Pima County Juvenile Action No. J-78632, Matter of

• Decision Date: 27 February 1985
• Docket Number: J-78632,CA-CIV,No. 2,2
• Citation: 711 P.2d 1200,147 Ariz. 527
• Parties: In the Matter of the Appeal in PIMA COUNTY JUVENILE ACTION NO.5181.
• Court: Arizona Court of Appeals

Page 1200

711 P.2d 1200

147 Ariz. 527

In the Matter of the Appeal in PIMA COUNTY JUVENILE ACTION NO. J-78632.

No. 2 CA-CIV 5181.

Court of Appeals of Arizona,

Division 2.

Feb. 27, 1985.

Ann M. Haralambie, Tucson, for appellants

John William Lovell, Tucson, for appellee Bennett.

Childrights, Inc. by Edith A. Croxen, Tucson, for appellees minor children.

Robert K. Corbin, Atty. Gen. by Joan R. Mendelson, Tucson, for appellee Arizona Dept. of Economic Sec.

OPINION

BIRDSALL, Chief Judge.

This appeal was taken from the order of the juvenile court adjudicating the minors to be dependent, awarding their legal custody to the Department of Economic Security (DES), and continuing their physical placement with their maternal grandfather, appellee Bennett. The following facts are pertinent to our disposition.

The juveniles, nine- and seven-year-old sisters, and their parents were residents of Arkansas and apparently lived on and off with the appellants, Vera and Robert McGough. On September 12, 1982, the parents and the children were involved in an automobile accident. The father was killed and the mother suffered injuries which resulted in her death several months later. The children also suffered serious injuries which required them to be placed in body casts for several months. They were hospitalized for two months and upon leaving the hospital returned to the home of the McGoughs, who cared for them during and after their convalescence. After the mother's death, the McGoughs petitioned the Arkansas courts for appointment as guardians of the children. The petition was opposed by Mr. Bennett. The McGoughs prevailed, however, and were appointed guardians sometime in June, 1983. ¹ The court's decree required them to send the children to Bennett for a two-week visitation in July 1983, which they did.

According to Mr. Bennett and his wife, the children's stepgrandmother, the children were discovered upon their arrival to be dirty and to have bruises on their legs and buttocks consistent with beatings inflicted by a belt. Because of this, and because of statements made to them by the children, the Bennetts concluded that the children had been mistreated by the McGoughs. Instead of returning the children to Arkansas at the end of the scheduled visitation, they filed a petition in juvenile court to adopt the children. ² The record does not reflect the status of that proceeding, which is not a matter before this court. Thereafter, on September 28, 1983, Mr. Bennett filed a dependency petition in juvenile court alleging, inter alia, that the children had been sexually abused by a friend of the McGoughs and subjected to severe disciplinary methods by the McGoughs. The petition was accompanied by the reports of a psychologist and therapist who had evaluated the children. The report concluded that "[t]here is too much evidence, sexual abuse, neglect and physical abuse to return them to this very unstable environment," and recommended that the children remain with the grandparents "until a considered judgment can be rendered in this complicated case."

On October 17, 1983, DES filed a "Joinder in Dependency Petition," reiterating basically the same allegations as the Bennett petition, based on the investigatory report of a DES caseworker. On October 21, the juvenile court entered temporary orders making the children temporary wards of the court, awarding temporary legal custody to DES, and giving temporary physical custody to Mr. Bennett.

Immediately thereafter, the McGoughs filed a motion to dismiss the petitions, arguing that the court lacked jurisdiction under the Uniform Child Custody Jurisdiction Act, A.R.S. §§ 8-401 to 8-424 (1984 Supp.), and the Parental Kidnapping Prevention Act, 28 U.S.C. § 1738A (1984 Supp.). The McGoughs argued, alternatively, that even if the court were authorized under the Uniform Act to exercise emergency jurisdiction, it could do so only for a limited period of time--specifically, until the petitioners filed a dependency petition in Arkansas, the children's home state. The motion was accompanied by the affidavit of Norma Snow, County Director of the Arkansas Department of Human Services, Division of Social Services, who stated that she had worked with the children, their parents, and the McGoughs for more than three years. She further stated:

