Timothy C., In re

• Decision Date: 13 August 1998
• Docket Number: CA-JV,No. 1,1
• Citation: 194 Ariz. 159,978 P.2d 644
• Parties: 275 Ariz. Adv. Rep. 43 In re TIMOTHY C. 97-0232.
• Court: Arizona Court of Appeals

Page 644

978 P.2d 644

275 Ariz. Adv. Rep. 43

In re TIMOTHY C.

No. 1 CA-JV 97-0232.

Court of Appeals of Arizona,

Division 1, Department D.

Aug. 13, 1998.

Review Denied May 26, 1999.

Lewis and Roca LLP by Edward F. Novak and Douglas J. McDonald, Phoenix, Attorneys for Appellant

Richard M. Romley, Maricopa County Attorney by Linda Alauria, Phoenix, Deputy County Attorney Attorneys for Appellee

OPINION

NOYES, Judge.

¶1 Appellant ("Juvenile") was adjudicated delinquent on a charge of child molestation. The State's case was based on a confession Juvenile gave to a Child Protective Services ("CPS") caseworker after the caseworker promised Juvenile's mother that the case would be closed if he could talk to Juvenile and his siblings. Juvenile argues that his confession was involuntary and should have been suppressed. We agree.

I.

¶2 One day in May 1996, twelve-year-old Juvenile was babysitting his four-year-old sister ("Sister") while their parents and other siblings were at a softball game coached by their father ("Father"). When Juvenile's mother ("Mother") returned home, she saw Sister lying on the couch with her knees up and her panties around her knees. Juvenile was on his knees and was looking at Sister's "bottom area." Mother asked what was going on, and Juvenile said that Sister had something bothering her "down there" and that he was "looking to see if there was something there."

¶3 When Father came home, Mother told him what she had seen. Father then talked to Juvenile alone, and Juvenile eventually said that he had kissed Sister "down by her private area." That night, Father and Mother went to their bishop for counseling. The next day, Father and Mother took Juvenile to see a psychologist, so he could determine if Juvenile "had some things going on that [they] didn't know about" and to "make sure that [they] handled the situation properly." After his evaluation, the psychologist concluded that Juvenile did not suffer from any sexual disorder, but he reported the matter to CPS, as required by Arizona Revised Statutes Annotated ("A.R.S.") section 13-3620 (Supp.1997).

¶4 On July 26, 1996, CPS caseworker Stephen Richard Miller ("Miller") went to Juvenile's home to investigate the alleged "sexual contact between two children due to inadequate adult parental supervision." After a cordial visit with Mother, Miller determined that appropriate counseling services for Juvenile were in place, that the parents were responding to the matter appropriately, and that Sister did not need to be removed from the home. Miller gave Mother a pamphlet, which stated that CPS had the right to interview "a child who is the subject of an investigation and the child's brothers, sisters and other children living in the home" without the parents' permission. Miller gave Mother a CPS form, which stated, "I have been informed of my rights and received a copy of the DES pamphlet, 'Child Protective Services--Information for Parents, Caretakers and Children.' " Mother signed the form. Miller told Mother that the case would be closed after he contacted Juvenile's therapist, discussed the case with his (Miller's) supervisor, and interviewed the children.

¶5 On August 8, 1996, Miller returned to the family home and again told Mother that he could close the case after interviewing the children. He also said that he had a legal right to interview the children without Mother being present. He showed Mother the back of his badge, which he said contained a statement of the law on this matter. In reliance on these promises and representations, Mother let Miller interview the children alone. When Miller had difficulty talking with Sister, Mother came into the room and tried, without success, to get her to talk to him. Miller testified that Mother was "very cooperative" and that, "I want to attribute [Sister's reluctance] to mostly age."

¶6 Prior to questioning Juvenile, Miller did not tell him that he had a right to have a parent present, that he had a right to remain silent, or that his statements might be used against him in criminal proceedings. Miller then questioned Juvenile and obtained the statement on which the State based its criminal case, namely, Miller's testimony that, "Timothy told me that while he was baby-sitting his sister that he did in fact kiss her vagina."

¶7 After Miller obtained Juvenile's confession, he told Mother--for the first time--that he had to report the matter to the police because "there was a possible crime that had been committed and that was something that [he] could not ignore in [his] position." Miller filed a police report. He also closed the CPS case because, in his opinion, of eleven possible risk factors, none were present in this home, there was no risk to the children imminently, and the services that the family had put in place were more than adequate. About four months later, the State filed a delinquency petition charging Juvenile with child molestation.

