Opinion
No. 2 CA-JV 2017-0113 No. 2 CA-JV 2017-0117 (Consolidated)
10-26-2017
AUSTIN N., Appellant, v. DEPARTMENT OF CHILD SAFETY, A.N., AND A.-N., Appellees. BRITTANY R., Appellant, v. DEPARTMENT OF CHILD SAFETY, V.R., A.N., AND A.-N., Appellees.
COUNSEL Gillespie, Shields, Durrant & Goldfarb By DeeAn Gillespie Strub, Phoenix Counsel for Appellant Austin N. Michael A. Villarreal, Florence Counsel for Appellant Brittany R. Mark Brnovich, Arizona Attorney General By Cathleen E. Fuller, Assistant Attorney General, Tucson Counsel for Appellee Department of Child Safety
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f); Ariz. R. P. Juv. Ct. 103(G). Appeal from the Superior Court in Pinal County
No. S1100JD201600142
The Honorable DeLana Fuller, Judge
The Honorable Henry G. Gooday Jr., Judge
AFFIRMED
COUNSEL Gillespie, Shields, Durrant & Goldfarb
By DeeAn Gillespie Strub, Phoenix
Counsel for Appellant Austin N. Michael A. Villarreal, Florence
Counsel for Appellant Brittany R. Mark Brnovich, Arizona Attorney General
By Cathleen E. Fuller, Assistant Attorney General, Tucson
Counsel for Appellee Department of Child Safety
MEMORANDUM DECISION
Judge Eppich authored the decision of the Court, in which Presiding Judge Vásquez and Chief Judge Eckerstrom concurred. EPPICH, Judge:
¶1 In these consolidated appeals, Austin N. and Brittany R. (referred to jointly as the parents) challenge the juvenile court's June 2017 order adjudicating their children, A.N., born in April 2015, and A.-N., born in June 2016, dependent. The court also adjudicated Brittany's daughter, V.R., born in September 2012, dependent and Brittany challenges that ruling as well. The parents contend in their joint opening brief that the court abused its discretion by precluding them from calling two witnesses to testify on their behalf at the dependency hearing. We affirm for the reasons stated below.
¶2 We review a juvenile court's order adjudicating a child dependent for an abuse of discretion. Louis C. v. Dep't of Child Safety, 237 Ariz. 484, ¶ 12, 353 P.3d 364, 368 (App. 2015). We view the evidence in the light most favorable to sustaining the court's factual findings and its conclusion that the Department of Child Safety (DCS) proved the allegations in its dependency petition by a preponderance of the evidence. See Willie G. v. Ariz. Dep't of Econ. Sec., 211 Ariz. 231, ¶ 21, 119 P.3d 1034, 1038 (App. 2005); see also A.R.S. § 8-844(C) (allegations of dependency petition must be proved by preponderance of evidence). We will not disturb the court's ruling "unless the findings upon which it is based are clearly erroneous and there is no reasonable evidence supporting them." In re Pima Cty. Juv. Action No. 118537, 185 Ariz. 77, 79, 912 P.2d 1306, 1308 (App. 1994).
A.N. and A.-N. are Indian children, as defined by the Indian Child Welfare Act (ICWA). See 25 U.S.C. § 1903(4). Under ICWA, a child's dependent status must be established by a preponderance of the evidence and if the child is to remain out of the home, clear and convincing evidence must prove the "continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child." 25 U.S.C. § 1912(e); A.R.S. § 8-844(C)(1); Ariz. R. P. Juv. Ct. 55(C). The juvenile court made the findings required by ICWA and applied the correct standards.
¶3 V.R. had serious medical issues when she was an infant and was in the hospital for about four months. Brittany failed to bond with her. V.R. was removed from the home shared by Brittany and V.R.'s biological father, David R., and a dependency petition was filed in April 2013 based on substance abuse, neglect, and domestic violence. V.R. was out of the home for about a year and a half and in 2014, the dependency proceeding was dismissed.
To the extent the Arizona Department of Economic Security (ADES) took actions in this case before the creation of DCS, DCS is substituted for ADES in this decision. See 2014 Ariz. Sess. Laws 2d Spec. Sess., ch. 1, §§ 6, 20, 54.
¶4 In July 2016, an officer with the Apache Junction Police Department responded to a request by Brittany's mother for a welfare check on Brittany and V.R., stating she was concerned the child was being abused. The responding officer observed bruises on V.R.'s face, which was swollen, and notified DCS. A detective went to the home and arranged for a forensic interview and examination of V.R. Austin told the detective that one-year-old A.N. had injured V.R.'s ears by hitting her with a toy truck. He said his mother had observed A.N. hit V.R. in the face with the truck.
¶5 Brittany told the detective V.R.'s injuries were the result of "roughhousing" with A.N. and that V.R. was clumsy and had fallen out of her bed and run into walls. The paternal grandmother told him she had asked V.R., who was almost four years old, how she had been bruised and V.R. initially said Austin, whom she referred to as "Daddy." Brittany said it was then fourteen-month-old A.N., who threw toys.
