Louis C. v. Department of Child Safety

IN THE

ARIZONA COURT OF APPEALS

DIVISION TWO

LOUIS C.,

Appellant,

v.

DEPARTMENT OF CHILD SAFETY AND J.C.,

Appellees.

No. 2 CA-JV 2014-0127

Filed June 24, 2015

Appeal from the Superior Court in Pima County

No. JD20140107

The Honorable Geoffrey L. Ferlan, Judge Pro Tempore

AFFIRMED

COUNSEL

The Law Office of Mark F. Willimann, LLC, Tucson

By Mark F. Willimann

Counsel for Appellant

Mark Brnovich, Arizona Attorney General

By Laura J. Huff, Assistant Attorney General, Tucson

Counsel for Appellee Department of Child Safety

LOUIS C. v. DCS

Opinion of the Court

OPINION

Judge Espinosa authored the opinion of the Court, in which

Presiding Judge Miller and Chief Judge Eckerstrom concurred.

E S P I N O S A, Judge:

¶1 Louis C. appeals from the juvenile court’s order

adjudicating his twelve-year-old son, J.C., dependent as to him. For

the following reasons, as well as those expressed in a separate

memorandum decision,1 we affirm the court’s order.

Background

¶2 “On review of an adjudication of dependency, we view

the evidence in the light most favorable to sustaining the juvenile

court’s findings.” Willie G. v. Ariz. Dep’t of Econ. Sec., 211 Ariz. 231,

¶ 21, 119 P.3d 1034, 1038 (App. 2005). Louis was awarded full

custody of J.C. in 2008 or 2009, with provisions for J.C.’s regular

contact with his mother, Marcia R., 2 who now lives in Texas. Puerto

Rico’s child protective services had once been involved with the

family after Louis had left “some type of mark” on J.C. while

spanking him; Louis reported that he “completed services” related

to those proceedings.

¶3 On February 7, 2014, Louis learned that J.C. had failed

to turn in eight school assignments and was failing a class. Louis

telephoned J.C. and told him he “would be getting eight straps [with

1Because our resolution of other issues Louis raises on appeal

does not meet the criteria for publication, we have addressed those

issues in a separate memorandum decision pursuant to Rule 111(h),

Ariz. R. Sup. Ct., Rule 28(c), Ariz. R. Civ. App. P., and Rule 103(G),

Ariz. R. P. Juv. Ct.

2The juvenile court found J.C. dependent as to both parents;

Marcia is not a party in this appeal.

LOUIS C. v. DCS

Opinion of the Court

a belt] for missing eight assignments” and “would get eight straps

every[ ]day until the assignments were turned in.” When Louis got

home, he got a belt and told J.C. to bend over and place his hands on

his bed. J.C. bent over slightly but did not brace himself as

instructed, and he fell down after the first blow from the belt. Louis

continued to strike him while telling him to “get up.” By the time

the punishment was over, Louis had struck J.C. more than eight

times on his back and buttocks, the front and back of his legs, and on

his hands, which he had raised defensively.

¶4 When Louis had left the house, J.C. telephoned Marcia,

and she told him to call 9-1-1. After two Tucson Police Department

officers arrived, one of them contacted Louis and he returned home.

Louis denied hitting J.C. and was detained and transported to a

police station; meanwhile, J.C. was taken to the Children’s Advocacy

Center (CAC). The officers remained with J.C. while photographs

were taken and observed “several marks and bruises consistent with

those made by a belt” on his back, buttocks, and legs. J.C. told a

CAC interviewer that the blows had felt like “fire on him” and he

was scared, explaining Louis had struck him hard, raising the belt

over his head or to his side to deliver the blows. He said he “gets

the strap” when he gets in trouble—the last time before this in June

2013—but this time it had been more “severe,” and the blows had

not been confined to his buttocks and hips. He recalled another time

when a “giant black/red mark was left on his buttocks” after Louis

hit him.