"Without question, Arkansas Social Services will re-enter this cause and conduct a full investigation [of the alleged sexual abuse] once the allegations have been forwarded to Arkansas Social Services or to the Probate Court of Cleburne County, Arkansas, the Court with continuing jurisdiction over the guardianship of these minor children. Through the protective services of the Arkansas Division of Social Services, these children, upon their return will be assured all of the protection available by the State of Arkansas, and will not be placed in the position of any potential harm or furtherance of abuse until such time as a complete investigation has been conducted. I would urge the Juvenile Court or Juvenile Investigative Agency for the Juvenile Court of Pima County, Arizona, to contact my agency and me personally to confirm our position in this matter and to be able thus to assure themselves that the children will be adequately protected upon their return to the State of Arkansas." The motion was opposed by the petitioners and denied by the juvenile court. At the same time, the court granted the DES motion to amend its prior pleading so as to constitute a separate petition for dependency, alleging sexual, physical, and emotional abuse of the children, not joined in any way with Bennett's petition.

A contested hearing was held in February, 1984, when testimony was taken from the children, the McGoughs, the Bennetts, three evaluating psychologists, and other witnesses. On April 16, the court entered its findings of fact and conclusions of law. The court found that while the children were recovering from the death of their parents and their own physical injuries, they "were subjected to regular and frequent physical discipline by the McGoughs including being struck by hand, belt, switch, flyswatter and ruler" and "on a regular and frequent basis as part of the discipline imposed by Mr. and Mrs. McGough, ... made to stand in a corner, made to stand with their nose [sic] to a door knob, and sent to their room as punishment." The court further found that the children had been sexually abused by a friend of the McGoughs, who was "a welcome visitor and guest at the McGough house," and that the children had been left in his exclusive custody on several occasions for periods up to one hour. Finally, the court found that the McGoughs "had occasion to see Melanie kiss [the friend] briefly on the lips and sit on his lap and did not discourage such behavior."

On the basis of these findings, the court concluded that the discipline imposed by the McGoughs constituted "cruelty" within the meaning of A.R.S. § 8-201(11)(b). Alternatively, the court concluded that the children were in need of proper and effective parental care and control and had no parent or guardian willing or capable of exercising such care and control. The court adjudicated the children dependent, awarded their legal care and custody to DES, and ordered their concurrent physical placement with the Bennetts to continue. The matter was set for review on October 10, 1984. ³ The McGoughs appealed, arguing that (1) Arizona either did not have jurisdiction or should not have exercised jurisdiction, pursuant to the Uniform Child Custody Jurisdiction Act and the Parental Kidnapping Prevention Act; (2) the court erred in refusing to admit evidence concerning the natural parents' disciplining of the children; (3) the court erred in refusing to admit evidence concerning disciplinary techniques in common usage in Arkansas; and (4) the evidence was insufficient to support a finding of dependency.

Although not raised by the parties, we first address the nature of the juvenile court's disposition order, which awarded legal custody to DES and physical custody to the maternal grandfather. Pursuant to Article 6, § 15 of the Arizona Constitution, the power of the juvenile court to make a particular disposition of a child subject to its jurisdiction is "as provided by law." This has been construed to limit the powers of the juvenile court to those expressly granted by the legislature, specifically, as set forth in A.R.S. § 8-241. See Appeal in Maricopa County Juvenile Action No. J-86843, 125 Ariz. 227, 608 P.2d 804 (App.1980); State v. Collins, 122 Ariz. 550, 596 P.2d 385 (App.1979). With regard to children who have been adjudicated dependent, the statute authorizes the juvenile court to award legal custody:

"(a) To the care of his parents, subject to the supervision of the state department of economic security.

(b) To a suitable institution.

(c) To an association willing to receive him.

(d) To a reputable citizen of good character.

(e) To an appropriate public or private agency licensed to care for children.

(f) To a suitable school.

(g) To maternal or paternal relatives, as guardian of the person, provided they are physically and financially able to provide proper care.

(h) To the protective supervision of a probation department subject to such conditions as the court may impose.

(i) To supervision under the independent living program established pursuant to § 8-521." A.R.S. § 8-241(A)(1) ⁴

We see nothing in this statute which would authorize the disposition order issued in this case awarding legal custody to DES. If the parents of the children were involved, then arguably the order could be construed as coming within the language of subsection (a). Even this subsection, however, does not authorize the granting of legal custody to DES, but merely subjects the exercise of custody by the parents to the supervision of DES. Indeed, none of the quoted subsections authorize the award of legal custody of...