¶6 V.R. was taken to a hospital for a forensic interview and examination. The examining nurse stated in her report that V.R. had "multiple bruises to both sides of her face, ear, chest, hip, back, upper arms, and upper thighs at various stages of healing." The nurse did not believe the injuries were the kind that occurred "during normal childhood play," and was particularly concerned about a laceration on V.R.'s ear because "these injuries are strongly associated with inflicted trauma as they are in a protected area." She did not find it "plausible that a 14 month old child could cause the volume and significance of injuries noted on [V.R.]."
¶7 After a pretrial conference, the juvenile court set the matter for a contested hearing on November 3, 2016. DCS filed its timely, initial notice of disclosure on September 22, 2016, listing exhibits and witnesses for the hearing. See Ariz. R. P. Juv. Ct. 44(B). It filed a timely amended notice and list on October 20. See Ariz. R. P. Juv. Ct. 44(F). On October 31, 2016, three days before the hearing, Austin filed a list of witnesses that included the paternal grandmother and O., a friend of his, as witnesses, stating they would testify regarding their observations of the interactions between the parents and the children and, as to O., how V.R. had been bruised. In their opening brief, the parents contend that during an in-chambers conference before the November 3 hearing began, DCS objected to Austin calling these two witnesses based on untimely disclosure and the court sustained that objection.
Rule 44(B), Ariz. R. P. Juv. Ct., requires a party to file a disclosure statement within sixty days of the preliminary protective hearing (PPH). The PPH was held on August 3, 2016, DCS's initial notice of disclosure was therefore timely filed as was the amended notice, filed on October 20. See Ariz. R. P. Juv. Ct. 44(F) (permitting list of witnesses and exhibits to be supplemented no later than ten days before hearing).
¶8 At the contested dependency hearing, DCS introduced a number of exhibits and called as witnesses the police detective, the nurse who conducted the forensic examination, and the DCS investigator. DCS rested and after Austin and Brittany were called to testify, Brittany's attorney asked to call the paternal grandmother in light of the testimony that had been presented. He stated he only wanted to ask her two questions, which related to the incident regarding the toy bus that Brittany claimed A.N. had thrown at V.R., injuring her and causing the bruises. Counsel acknowledged the court previously had sustained DCS's objection to Austin's prior request to call the grandmother as a witness, based on untimely disclosure. DCS objected again, this time stating on the record that multiple witnesses, including the detective, had testified about reports that V.R. was hit by a toy bus, and that the evidence was therefore "repetitive and redundant." Brittany's counsel responded, "Your honor, we have not heard from anyone who actually saw the incident." The court responded, "I sustained her objection I granted earlier," appearing to preclude the witness again on the ground of untimely disclosure.
¶9 Following the close of all evidence and a brief recess, the juvenile court ruled from the bench, finding DCS had sustained its burden of proving the allegations of the dependency petition. The court found the nurse's testimony and report compelling, and did not find entirely credible the parents' explanations for the extensive bruising on V.R.'s body, finding it particularly significant that there were no bruises on A.N. In its minute entry order, the court adopted the allegations in the dependency petition as its factual findings, and entered a final, appealable order thereafter.
¶10 The parents contend on appeal from that order that the juvenile court abused its discretion by precluding the paternal grandmother and O., from testifying, claiming they were "crucial fact witnesses" because they had observed the incidents during which A.N. hit V.R. with a toy and V.R. fell onto a toy oven. They argue the court abused its discretion by excluding "crucial fact witnesses," on whom the parents relied to refute challenges to their credibility, when DCS knew they were witnesses "long before the disclosure deadline" and was required to interview based on its duty to investigate under A.R.S. § 8-456.
¶11 "A trial court has broad discretion in admitting or excluding evidence, and we will not disturb its decision absent a clear abuse of its discretion and resulting prejudice." Lashonda M. v. Ariz. Dep't of Econ. Sec., 210 Ariz. 77, ¶ 19, 107 P.3d 923, 928-29 (App. 2005). "Generally, an abuse of discretion 'is discretion manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.'" Id., quoting Quigley v. City Court, 132 Ariz. 35, 37, 643 P.2d 738, 740 (App. 1982). Among the sanctions the juvenile court may impose for untimely disclosure of a witness is preclusion of the witness. Ariz. R. P. Juv. Ct. 44(G). The sanction for untimely disclosure "should be in accordance with the intent of [the juvenile rules], as set forth in Rule 36." Id. Rule 36, Ariz. R. P. Juv. Ct., states: "The rules should be interpreted in a manner designed to protect the best interests of the child, giving paramount consideration to the health and safety of the child."
