                      NOTICE: NOT FOR OFFICIAL PUBLICATION.
  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                  AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                     IN THE
              ARIZONA COURT OF APPEALS
                                 DIVISION ONE


                             ROBERT A., Appellant,

                                         v.

            DEPARTMENT OF CHILD SAFETY, R.A., Appellees.

                              No. 1 CA-JV 17-0450
                                FILED 3-20-2018


            Appeal from the Superior Court in Maricopa County
                              No. JD34128
                  The Honorable M. Scott McCoy, Judge

                                   REVERSED


                                    COUNSEL

Law Office of John L. Popilek, P.C., Scottsdale
By John L. Popilek
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By Amber E. Pershon
Counsel for Appellee Department of Child Safety
                         ROBERT A. v. DCS, R.A.
                          Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Lawrence F. Winthrop delivered the decision of the Court,
in which Judge Jennifer B. Campbell and Judge Paul J. McMurdie joined.


W I N T H R O P, Presiding Judge:

¶1             Robert A. (“Father”) appeals the juvenile court’s order finding
R.A. dependent as to Father on the ground of physical abuse. Father
contends the court abused its discretion by admitting summaries of the
children’s forensic interviews into evidence in violation of his due process
rights and the Arizona Rules of Evidence, and based its ruling on
insufficient evidence. For the following reasons, we reverse.

                 FACTS AND PROCEDURAL HISTORY

¶2            Father is the biological parent of R.A., born in 2014. Father
additionally has another biological child,1 over whom he has joint custody,
and lives with his wife (“Mother”) and her two biological children: C.C.,
born in 2007; and V.C., born in 2009 (collectively, “the children”).

¶3            In 2017, DCS received a report of suspected abuse from the
children’s school. DCS, and the Maricopa County Sheriff’s Office, then
went to the school to interview C.C. and V.C.2 During the interview, V.C.
reported that Father had recently “punched” him in the foot, previously
picked him up and choked him, and had previously punched C.C. in the
stomach. The investigators, however, did not observe any bruising or other
physical signs of abuse on V.C. Following the interviews, DCS removed
the children from the home and established a safety plan, which prohibited
Father from having contact with the children pending further investigation.
As a result, Father moved out of the family home.




1       The Department of Child Safety (“DCS”) has not alleged that this
child is dependent as to Father.

2    V.C. and C.C. additionally underwent forensic interviews a couple
months after the initial interviews.



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                         ROBERT A. v. DCS, R.A.
                          Decision of the Court

¶4            DCS subsequently petitioned for dependency, alleging R.A.
was dependent as to Father on the ground of abuse, and that R.A., V.C., and
C.C. were dependent as to Mother based on her failure to protect them from
Father’s abusive behavior.3 The petition specifically alleged that Father had
punched V.C., picked him up by his neck, and choked him. It additionally
alleged that Father had punched C.C. in the stomach. DCS argued that if
any child were to stay “in the home [it] would be contrary to the child’s
welfare” and that the children’s current and future safety was at issue if
they remained with Father. DCS, however, did not specifically allege that
Father had abused R.A. or that R.A. had witnessed the abuse of V.C. and/or
C.C.

¶5             Pursuant to Rule 59, Father filed a motion to have R.A.
returned to his custody. The parties then moved for a joint dependency and
Rule 59 hearing. Before the hearing, Father joined Mother’s motion to
preclude DCS from introducing the children’s statements about the alleged
abuse, arguing the statements violated the parents’ due process rights. The
motion alternatively requested that DCS explicitly inform the parents
which of the children’s statements it intended to admit, when those
statements were made, and through which witness the statements would
be offered. In response, DCS stated that it planned to introduce V.C.’s
statements about two incidents of alleged abuse, which were previously
disclosed in its dependency petition.4 Father, however, maintained his
objection to the admission of V.C.’s statements for the dependency hearing.
Father additionally objected to DCS’ request to admit the summaries of
C.C.’s and V.C.’s forensic interviews as hearsay, arguing the transcripts or
videos of the interviews should be admitted instead. The court sustained
Father’s objection, but found the summaries may be admitted for the
dependency hearing if DCS laid the proper foundation.