¶5 A detective arrived after the photographs were taken,

looked at the images contained on the photographer’s camera, and

observed from another room while J.C. was interviewed. He later

testified that photographs admitted at the dependency hearing were

among those he had seen on the camera, and he identified several

bruises or red marks that appeared to be “changing to . . . bruise[s]”

on J.C.’s back, thighs, and buttocks that were consistent with bruises

caused by “a belt type object.” According to the detective, based on

his experience and training in Arizona law, the marks left on J.C.

evinced conduct that “[went] beyond” reasonable or appropriate

discipline and fell within “the realm of child abuse.” He presented

LOUIS C. v. DCS

Opinion of the Court

the information to the Pima County Attorney’s Office, and Louis

was arrested on a charge of child abuse.

¶6 The Department of Child Safety (DCS)3 took temporary

custody of J.C. that day, and, on February 12, filed a dependency

petition alleging J.C. was dependent “due to abuse and/or neglect.”

Specifically, the petition alleged that Louis had been arrested after

he “hit [J.C.] with a belt several times,” and that, on the date the

petition was filed, “there [was] a no-contact order in place between

[Louis] and [J.C.].” Similarly, in her preliminary protective hearing

report, a DCS specialist informed the juvenile court that Louis “was

released from [custody] on 02/10/14” and “[o]ne of [his] conditions

of release [wa]s no contact of any kind with [J.C.].”

¶7 A five-day contested dependency hearing commenced

on June 2, 2014. The DCS investigator and ongoing case manager

testified, as the detective had, that the marks and bruises observed

on J.C.’s body constituted evidence of physical abuse. Louis testified

he had given J.C. eight “light to moderate swats across his butt”

with a belt as punishment for the eight missed assignments, and he

denied striking J.C. on any other part of his body or while he was on

the floor. He said he disciplined J.C. with corporal punishment only

“on occasion” and believed such discipline was required in this

instance to “instill in him the concept[s] of honesty, integrity and

responsibility.” DCS and Louis both rested their cases on June 19,

2014.

¶8 On July 1, the Pima County Superior Court granted

Louis’s motion to remand his criminal case to the grand jury for a

new finding of probable cause. On July 9, 2014, the Pima County

Attorney’s Office wrote to Louis’s criminal defense attorney to

inform him that, during a July 3 meeting, J.C. said he had fallen off

his skateboard and bruised his left side and leg three days before he

3 DCS has been substituted for the Arizona Department of

Economic Security (ADES) in this matter. See 2014 Ariz. Sess. Laws

2d Spec. Sess., ch. 1, §§ 6, 20, 54; Ariz. R. Civ. App. P. 27; Ariz. R. P.

Juv. Ct. 103(G). For simplicity, references to DCS encompass both

ADES and Child Protective Services, formerly a division of ADES.

LOUIS C. v. DCS

Opinion of the Court

had called 9-1-1, but he could not describe the location of those

bruises. J.C. confirmed that Louis had “hit him with the belt,” as he

had reported in February, but told the prosecutors, “[T]hat was

discipline[,] not child abuse”; he said he had been “mad and wanted

to go with [his] mom[,] but he was in the wrong because he was

flunking science.” On July 10, Louis appeared before a new grand

jury, which declined to indict him a second time, and the criminal

case was dismissed without prejudice.

¶9 When the dependency hearing resumed on August 7,

the juvenile court denied Louis’s motion to dismiss the dependency

petition in light of the grand jury’s “no bill.” The parties stipulated

to the admission of the prosecutor’s July 9 letter to criminal defense

counsel, the minutes of the July 11 grand jury proceedings, and a

discharge summary from an agency initially assigned to provide

services to Louis. In the discharge summary, a program coordinator

reported Louis “did not demonstrate progress in meeting his

treatment goals due to his statements that he did not commit

domestic violence and he does not need group counseling and his

lack of accountability regarding his current situation.”

