Stewart v. Superior Court In and For County of Maricopa
| Decision Date | 03 July 1989 |
| Docket Number | CA-SA,No. 1,1 |
| Citation | 787 P.2d 126,163 Ariz. 227 |
| Parties | Paul Verd STEWART and Candy Grubbs-Stewart, Petitioners, v. The SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF MARICOPA, the Honorable I. Sylvan Brown, a judge thereof, Respondent Judge, The STATE of Arizona, Real Party in Interest. 88-222. |
| Court | Arizona Court of Appeals |
The state sought pre-trial interviews with defendants' minor children, hoping to discover evidence useful to the prosecution of its case. The defendants consented on behalf of their children, but insisted that defense counsel be present and that the interviews be recorded. The state, dissatisfied with these conditions, petitioned the court to appoint a guardian ad litem for the children, and the court agreed.
We accepted the parents' petition for special action and vacated the trial court's order, stating:
1. The interview conditions set by the parents were not unreasonable.
2. Because the parents neither withheld consent to the state's efforts to gather information nor imposed unreasonable conditions restrictive of such efforts, they have not been shown in any way to have acted contrary to the interests of their children or to have subjugated their children's interests to their own.
3. The state has accordingly failed to show a conflict of interest that would justify intruding a guardian ad litem upon the parent-child relationship.
4. Under these circumstances the trial court abused its discretion in ordering the appointment of a guardian ad litem.
We added that our order was without prejudice to any further effort by the state to secure such an appointment upon a proper evidentiary showing.
We now elaborate upon our order. We hold that a trial court has inherent, equitable power to appoint a guardian ad litem for a child witness. However, because this power is invasive of parents' fundamental liberty interest in the care, custody, and management of their child, it must be exercised only upon a showing sufficient to trigger the court's parens patriae concern--that is, a showing that a child's parents, by conflict of interest or for other reasons, may be unable or unwilling to perceive or advance the child's best interest.
The petitioners, husband and wife, are defendants in a criminal child abuse case. The husband was indicted on several counts of sexually molesting his wife's daughter, M. (a minor under 15 years old). The wife is charged with intentionally or knowingly placing M. in a situation that endangered her health. The state has initiated dependency proceedings, and M. is no longer in defendants' custody.
The wife has two other minor children, N. and J.P., aged six and eight. 1 These children remain in defendants' custody. The state has not initiated any dependency proceedings on their behalf; nor has it alleged that they are, or may in the future be, the victims of abuse.
The state sought to interview N. and J.P. to discover whether they had information about the alleged abuse of their older sister. When defendants consented only upon the conditions previously described, the state sought and achieved a guardianship appointment, which was followed by the defendants filing the petition now at hand.
We take special action jurisdiction because defendants lack an equally plain, speedy, or adequate remedy by appeal. Rule 1(a), 17A A.R.S. Rules of Procedure for Special Actions. If the appointment of the guardian ad litem were allowed to stand until appeal, no court order could erase the interim invasion of defendants' parental rights.
We begin by considering the parental interest that is invaded in this case. We first point out that we do not premise our decision on the existence of a parental privilege against adverse testimony by one's child. The public has a right to every person's testimony, except where precluded by a constitutional, common-law, or statutory privilege. See Trammel v. United States, 445 U.S. 40, 50, 100 S.Ct. 906, 912, 63 L.Ed.2d 186 (1980); United States v. Bryan, 339 U.S. 323, 331, 70 S.Ct. 724, 730, 94 L.Ed. 884 (1950). Although the U.S. Supreme Court has recognized certain fundamental rights of parents, it has never held that these rights include a testimonial privilege. See, e.g., United States v. Davies, 768 F.2d 893 (7th Cir.1985), cert. denied 474 U.S. 1008, 106 S.Ct. 533, 88 L.Ed.2d 464 (1985). We need not and do not decide today whether Arizona recognizes a parent-child testimonial privilege, but note that the weight of authority is against it. 2
The protected interest that underlies today's decision is the "fundamental liberty interest [of parents] ... in the care, custody, and management of their child." Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394-95, 71 L.Ed.2d 599 (1982). "Freedom of personal choice in matters of family life is a fundamental liberty interest protected by the Fourteenth Amendment." Id. In Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), the Supreme Court held that a state may not presume the unfitness of a parent, but instead must provide individualized procedural safeguards (notice, hearing, and proof of unfitness) before the state can terminate parental rights. In Santosky, the court further held that in parental termination hearings, proof of parental unfitness must be supported by clear and convincing evidence; a mere preponderance is insufficient to satisfy due process. Santosky, 455 U.S. at 769, 102 S.Ct. at 1403.