3      DCS also alleged that C.C. and V.C. were dependent as to their
biological father. Before the hearing, however, DCS withdrew its
dependency petition for C.C. and V.C.

4      In 2014, V.C. received staples for a cut to his head that occurred
because he slipped after Father pushed him/patted his back. The Maricopa
County Sheriff’s Office investigated the incident, but did not press charges
and found the incident was an accident. DCS also found the claim of abuse
to be unsubstantiated. In 2017, V.C. stated Father punched him in the foot
and picked him up and choked him and punched C.C. in the stomach.



                                     3
                          ROBERT A. v. DCS, R.A.
                           Decision of the Court

¶6            At the dependency/custody hearing, Father admitted that he
occasionally used physical means to discipline the children, such as making
them run laps. Father maintained, however, that he never choked or
abused the children. Father additionally testified that V.C.’s statements,
that he had been hit and choked, were taken out of context and referred to
Father “play-fighting” or playing video games with the children. In
support of his argument, Father testified that the Maricopa County Sheriff’s
Office had closed its investigation of the 2017 incident without pressing
charges and that Father had been successfully participating in numerous
self-improvement services, such as anger management courses, parenting
courses, individual counseling, and working with a parent aide.

¶7            Next, a contract forensic interviewer testified about her
interviews with C.C. and V.C. regarding the suspected abuse in 2017.
During her testimony, DCS moved to admit the summaries of the forensic
interviews into evidence under the business records exception to the
hearsay rule. The juvenile court admitted the summaries, over Father’s
objection.5 The interviewer then testified that V.C. initially told her that he
lied about being choked, hit on the foot, and thrown to the ground because
he was mad at Father.6 V.C. then contradicted these statements, stating
Father had slapped him on the foot, but reiterated that neither he nor C.C.
had been choked. V.C. then again contradicted himself and admitted to
being choked. The interviewer also testified that V.C. told her that Father
punched C.C. in the stomach. C.C., however, did not disclose any abuse to
the interviewer, and instead said he did not want to talk because he “did
not want to lie or get in trouble.” The interviewer did not interview R.A.,
and at no point did DCS present evidence that R.A. witnessed any abuse,
or had been abused himself. A DCS investigator, however, testified that

5      The parents objected to the admission of the summaries, in part,
because, in their view, the summaries were incomplete and misleading, and
did not contain all the information obtained during the interviews. For
example, at the hearing DCS, in addressing Mother’s contention and a prior
example where V.C. was not being truthful in the subject interview, asked
Mother where in the summaries V.C. stated that he had three dogs when
the family had none. Mother’s counsel objected stating “[t]hat’s not the
forensic interview. That is a summary of the forensic interview. And that
is exactly why we objected to it being entered into evidence.”
6     Mother had, upon learning of the school’s initial report to DCS and
the Sheriff’s Department, immediately informed DCS that V.C. was under
psychiatric care for ADHD impulsive behavior disorder and lying.



                                      4
                           ROBERT A. v. DCS, R.A.
                            Decision of the Court

DCS was concerned that if Father returned home he would focus his
aggression on R.A., and that DCS would be unaware of any abuse because
of R.A.’s age.

¶8            Following the hearing, the juvenile court took the matter
under advisement and ultimately granted DCS’ petition, finding R.A.
dependent as to Father.7 Father timely appealed, and we have jurisdiction
pursuant to the Arizona Constitution, Article 6, Section 9; Arizona Revised
Statutes (“A.R.S.”) section 8-235(A) (2014); and Arizona Rules of Procedure
for the Juvenile Court 103(A).

                                  ANALYSIS

¶9             We review a juvenile court’s dependency finding for an abuse
of discretion, and will only overturn the finding if it is not supported by
reasonable evidence. Shella H. v. Dep’t of Child Safety, 239 Ariz. 47, 50, ¶ 13
(App. 2016). See also Christina G. v. Ariz. Dep’t of Econ. Sec., 227 Ariz. 231,
234, ¶ 13 (App. 2011) (“The juvenile court is in the best position to weigh
the evidence, observe the parties, judge the credibility of witnesses, and
make appropriate findings.” (citation omitted)). In reviewing the court’s
decision, we defer to its finding of facts, and view the evidence in “the light
most favorable to sustaining the juvenile court’s findings.” Id. (citing Ariz.
Dep’t of Econ. Sec. v. Matthew L., 223 Ariz. 547, 549, ¶ 7 (App. 2010)). The
court has broad discretion in making a dependency finding and must act in
the best interest of the child. Michael M. v. Ariz. Dep’t of Econ. Sec., 217 Ariz.
230, 234, ¶ 17 (App. 2007).