¶10 After the juvenile court took the matter under

advisement, Louis filed a request for an expedited ruling and

findings of fact, specifically asking the court to determine “[w]hether

the initial [DCS] removal was based on a finding of imminent harm

to the minor or the unavailability of a parent during the four days

[Louis] was in custody” and “[w]hether the defenses available in

A.R.S. § 13-205 apply to Dependency cases.” In its ruling, the court

found DCS had proven, by a preponderance of the evidence, that

J.C. was dependent as to Louis. Apparently in response to Louis’s

request, the court also found that (1) “its decision regarding the

initial removal was based on both the unavailability of a parent

while [Louis] was incarcerated and the risk of imminent harm to

[J.C.],” and (2) “to the extent that any affirmative defense or

justification set forth under A.R.S. § 13-205 and A.R.S. § 13-403 et.

seq. may legally be used by [Louis], the facts do not support their

application given the circumstances, including the inappropriate

and unreasonable use of force which was used by [Louis] in

disciplining [J.C.].” This appeal followed.

LOUIS C. v. DCS

Opinion of the Court

Discussion

¶11 Louis argues on appeal that the juvenile court abused

its discretion in “refusing to apply A.R.S. § 13-403” to find his use of

physical force against J.C. was justified and therefore not a viable

basis for J.C.’s adjudication of dependency. He also maintains the

court erred in adjudicating J.C. dependent based on a

preponderance of the evidence, rather than requiring proof “beyond

a reasonable doubt,” pursuant to A.R.S. § 13-205, or some other,

“higher burden of proof,” consistent with A.R.S. §§ 1-601 and 1-602.

¶12 We review a dependency order for a “clear abuse of

discretion.” In re Pima Cnty. Juv. Action No. 93511, 154 Ariz. 543, 546,

744 P.2d 455, 458 (App. 1987). And, “[g]enerally, the decision of the

juvenile court as to the weight and effect of evidence will not be

disturbed unless it is clearly erroneous.” In re Maricopa Cnty. Juv.

Action No. J-75482, 111 Ariz. 588, 591, 536 P.2d 197, 200 (1975). Thus,

we will not disturb a dependency adjudication for insufficient

evidence “unless no reasonable evidence supports it.” Willie G., 211

Ariz. 231, ¶ 21, 119 P.3d at 1038. But we review de novo legal issues

that require the juvenile court to interpret and apply a statute or

procedural rule. Manuel M. v. Ariz. Dep’t of Econ. Sec., 218 Ariz. 205,

¶ 18, 181 P.3d 1126, 1131 (App. 2008). We also “review de novo the

legal question of whether the court applied the proper burden of

proof.” Parker v. City of Tucson, 233 Ariz. 422, ¶ 11, 314 P.3d 100, 106

(App. 2013).

Sufficiency of the Evidence

¶13 The statutory definition of a dependent child includes

one “[i]n need of proper and effective parental care and control . . .

who has no parent . . . willing to exercise or capable of exercising

such care and control,” as well as one whose “home is unfit by

reason of abuse, neglect, cruelty or depravity by a parent.” A.R.S.

§ 8–201(14)(a)(i), (iii). “Abuse,” as defined in § 8-201(2), includes

“the infliction or allowing of physical injury.” “Physical injury” is

not defined in § 8–201, but for the purpose of criminal child abuse,

physical injury “means the impairment of physical condition and

includes,” for example, “any skin bruising.” A.R.S. § 13–3623(F)(4);

see also State v. Albrecht, 158 Ariz. 341, 344, 762 P.2d 628, 631 (App.

LOUIS C. v. DCS

Opinion of the Court

1988) (evidence of “extensive bruising” on four-year-old’s buttocks

sufficient to establish child abuse beyond a reasonable doubt).

