BY LINDA BENTLEY | AUGUST 21, 2013
Judicial activism in juvenile court
‘A parent has a constitutional right to raise his or her child without government intervention’
PHOENIX – On Aug. 14, the Arizona Court of Appeals vacated a ruling by Superior Court Judge Pro Tem William Wingard that found a juvenile dependent after a juvenile court determined the Arizona Department of Economic Security (ADES) failed to demonstrate by a preponderance of the evidence that the child was dependent.
Statute defines “dependent child,” as applicable to this case, as: “A child whose home is unfit by reason of abuse, neglect, cruelty or depravity by a parent, a guardian or any other person having custody or care of the child.”
Court of Appeals Judge Maurice Portley, who penned the opinion for the concurring three-judge panel, said the court cannot amend the petition on its own after the hearing and vacated the order.
A.R.S. § 8-844(C)(2) states, “If, at the dependency adjudication hearing, the court does not find by a preponderance of the evidence that the allegations contained in the petition are true, the court shall dismiss the petition.”
The case came about when ADES received a report that Carolina H. struck her 11-year-old son in the mouth on one occasion in 2011.
ADES provided the mother with in-home family preservation services to help with her parenting skills and discipline techniques.
However, the mother failed to fully participate in the program and refused to voluntarily submit to a hair follicle test (to test for drugs).
Her son was subsequently removed from the home and placed with a relative as ADES filed a dependency petition.
The petition accused the mother of being unable to safely parent her child because she was physically and verbally abusing the child and abusing drugs.
The case went to trial and after two days the juvenile court found ADES failed to prove the allegations in the petition.
However, despite ADES’ failure to prove its allegations, the court determined there was a “substantial disconnect” between mother and son and she “did not desire to have the child in her care until … therapeutic counseling had resolved the issue,” and, as a result, the court found the child was dependent.
Carolina H. appealed, claiming the court erred in finding her child dependent after determining ADES had failed to prove the allegations in its petition.
Portley wrote, “A parent has a constitutional right to raise his or her child without government intervention … The government may not interfere with that fundamental right unless a court finds that (1) the parent is unable to parent the child for any reason defined by statute; and (2) the parent has been afforded due process.”
Noting it was incumbent upon ADES to meet its burden of proof by a preponderance of the evidence that the allegations were, in fact, true, Portley cited statute and stated, “If, however, the court ‘[d]oes not find by a preponderance of the evidence that the allegations contained in the petition are true, the court shall dismiss the petition,’ and return the child to the parent.”
In this case, the juvenile court determined ADES failed to demonstrate by a preponderance of the evidence that the boy was dependent.
More specifically, after considering the testimony of the school resource officer and examining the child’s medical records, which did not substantiate the child’s claim of physical abuse, the court found ADES did not prove the mother physically abused her son.
Additionally, after considering the testimony, including the negative results from the mother’s hair follicle test, the court found ADES had not demonstrated the mother was abusing drugs and was unable to safely parent her son.
As a result, the court was statutorily required to dismiss the petition.
However, even though the court found ADES did not meet its burden of proof, instead of dismissing the case, Wingard made his own determination, without citing any statutory basis to support his conclusions that a “substantial disconnect” could support the legal determination of dependency.
Because ADES did not file a cross appeal challenging the court’s findings of fact or legal conclusions, the appeals panel was bound by the court’s findings that ADES did not prove its allegations of dependency.
Portley also noted the mother’s due process rights were undermined by her not being afforded an opportunity to challenge the factual basis for court’s theory of dependency, which not been alleged in the petition, since the court made its determination after all the evidence was presented.
He wrote, “Accordingly, we vacate the dependency order and remand the matter back to juvenile court to dismiss the petition.”