       I.      Due Process

¶10          On appeal Father argues the admission of the summaries into
evidence instead of the videos or transcripts of the interviews violated his
due process rights because the summaries contained the children’s hearsay
statements, which he did not have the opportunity to confront or contradict.
We disagree.

¶11            To determine the extent of a parent’s due process rights we
apply a balancing of interests’ test and consider: (1) the nature of the
proceedings; (2) the private interests at stake; (3) the state’s interests; (4) the
risk that the procedures used will lead to an erroneous decision; and (5) the
best interests of the child. See Dep’t of Child Safety v. Beene, 235 Ariz. 300,

7      R.A. was also found dependent as to Mother; however, she is not a
party to this appeal.



                                        5
                           ROBERT A. v. DCS, R.A.
                            Decision of the Court

305-06, ¶¶ 11-12 (App. 2014). Although Beene applied this balancing test to
determine whether parents had a due process right to call their children as
witnesses at a severance hearing, here, the same test can be used to
determine whether admitting the summaries containing V.C.’s statements,
that Father abused him, violated Father’s due process rights. On this
record, we conclude it does not.

¶12            Unlike a severance hearing, a dependency hearing does not
permanently alter a parent’s right to parent his child. Thus, while we
recognize that a parent has a fundamental right to parent his child, Minh T.
v. Ariz. Dep’t of Econ. Sec., 202 Ariz. 76, 79, ¶ 14 (App. 2001), this right, in a
dependency hearing, does not outweigh the state’s interest in protecting a
child from potential abuse. Father did not seek to call or cross-examine
either child, but had the opportunity to and did cross-examine the
interviewer at length about the children’s statements, her preparation of the
summaries, and subsequently, her decision to include only certain
information in those summaries. Accordingly, Father was able to clearly
highlight any discrepancies between the children’s statements in the
interviews and the information selected for the summaries. Given these
factors, and upon balancing the interests at stake, we cannot say that the
juvenile court deprived Father of his due process rights by admitting the
summaries of the interviews into evidence.8

       II.    Admissibility of Evidence

¶13          Father further argues the juvenile court’s admission of the
summaries into evidence constituted impermissible hearsay, and violated
the best evidence rule. DCS, in response, argues the summaries were
properly admitted as business records.

¶14            The admissibility of evidence in juvenile court proceedings is
governed by the Arizona Rules of Evidence, except as otherwise provided
by statute or in the juvenile court rules. Ariz. R.P. Juv. Ct. 45(A). Generally,
hearsay—an out-of-court statement offered to prove the truth of a matter
asserted—is inadmissible unless it falls within a recognized hearsay
exception. Ariz. R. Evid. 801(C); 802. One such exception is that a business
record may be admitted into evidence if:



8      We also note that, while the court ruled the summaries admissible,
that ruling did not preclude either Father or Mother from moving to admit
the videos and/or full transcripts of the interviews for the court’s
consideration. Neither chose to do so.


                                        6
                           ROBERT A. v. DCS, R.A.
                            Decision of the Court

       (A) the record was made at or near the time by -- or from
          information transmitted by -- someone with knowledge;

       (B) the record was kept in the course of a regularly conducted
          activity of a business, organization, occupation, or calling,
          whether or not for profit;

       (C) making the record was a regular practice of that activity;

       (D) all these conditions are shown by the testimony of the
          custodian or another qualified witness . . . ; and

       (E) the opponent does not show that the source of
          information or the method or circumstances of
          preparation indicate a lack of trustworthiness.


Ariz. R. Evid. 803(6).

¶15          However, even if evidence is admitted as a business record,
any hearsay statements made in that record must be independently
admissible. See State v. McGann, 132 Ariz. 296, 298 (1982).