¶14 As detailed in the juvenile court’s ruling, the record

supports its determination that a preponderance of the evidence

established J.C. had suffered physical abuse and was dependent as

to Louis. To the extent Louis challenges the court’s resolution of

disputed facts, we will not reweigh that evidence on review. See

Ariz. Dep’t of Econ. Sec. v. Oscar O., 209 Ariz. 332, ¶¶ 4, 14, 100 P.3d

943, 945, 947 (App. 2004) (juvenile court, as trier of fact, in “best

position to weigh the evidence, observe the parties, judge the

credibility of witnesses, and resolve disputed facts”).

Justification

¶15 Louis contends the juvenile court abused its discretion

in “refusing to apply” A.R.S. §§ 13-205, 13-403, and 13-413 to find

that his punishment of J.C. was “justified” and precluded a

determination that J.C. was dependent as to Louis on the ground of

abuse. In essence, Louis argues that, had the court applied these

statutes in the manner he requested, the evidence would have been

insufficient to support the court’s adjudication of dependency. We

disagree.

¶16 Addressing criminal culpability, § 13-403(1) provides

“[a] parent . . . entrusted with the care and supervision of a

minor . . . may use reasonable and appropriate physical force upon

the minor . . . to the extent reasonably necessary and appropriate to

maintain discipline.” Section 13-413 further provides that “[n]o

person . . . shall be subject to civil liability for engaging in conduct

otherwise justified” pursuant to a justification defense.

¶17 Relying on Arizona State Department of Public Welfare v.

Barlow, 80 Ariz. 249, 252, 296 P.2d 298, 300 (1956), DCS maintains

protection of the child is the sole objective of a dependency

proceeding. And, relying on Black’s Law Dictionary 416, 933 (8th ed.

2004), it argues a dependency adjudication does not implicate a

parent’s “civil liability” under § 13-413 because it does not create an

obligation to pay money damages, as compensation for another’s

loss or injury.

LOUIS C. v. DCS

Opinion of the Court

¶18 In its ruling, the juvenile court apparently concluded it

did not need to decide this legal issue, finding that, to the extent a

justification defense may be available in a dependency proceeding, it

would not apply in this case, “given the circumstances, including

the inappropriate and unreasonable use of force” Louis used in

disciplining J.C. We find no abuse of discretion in the court’s

resolution of this primarily factual issue, and its findings are

supported by reasonable evidence in the record. Cf. Pima Cnty. No.

93511, 154 Ariz. at 546, 744 P.2d at 458 (juvenile court “in the best

position to weigh the evidence, judge the credibility of the parties,

observe the parties, and make appropriate factual findings”).

Burden of Proof

¶19 Relying on A.R.S. §§ 1-601, 1-602, and 13-205(A), Louis

also argues the juvenile court applied the wrong burden of proof in

finding a preponderance of the evidence established J.C. is

dependent. Specifically, related to his argument that his conduct

was justified under §§ 13-403 and 13-413, Louis argues that because

he is J.C.’s father, DCS was required, under § 13-205(A), “to prove

‘beyond a reasonable doubt’ that [he] was not justified under A.R.S.

§ 13-403 to use force against J.C.” In addition, he contends

determining a child’s dependency based on “a mere ‘preponderance

of the evidence’” is incompatible with the Arizona legislature’s 2010

enactment of a “Parent[s’] Bill of Rights” in §§ 1-601 and 1-602,

which recognizes a parent’s fundamental right to direct his child’s

upbringing. He suggests “a higher burden of proof” is required in

light of this legislation.

¶20 DCS correctly observes that Louis failed to raise an

argument regarding § 13-205(A) in the juvenile court. “[W]e

generally do not consider issues, even constitutional issues, raised

for the first time on appeal.” Englert v. Carondelet Health Network, 199

Ariz. 21, ¶ 13, 13 P.3d 763, 768 (App. 2000). In reviewing a

termination of parental rights, however, this court has reviewed

claims not raised below for fundamental error “[b]ecause of the

constitutional ramifications inherent” in those proceedings.

