const. amend. XIV. See also Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972).
It is important therefore to first understand the legal concept inherent in the term "due process of law" and in particular as applied to dependency proceedings, and then proceed to determine whether the court's action unfairly deprived appellant of this fundamental right.
In Crouch v. Justice of Peace Court of Sixth Precinct, 7 Ariz.App. 460, 465-466, 440 P.2d 1000, 1005-1006 (1968), the essence of the term "due process" was described as follows:
There is probably no more nebulous and indefinable concept in the law than "due process of law". Generally speaking, the denial of due process is a denial of "fundamental fairness, shocking to the universal sense of justice". Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 80 S.Ct. 297, 4 L.Ed.2d 268 (1960).
See also State v. Maldonado, 92 Ariz. 70, 373 P.2d 583 (1962).
Procedural due process does not require the application of a particular standard or categorical set of rules or criteria or a particular order of proof or mode of offering evidence. It is flexible. Requirements may differ in different types of cases. Goldberg v. Kelly, 397 U.S. 254, 263, 90 S.Ct. 1011, 1018, 25 L.Ed.2d 287 (1970); Boddie v. Connecticut, 401 U.S. 371, 378, 91 S.Ct. 780, 786, 28 L.Ed.2d 113 (1971); Stanley v. Illinois, supra; Ray v. Rambaud, 103 Ariz. 186, 438 P.2d 752 (1968); Hart v. Bayless Investment & Trading Co., 86 Ariz. 379, 346 P.2d 1101 (1959).
Justice Frankfurter in his concurring opinion in Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123 at 162-163, 71 S.Ct. 624, at 643-644, 95 L.Ed. 817 (1951), said:
"(D)ue process", unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances.... Due process is not a mechanical instrument. It is not a yardstick. It is a process. It is a delicate process of adjustment inescapably involving the exercise of judgment by those whom the Constitution entrusted with the unfolding of the process.
...The precise nature of the interest that has been adversely affected, the manner in which this was done, the reasons for doing it, the available alternatives to the procedure that was followed, the protection implicit in the office of the functionary whose conduct is challenged, the balance of hurt complained of and good accomplished-these are some of the considerations that must enter into the judicial judgment.
The various interests must be considered, weighed and adjusted before determining the safeguards essential to due process. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 570, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1972). In child custody and dependency proceedings, the court's first concern, and indeed the common concern of all parties, should be the current and future welfare of the child. In re Pima County Juvenile Action No. J-31853, 18 Ariz.App. 219, 501 P.2d 395 (1972); Clifford v. Woodford, 83 Ariz. 257, 260, 320 P.2d 452, 455 (1957).
Having determined that the parent-child relationship is fundamental and thus protected by due process, it is necessary to take the second analytical step of...
To continue reading
Request your trial
-
Maricopa County Juvenile Action No. JD-561, Matter of
...We granted appellant's petition for review. The opinion of the court of appeals is vacated. In re Appeal in Maricopa County Juvenile Action No. JD-561, 130 Ariz. ---, 638 P.2d 717 (1981). The essential facts are that on December 18, 1979, the Arizona Department of Economic Security filed a ......