¶16           DCS argues the summaries of the forensic interviews with
V.C. and C.C. were properly admitted as business records because the
forensic interviewer prepared the summaries after interviewing the
children and while reviewing the recording of the interviews. Further, the
interviewer testified that she regularly prepares these type of summaries as
a part of her employment with the Maricopa County Attorney’s Office.
Neither parent challenged the foundation offered for this hearsay
exception. Moreover, the children’s statements, which were paraphrased
in the summaries, were admissible under an independent exception to the
rule against hearsay. The Arizona Rules of Procedure for the Juvenile Court
allow for a child’s out-of-court statement to be admitted into evidence if the
statement concerns “acts of abuse or neglect perpetrated on the child” and
the “time, content and circumstances of [the] statement . . . provide
sufficient indicia of its reliability.” Ariz. R.P. Juv. Ct. 45(E) 9; accord A.R.S.
§ 8-237 (2014).


9      Even if the summaries were inadmissible under the business record
exception, they may have also been admissible pursuant to Ariz. R.P. Juv.
Ct. 45(D), which provides that “a report of any psychological, psychiatric,



                                        7
                          ROBERT A. v. DCS, R.A.
                           Decision of the Court

¶17            Father’s argument that the summaries do not satisfy Ariz.
R.P. Juv. Ct. 45(E) and A.R.S. § 8-237 because there is no indicia of reliability
fails. As previously noted, the person who interviewed V.C. and C.C. was
the same person who prepared the summaries. Additionally, the
interviewer testified at the hearing about her interviews with the children
and her process of preparing the summaries. Father then cross-examined
the interviewer and had the opportunity to highlight any inconsistencies in
her testimony and purported flaws in the summaries. Father provided no
evidence that the interviewer’s method of preparing the summaries was
unreliable or that the summaries contained inaccurate information. The
mere fact that the summaries did not include all the information gathered
in the interview, does not, a fortiori, render them unreliable.

¶18            Father’s next argument that the admission of the summaries
violates the best evidence rule also fails. The codification of the best
evidence rule provides that “[a]n original writing, recording, or photograph
is required in order to prove its content unless these rules or an applicable
statute provides otherwise.” Ariz. R. Evid. 1002. This rule applies only
when the contents of a writing are in dispute. See State v. Steinle, 239 Ariz.
415, 419, ¶ 19 (2016). Here, neither party seeks to prove the authenticity of
the summaries. Rather, the summaries served to illustrate the interviewer’s
interaction with the children. Further, as previously noted, either parent
could have offered the videos and/or the complete transcripts of the
interviews, and chose not to. Accordingly, the juvenile court did not abuse
its discretion in admitting the summaries into evidence.

       III.   Preponderance of the Evidence

¶19             Father also argues that DCS failed to prove R.A.’s
dependency as to Father by a preponderance of the evidence because DSC
failed to interview V.C.’s psychiatrist, failed to interview Father, and failed
to allege, let alone prove, that R.A. was at risk for abuse. On this record, we
agree.

¶20            To find a child dependent as to a parent, DCS must prove by
a preponderance of the evidence the allegations in its dependency petition.
Shella H., 239 Ariz. at 50, ¶ 13 (finding this court will only disturb a juvenile
court’s dependency finding if no reasonable evidence supports the ruling


medical, neurological, psycho-educational, psycho-sexual, substance abuse
or similar evaluation of any party . . . shall be admitted into evidence if the
report has been disclosed to the parties pursuant to Rule 44(B)(1) and the
author of the report is available for cross-examination.”


                                       8
                          ROBERT A. v. DCS, R.A.
                           Decision of the Court

(citation omitted)). As relevant here, a child will be found dependent if his
parent “is unfit by reason of abuse.” A.R.S. § 8-201(15)(a)(iii) (2017). Abuse
includes “the infliction . . . of physical injury, impairment of bodily function
or disfigurement or the infliction of . . . serious emotional damage as
evidenced by severe anxiety, depression, withdrawal or untoward
aggressive behavior.” A.R.S. § 8-201(2). Physical injury is defined as “the
impairment of physical condition and includes any skin bruising, pressure
sores, bleeding, failure to thrive, malnutrition, dehydration, burns, fracture
of any bone, subdural hematoma, soft tissue swelling, injury to any internal
organ or any physical condition that imperils health or welfare.” A.R.S.
§ 13-3623 (2010) (adopting § 8-201(2)’s definition of abuse).10