Monica C. v. Ariz. Dep’t of Econ. Sec., 211 Ariz. 89, ¶ 23, 118 P.3d 37,

42 (App. 2005). Assuming, without deciding, that fundamental error

review is also available to a parent challenging a dependency

LOUIS C. v. DCS

Opinion of the Court

adjudication, based on an argument first raised in this court, we find

no error, much less fundamental error, in the court’s adjudication of

dependency based on a preponderance of the evidence.

¶21 In A.R.S. § 8-844(C), the legislature has expressly

directed that a juvenile court “shall” enter a finding of dependency

if it “[f]inds by a preponderance of the evidence that the allegations

contained in the petition are true.”4 Louis presents no basis for this

court to ignore that specific, unambiguous direction in favor of

§ 13-205(A), which provides “the state must prove beyond a

reasonable doubt that the defendant did not act with justification”

when a criminal defendant has presented evidence that his

otherwise criminal conduct was justified. See Thomas v. Goudreault,

163 Ariz. 159, 172, 786 P.2d 1010, 1023 (App. 1989) (specific statute

addressing issue “must govern over a more general statute which

arguably could be applicable”).

¶22 As we explained in Pfeil v. Smith, 183 Ariz. 63, 66, 900

P.2d 12, 15 (App. 1995), the requirement that the state prove a

criminal defendant’s lack of justification beyond a reasonable doubt

is inapplicable to civil cases. Under § 13-413, justification may “be

the basis for an affirmative defense in a civil suit,” but a civil

defendant still has the burden to prove justification by a

preponderance of the evidence. Id. Although Pfeil was decided

before the legislature enacted § 13-205, its reasoning remains sound.

The legislature’s specification, in § 13-205, of what “the state” must

prove, and the location of the statute in chapter 2 of the criminal

code, titled “General Principles of Criminal Liability,” belie any

suggestion that the legislature intended to shift or alter the burden

of proof when a parent argues, in a dependency proceeding, that

physical discipline of a child was reasonable and justified.

4Although Louis cites § 8-844 elsewhere in his opening brief,

he omits any reference to § 8-844(C) in his arguments on appeal.

Appellate counsel is reminded of his ethical duty of “Candor

Toward the Tribunal,” ER 3.3(a), Ariz. R. Prof’l Conduct, Ariz. R.

Sup. Ct. 42, which requires “disclos[ure] to the tribunal [of] legal

authority in the controlling jurisdiction known to [him] to be

directly adverse to the position of [his] client.”

LOUIS C. v. DCS

Opinion of the Court

¶23 For similar reasons, we reject Louis’s argument that

determining a child’s dependency based on a preponderance of the

evidence is inconsistent with the legislature’s recognition, in

enacting §§ 1-601 and 1-602, that parental rights are “fundamental”

in nature. More than thirty years ago, our supreme court recognized

“the fundamental right of a parent to the custody and control of his

or her child,” but held, based on the same arguments Louis raises

here, “the preponderance of the evidence standard is the proper

standard of proof in dependency proceedings.” In re Cochise Cnty.

Juv. Action No. 5666-J, 133 Ariz. 157, 158-59, 650 P.2d 459, 460-61

(1982). The legislature codified that standard in § 8-844(C), and did

not change it when it enacted the Parents’ Bill of Rights, which

expressly provides:

This section does not authorize or allow a

parent to engage in conduct that is

unlawful or to abuse or neglect a child in

violation of the laws of this state. This

section does not prohibit courts, law

enforcement officers or employees of a

government agency responsible for child

welfare from acting in their official capacity

within the scope of their authority. This

section does not prohibit a court from

issuing an order that is otherwise permitted

by law.

§ 1-602(B). Section 8-844(C) not only permits a court to enter an

order of dependency based on a preponderance of the evidence, but

directs that a court “shall” do so. In applying that standard here, the

juvenile court issued an order expressly authorized by §§ 1-602(B)

and 8-844(C).

Disposition

¶24 The juvenile court applied the correct evidentiary

standard in adjudicating J.C. dependent, and its factual findings are

supported by the record. Accordingly, its ruling is affirmed.