Opinion
1 CA-JV 23-0179
04-09-2024
IN RE DEPENDENCY AS TO K.C.
Maricopa County Public Advocate, Mesa By Suzanne Sanchez Counsel for Appellant Arizona Attorney General's Office, Tucson By Jennifer L. Thorson Counsel for Appellee Department of Child Safety Maricopa County Office of the Legal Advocate, Phoenix By Amanda L. Adams Counsel for Appellee K.C.
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. JD43112 The Honorable Marischa Gilla, Judge
Maricopa County Public Advocate, Mesa By Suzanne Sanchez Counsel for Appellant
Arizona Attorney General's Office, Tucson By Jennifer L. Thorson Counsel for Appellee Department of Child Safety
Maricopa County Office of the Legal Advocate, Phoenix By Amanda L. Adams Counsel for Appellee K.C.
Judge Jennifer M. Perkins delivered the decision of the Court, in which Presiding Judge Andrew M. Jacobs and Judge David D. Weinzweig joined.
MEMORANDUM DECISION
PERKINS, Judge:
¶1 James C. ("Father") appeals the superior court's order barring visitation with Kylie (a pseudonym). Kylie's mother ("Mother") is not a party to this appeal. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Father is the biological parent of Kylie, born in May 2023. Kylie lived with Mother, Father, Mother's parents, and Mother's adult brother. Father and Mother are Kylie's primary caregivers.
¶3 In July 2023, Mother noticed Kylie was fussy, not eating, and had a swollen leg. She called a medical triage line and was told to take Kylie to a doctor, but Father and Mother agreed to wait and see if Kylie would heal on her own. Three days later, Mother took Kylie to the pediatrician. Noticing significant injuries, the pediatrician sent Kylie to the hospital via ambulance.
¶4 At the hospital, Kylie was diagnosed with complex skull fractures on both sides of her head, subdural bleeding, a swollen eye, two broken legs, a broken arm, and bruises all over her body, some resembling bite marks. Hospital staff and police investigators asked Father and Mother about the timing and cause of the injuries. Neither Father nor Mother could explain Kylie's injuries.
¶5 Upon release from the hospital, the Department of Child Safety ("DCS") placed Kylie in a foster home, petitioned for dependency, and moved to suspend visitation. Police began a criminal investigation into Father and Mother.
¶6 At an August 2023 evidentiary hearing on the motion to suspend visitation, Kylie's doctor testified about the nature and extent of her injuries. He concluded these injuries were the result of inflicted trauma because the parents did not provide another explanation and Kylie was an immobile, three-month-old baby.
¶7 DCS called Father and Mother to testify. Both invoked their right against self-incrimination, and neither answered any questions from DCS or presented additional evidence or witnesses. DCS asked the court to draw a negative inference based on the parents' refusal to testify, and Father's counsel objected. The court stated it would allow argument on how it should consider a negative inference but did not explicitly make one based on the refusal to testify.
¶8 After the hearing, the court filed an order barring any and all visitation between Kylie and Father and Mother. Father timely appealed, and we have jurisdiction. A.R.S. §§ 8-235, 12-120.21(A)(1); Maricopa Cnty. Juv. Action No. JD-5312 , 178 Ariz. 372, 375-76 (App. 1994) (order barring visitation is a final order).
DISCUSSION
I. Reasonable Evidence
¶9 Father argues reasonable evidence did not support the order barring visitation. The juvenile court has a great deal of discretion in dependency cases because the primary concern is the child's best interests. Arturo D. v. Dep't of Child Safety, 249 Ariz. 20, 25, ¶ 16 (App. 2020). "We will not disturb the trial court's decision as to the weight and effect of evidence unless it is clearly erroneous." No. JD-5312, 178 Ariz. at 375-76 (cleaned up).
¶10 Visitation presumptively serves the child's best interests. Michael M. v. Ariz. Dep't of Econ. Sec., 202 Ariz. 198, 200, ¶ 8 (App. 2002). "A court may properly restrict or terminate a parent's visitation rights only if visitation endangers the child." Id. at 201, ¶ 11.
¶11 Father argues that DCS did not show how visitation between Father and Kylie would endanger her. But the juvenile court considered evidence that Father and Mother waited to seek medical help for Kylie's extensive and severe injuries despite medical advice to take her to the hospital. It also considered that neither Father nor Mother explained the cause of her injuries, leading doctors to conclude the injuries were intentionally inflicted. The evidence supports the court's finding that further interactions between Kylie and Father or Mother could endanger Kylie. See Alma S. v. Dep't of Child Safety, 245 Ariz. 146, 151, ¶ 18 (2018) ("We accept the juvenile court's findings of fact if reasonable evidence and inferences support them.").
II. Adverse Inference
¶12 Father argues the juvenile court violated his right to due process by drawing an adverse inference on his decision to not testify at the evidentiary hearing. We review the court's decision to draw a negative inference for clear error. See Melissa W. v. Dep't of Child Safety, 238 Ariz. 115, 117, ¶¶ 7-8 (App. 2015). The juvenile court may draw a negative inference when a parent fails to testify at a hearing, id. at ¶¶ 5-6, even while invoking their right against self-incrimination, Montoya v. Superior Court, 173 Ariz. 129, 131 (App. 1992); see Baxter v. Palmigiano, 425 U.S. 308, 318 (1976) ("[T]he Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them.").
¶13 Father and Mother invoked their right against self incrimination at the evidentiary hearing. It is not clear from the record that the juvenile court drew a negative inference against either parent. But even assuming the court drew a negative inference from Father's refusal to testify, the court acted within its discretion to do so. See Montoya, 173 Ariz. at 131.
CONCLUSION
¶14 We affirm.