Maricopa County Juvenile Action No. JD-561, Matter of

• Citation: 638 P.2d 692,131 Ariz. 25
• Decision Date: 07 December 1981
• Docket Number: No. 15389-PR,JD-561,15389-PR
• Parties: In the Matter of the Appeal in MARICOPA COUNTY JUVENILE ACTION NO.
• Court: Supreme Court of Arizona

Page 692

638 P.2d 692

131 Ariz. 25

In the Matter of the Appeal in MARICOPA COUNTY JUVENILE ACTION NO. JD-561.

No. 15389-PR.

Supreme Court of Arizona, In Banc.

Dec. 7, 1981.

Nile B. Smith, Phoenix, for appellant natural father.

Robert K. Corbin, Atty. Gen. by Thomas A. Jacobs, Asst. Atty. Gen., Phoenix, for Arizona Dept. of Economic Security.

Jane Bayham-Lesselyong, Phoenix, for minor.

HOLOHAN, Vice Chief Justice.

Appellant's daughter was adjudicated dependent and awarded to the custody of the Department of Economic Security for placement in foster care. Appellant appealed and the court of appeals affirmed the decision of the superior court. 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 petition in the Maricopa County Juvenile Court requesting that appellant's ten and one-half year old daughter be declared a dependent child. The petition alleged specific acts performed by appellant upon his daughter which would constitute sexual molestation. The dependency petition also alleged that the daughter had been subjected to past physical abuse.

At the dependency hearing on the petition, the child's appointed counsel filed a motion requesting that the child not be required to testify at the hearing as to the details of the alleged sexual molestation. In the event the child's testimony was necessary to prove dependency, counsel requested that the child be interviewed by the judge in chambers with all parties and their attorneys excluded pursuant to Rule 19, Rules of Procedure for the Juvenile Court, 17A A.R.S. Appointed counsel also asked the trial court to allow the child's therapist to be present at the interview.

Over the objection of counsel for appellant, the motion was granted. The daughter was interviewed by the judge without anyone being present except the therapist and a court reporter who transcribed the conversation. In its judgment, the trial court specifically found the allegations of sexual contact to be true and determined the child to be a dependent child as defined by A.R.S. § 8-201(10).

The sole issue on appeal is whether appellant was denied due process of law when he was not permitted to be present and cross-examine his daughter during her appearance before the trial judge in chambers.

Rule 19, Rules of Procedure for the Juvenile Court, 17A A.R.S., provides:

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.

Although the quoted rule seems to authorize the action taken by the trial judge, the basic question remains: Was the appellant denied due process?

The determination of whether there has been a denial of due process depends upon the nature of the proceedings, the private interests at stake, the interests of the state, and the risk that the procedures used will lead to erroneous decisions. Lassiter v. Department of Social Services of Durham County, --- U.S. ----, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981); In re Appeal in Gila County Juvenile Action No. J-3824, 130 Ariz. ---, 637 P.2d 740 (1981). The task of the courts is to weigh and balance the competing interests. Hernandez v. State ex rel. Arizona Department of Economic Security, 23 Ariz.App. 32, 530 P.2d 389 (1975); see also Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 80 S.Ct. 297, 4 L.Ed.2d 268 (1960).

The right to custody and control of one's children is fundamental. Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); In re Appeal in Pima County Juvenile Action No. J-46735 v. Howard, 112 Ariz. 170, 540 P.2d 642 (1975). The parent's interest in this relationship is protected and may not be changed by the state without due process of law and strict compliance with the statutes involved. Webb v. Charles, 125 Ariz. 558, 611 P.2d 562 (App.1980); In re Appeal in Maricopa County Juvenile Action No. JS-734, 25 Ariz.App. 333, 543 P.2d 454 (1975).

The state has a vital interest in the status of the parent-child relationship and, because of the importance of this interest, the state may intrude into the parent-child relationship to protect the welfare of the child and the state's own interest in the welfare of its citizens. In re Appeal in Gila County Juvenile Action No. J-3824, supra.

Recognizing that children are persons with their own special needs, Arizona courts have acknowledged the right of a child to effective parental care. In re Appeal in Maricopa County Juvenile Action No. J-75482, 111 Ariz. 588, 536 P.2d 197 (1975). Implicit in this right of proper parental care are the rights to good physical care and emotional security. Hernandez v. State ex rel. Arizona Department of Economic Security, 23 Ariz.App. 32, 530 P.2d 389 (1975). The state has an interest in dependency proceedings in protecting children from abuse and neglect. The parents' interest is to preserve the family and maintain custody and control of their minor children.

In balancing the competing interests, counsel for appellee argues that serious emotional harm will be engendered if the minor is...