Santosky involved termination of parental status, a drastic and conclusive state invasion of the family sphere. In contrast, the appointment of a guardian ad litem involves only a temporary, limited interference. Yet the protection of the Fourteenth Amendment applies nonetheless. Whether the state seeks to terminate or merely interrupt parental "care, custody, and management," it remains a fundamental liberty interest that the state must overcome.
A case involving issues of interference rather than termination was Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923). There the Supreme Court found that the liberty guarantee of the Fourteenth Amendment assures the right to "establish a home and bring up children," and that this right encompasses the right of parents to have their children learn a foreign language without interference from the state. Id. at 401, 43 S.Ct. at 627.
Guardianship appointment is a form of interference with the parents' protected sphere. Parental power to make a category of decisions in the child's best interest is suspended by court order; and the court substitutes the decisions of a stranger for decisions that the parents might otherwise make. Such an invasion, albeit temporary and limited, must, like any other, be shown to be justified by an overriding interest of the state. See, e.g., In re Cochise County Juvenile Action No. 5666-J, 133 Ariz. 157, 650 P.2d 459 (1982) ().
We shift from defining the parents' protected interest to defining the court's appointive power.
Defendants focus on the fact that this appointment was made by a criminal division of the Superior Court for Maricopa County and argue that only juvenile divisions may properly exercise such power. Defendants launch this argument by asserting that guardianship is a form of modification of the parent-child relationship. They then contend that the authority to modify the parent-child relationship is vested exclusively in the juvenile court by virtue of A.R.S. § 8-532. That statute provides in relevant part:
A. The juvenile court shall have exclusive original jurisdiction over petitions to terminate the parent-child relationship when the child involved is present in the state.
By the plain language of the statute, the juvenile court has exclusive jurisdiction over termination proceedings. As stated above, the state has not initiated termination proceedings on behalf of N. or J.P.; thus, the juvenile court's exclusive jurisdiction over terminations is irrelevant.
Defendants next point out that A.R.S. § 8-535(D) authorizes the juvenile court "in any [termination] case, [to] appoint a guardian ad litem as may be deemed necessary for any party." However, contrary to defendants' contention, this is not an exclusive grant of guardianship appointment power. Other divisions of the superior court are granted express authority to appoint guardians ad litem under a number of circumstances. See, e.g., A.R.S. § 14-1403(4) (probate) and Rule 17(g), 16 A.R.S. Rules of Civil Procedure (civil).
We acknowledge that no rule or statute expressly grants a criminal division the authority to appoint a guardian ad litem for children who might be called as witnesses. This, however, does not require the conclusion that a criminal court lacks authority to make such an appointment in an appropriate case. We find that the rules and statutes that presently express the court's authority to appoint guardians ad litem are not exclusive sources of that power. Rather they are non-exclusive codifications of an equitable power and responsibility dating back to chancery days.
The parens patriae doctrine has long recognized the court's power to protect the interests of children before it. See Schall v. Martin, 467 U.S. 253, 265, 104 S.Ct. 2403, 2410, 81 L.Ed.2d 207 (1984); see also, Application of Gault, 99 Ariz. 181, 188, 407 P.2d 760, 766 (1965) rev'd on other grounds, 387 U.S. 1, 87...
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