¶8 Juvenile filed a motion to suppress his confession on grounds that it was involuntary. The court held the suppression hearing and the adjudication hearing together. The State rested after calling Mother and Miller to testify. Counsel then argued the motion to suppress. The court, after summarizing all the circumstances it had considered, found as follows on the motion:

[T]he juvenile's parents were advised in writing that they had a right to refuse to cooperate. The caseworker did have a right to interview the child in this case, or because he is a sibling of the child that was the subject of the complaint of child abuse he had a right to interview that child and any other siblings of [the sister] without the prior written permission of the parent.

....

... This is definitely a State action. There is no doubt whatsoever.

It's a State action under the State's police power in the general sense. It was not a custodial interrogation and no Miranda warnings were given. The mother was cooperative in this case after being advised of her rights and the family's rights and after being advised that the family was under investigation. The juvenile was cooperative. The juvenile in this case is of at least average intelligence and appeared not to be nervous, upset or distracted or disturbed in any way. He is age-appropriate in school. The promises made by the caseworker was that it would be closed and apparently the caseworker followed through with that promise. The case as far as CPS was concerned was closed.

After considering all of the circumstances in this case I do find the statements were made voluntarily by the juvenile in this case. I'm focusing on the conduct of the State official and the juvenile's response, and I have also included some of the conduct and responses of the juvenile's family, that they are voluntary statements under these circumstances.

The court denied the motion to suppress. The adjudication hearing continued, with Father being the only witness called by the defense. The court adjudicated Juvenile delinquent as charged.

¶9 At disposition, the court placed Juvenile on probation with special terms and conditions, including orders that the parents pay a $40 monthly probation service fee; that Juvenile submit to DNA testing for law enforcement identification purposes; and that Juvenile undergo counseling under the direction of the probation department. Juvenile was also advised that he was now a "first time felony juvenile defendant."

¶10 Juvenile filed a timely notice of appeal. We have jurisdiction pursuant to Rules 24 through 29, Rules of Procedure for the Juvenile Court.

II.

¶11 In Miranda v. Arizona, 384 U.S. 436, 478, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Supreme Court held that the Fifth Amendment privilege against compulsory self-incrimination applies in custodial interrogations and is binding on all states. Juvenile does not argue that he was in custody, and he does not argue that he should have received Miranda warnings. Juvenile argues that his confession was involuntary under the Fourteenth Amendment Due Process Clause.

¶12 Whether or not a suspect is in custody, all confessions "must fall within the broad constitutional boundaries imposed by the Fourteenth Amendment's guarantee of fundamental fairness." Miller v. Fenton, 474 U.S. 104, 110, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985); In re Gault, 387 U.S. 1, 30-31, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967) (holding that the guarantees of due process apply to juvenile proceedings); see also United States v. Bradshaw, 935 F.2d 295, 299 (D.C.Cir.1991) ("[T]he Constitution requires that a confession be voluntary quite apart from whether or not Miranda 's prophylactic procedures are followed."); Miller v. Dugger, 838 F.2d 1530, 1535 (11th Cir.1988) ("It is now clear, however, that the requirements of Miranda 's prophylactic rules can diverge significantly from the force of the prohibition in the due process clause itself against the introduction of involuntary statements.").

¶13 Confessions are presumed to be involuntary, and the State must rebut this presumption by a preponderance of the evidence. State v. Amaya-Ruiz, 166 Ariz. 152, 164, 800 P.2d 1260, 1272 (1990); State v. Jimenez, 165 Ariz. 444, 448-49, 799 P.2d 785, 789-90 (1990); Navajo County Juv. Action No. JV91000058, 183 Ariz. 204, 206, 901 P.2d 1247, 1249 (App.1995); Maricopa County Juv. Action No. JV-501010, 174 Ariz. 599, 601, 852 P.2d 414, 416 (App.1993). We will not reverse a determination that a confession is voluntary absent clear and manifest error. ¹ Amaya-Ruiz, 166 Ariz. at 164, 800 P.2d at 1272; Jimenez, 165 Ariz. at 449, 799 P.2d at 790; Juvenile Action No. JV-501010, 174 Ariz. at 601, 852 P.2d at 416.

¶14 A due process claim must be based on "state action." In Colorado v. Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986), the Supreme Court held that "coercive police activity is a necessary predicate to the finding that a confession is not 'voluntary' within the meaning of...