¶12 Although Austin listed O. as a witness and apparently stated he intended to call him before the hearing began, Brittany did not. She neither filed a list of witnesses nor sought to call O. during the hearing. Brittany therefore waived any error relating to the court's preclusion of O. Cf. Christy C. v. Ariz. Dep't of Econ. Sec., 214 Ariz. 445, ¶ 21, 153 P.3d 1074, 1081 (App. 2007) (appellate court generally does not consider objections raised for first time on appeal). Similarly, although Austin asserted during opening statement and closing argument that DCS had failed to satisfy its obligation under § 8-456(C)(1) to promptly and thoroughly investigate the allegations of abuse and to consider information that would have refuted allegations of abuse or neglect, it does not appear from the record before us that the parents relied on this statute in urging the court to permit the grandmother or O. to testify. The argument is therefore waived. Christy C., 214 Ariz. 445, ¶ 21, 153 P.3d at 1081.
As we previously stated, there is no record of the in-chambers conference during which Austin's request to call the grandmother and O. was discussed. Therefore we are unable to determine what arguments Austin made. "A party is responsible for making certain the record on appeal contains all transcripts or other documents necessary for us to consider the issues raised on appeal." Baker v. Baker, 183 Ariz. 70, 73, 900 P.2d 764, 767 (App. 1995). "We generally presume items that are necessary for our consideration of the issues but not included in the record support the court's findings and conclusions." Adrian E. v. Ariz. Dep't of Econ. Sec., 215 Ariz. 96, ¶ 21, 158 P.3d 225, 231 (App. 2007).
¶13 Even assuming the parents' argument on appeal is actually an independent claim that DCS failed to comply with § 8-456(C)(1), separate from their argument that the juvenile court erred in precluding the witnesses, the juvenile court implicitly rejected that claim, and the parents have not established the court abused its discretion in doing so. The record, including the reports from DCS, the hospital, and law enforcement, as well as the testimony of the DCS investigator, the nurse, and the detective, support the court's rejection of the challenge made below. The DCS investigator testified during cross-examination that she was well aware of her duties under the statute and had considered information that potentially refuted the allegations of abuse or neglect, including information from the paternal grandmother, who claimed to have witnessed the incident with the truck. The investigator stated she had talked to the grandmother about it, and believed the grandmother had attended the team-decision-making meeting and had shared the information.
¶14 In addition, although the parents obliquely argued below that DCS's failure to comply with § 8-824 violated their due process rights, they argue on appeal that this violation "ripened to reversible error when the juvenile court excluded the witnesses." To the extent this is not the same argument that was raised below, it was waived. See Englert v. Carondelet Health Network, 199 Ariz. 21, ¶ 13, 13 P.3d 763, 768 (App. 2000) (recognizing appellate court generally will not consider arguments, including constitutional claims first raised on appeal). But even assuming the issue was preserved, as we stated above, the record supports the court's implicit rejection of any claim that DCS failed to fulfill its obligation under the statute. Consequently, there was no due process violation. We therefore turn to the question whether the court abused its discretion in precluding the grandmother from testifying and, as to Austin, whether the court abused its discretion in precluding O. from testifying based on untimely disclosure or on the ground that the testimony would have been redundant and cumulative.
Austin argued in closing that DCS did not follow the "statutory mandate" of A.R.S. § 8-824(G) in ensuring that the children could remain together, V.R. having been placed with her biological father. He asserted that DCS had relied on highly prejudicial and "inflammatory" "misinformation" adding, "that's why the principles of due process are very important in dependency matters and caseworkers are told they are supposed to follow due process things from the beginning to the end." --------
¶15 To the extent the juvenile court based its preclusion of the witnesses on the untimeliness of the disclosure, we cannot say the court abused its discretion. As we previously stated, Austin filed his list of witnesses three days before the hearing and Brittany did not seek to call the grandmother as a witness until the end of the hearing. There is no record of the in-chambers proceeding therefore we cannot determine whether Austin made an offer of proof as to what the proposed witnesses would have testified. See Ariz. R. Evid. 103(a) (to claim error resulting from exclusion of evidence party must show exclusion affected substantial right and party made offer of proof, unless substance of evidence apparent from context). Based on the limited offer of proof Brittany made during the hearing, however, and the brief synopsis of what Austin stated he thought O. and the grandmother would testify about in his untimely list of witnesses, it appears the witnesses were expected to support the claim that Austin had not abused V.R. and testify about their observations of instances in which V.R. had been injured. But as DCS points out, the court was well aware that this is what these individuals would have stated. The same information was before the court already.
¶16 The parents have not established the juvenile court abused its discretion in excluding these witnesses either because they were not timely disclosed or because their testimony would have been cumulative. And even assuming arguendo the court did err, any error was harmless and, as DCS argues, not prejudicial. The court was well aware that these witnesses were expected to support the parents' explanations for how V.R. might have been injured on two occasions. The court made clear it found the nurse's testimony credible, and she testified that these explanations were not likely to have caused the significant bruising throughout V.R.'s body, particularly on her ear. The proffered testimony would have made no difference here.
¶17 We affirm the juvenile court's order adjudicating A.N. and A.-N. dependent as to both parents, and adjudicating V.R. dependent as to Brittany.