¶21           A preponderance of the evidence is “that degree of proof
which induces the mind of a reasonable man to believe one side of an issue
in preference to the other.” Anderson v. Territory, 9 Ariz. 50, 53 (1904). See
also Maricopa Cty. Juv. Action No. J-84984, 138 Ariz. 305, 310 (App. 1983),
vacated on other grounds, 138 Ariz. 282 (1983) (finding the preponderance of
the evidence requires something more than mere probabilities and must
leave a reasonable person “satisfied and convinced of the truth of the
matter”). A preponderance of the evidence standard allocates the risk of
error equally between parties and requires that the juvenile court
“determine whether a fact sought to be proved is more probable than not.”
Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 25 (2005).

¶22           At the hearing, the forensic interviewer and the DCS
investigator testified that V.C. stated that Father physically abused him and
C.C. They also testified about their interactions with the children and the
parents. Based on V.C.’s statements at the beginning of the investigation,
DCS alleged that, with Father at home, all of the children were at risk of

10     Although we reverse on insufficiency of the evidence, we further
note DCS failed to prove the existence of physical injury or abuse, as
defined in the statutes. Although DCS introduced controverted evidence
that V.C. said Father had punched and choked him, DCS failed to establish
that any of Father’s alleged actions caused V.C. serious emotional damage,
bodily impairment, or physical injury, which resulted in “the impairment
of [V.C.’s] physical condition.” See A.R.S. § 8-201(2); § 13-3623. Moreover,
we recognize that a parent has the right to use reasonable physical force to
discipline a child, without such force rising to the level of abuse. See A.R.S.
§ 13-403(1) (2010). What a parent cannot do, however, is use force that
would result in physical injury.




                                       9
                         ROBERT A. v. DCS, R.A.
                          Decision of the Court

physical abuse. However, close review of the record shows DCS failed to
present sufficient evidence that R.A. or, for that matter, any child would be
at risk in Father’s household. While a DCS caseworker opined that if V.C.
and C.C. were removed from the house Father would likely become abusive
with R.A., these statements, at best, constituted mere speculation. Even
taken at face value, the evidence concerning alleged past abuse of C.C. and
V.C.—particularly in light of V.C.’s contradictory statements and C.C.’s
refusal to “tell a lie”—is hardly compelling, let alone “more probable than
not.” See Kent K., 210 Ariz. at 284, ¶ 25. While it is generally true that the
juvenile court is in the best position to evaluate witness credibility, an
appellate court must still review that evidence and determine whether DCS
has met its burden of proof, particularly as it relates to the issue of child
safety, which is the most important factor in whether to impose or extend a
finding of dependency. Even applying that deferential standard, we find
DCS’ proof insufficient to meet its burden.11

¶23            Here, Father has already successfully completed many of the
services and classes DCS has recommended, and a DCS caseworker who
observed the children and the parents interact in the home on multiple
occasions recommended that the family be reunified. Finally, DCS
presented no meaningful evidence to support its allegation by a
preponderance of the evidence that any of the children would be at risk if
living with Father at home: there were no psychological reports concerning
Father or Mother, or any of the children; no school records indicating that
any of the children are traumatized or apprehensive in Father’s presence or
care; and no indication that Father’s progress in pending services and
instruction is anything other than completely satisfactory.

¶24          Thus, in this unusual setting, we find the juvenile court
abused its discretion in finding by a preponderance of the evidence that
R.A. is dependent as to Father.




11      Although we have previously taken judicial notice that “there may
be a psychology of abuse, that is to say, a parent who abuses one child is
likely to abuse a second child[,]” we decline on this record to do so here.
Cochise Cty. Juv. Action No. 5666-J, 133 Ariz. 157, 162 (1982).



                                     10
                        ROBERT A. v. DCS, R.A.
                         Decision of the Court

                              CONCLUSION

¶25          The juvenile court’s order finding R.A. dependent as to Father
is reversed.




                         AMY M. WOOD • Clerk of the Court
                         FILED: AA




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