Diamond H. v. Dcs, J.H.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DIAMOND H., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, J.H., Appellees.

No. 1 CA-JV 18-0163
FILED 11-15-2018

Appeal from the Superior Court in Maricopa County
No. JD31472
JS19297
The Honorable Cari A. Harrison, Judge

AFFIRMED

COUNSEL

The Stavris Law Firm, PLLC, Scottsdale
By Christopher Stavris
Counsel for Appellant

Arizona Attorney General’s Office, Mesa
By Lauren J. Lowe
Counsel for Appellee, Department of Child Safety
 DIAMOND H. v. DCS, J.H.
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Jennifer B. Campbell delivered the decision of the Court,
in which Judge Paul J. McMurdie and Judge Kent E. Cattani joined.

C A M P B E L L, Judge:

¶1 Diamond H. (“Mother”) appeals the juvenile court’s order
terminating her parental rights to her son, J.H.1 On appeal, Mother argues
the juvenile court fundamentally erred by admitting hearsay evidence. We
conclude no error occurred, and we affirm.

BACKGROUND

¶2 In October 2017, the Department of Child Safety (“DCS”) took
temporary custody of the child at the time of birth, pursuant to a prior court
order. In November 2017, DCS filed a termination petition alleging Mother
was unable to discharge parental duties due to mental illness, inability to
discharge parental duties due to mental deficiency, and prior termination
of parental rights within the preceding two years for the same cause. See
A.R.S. §§ 8-533(B)(3), (10).

¶3 The superior court held a contested termination hearing in
March 2018. During the hearing, clinical psychologist Dr. Leibowitz
testified about how Mother’s mental health affects her parenting ability
such that she would not be able to independently care for her child. She
opined that Mother possesses a low level of cognitive functioning and has
a mood disorder. She testified that Mother’s mental health issues manifest
in her inability to handle her own financial affairs and in her difficulty
reading and writing, making it hard for her to understand basic information
contained on food and prescription labels, to balance a checkbook, to
manage a budget, or to synthesize written information provided by schools.
She also testified Mother lacks the capacity to drive or to arrange her own
or her son’s transportation needs. After a full evaluation, Dr. Leibowitz
concluded that additional services provided by the public mental health
system would not sufficiently alter Mother’s cognitive abilities, that

1Although Mother appeals both the dependency and termination order, the
dependency order is subsumed by the termination order. See Rita J. v. Ariz.
Dep’t of Econ. Sec., 196 Ariz. 512, 515, ¶ 9 (App. 2000).

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 DIAMOND H. v. DCS, J.H.
Decision of the Court

Mother’s issues are likely chronic and prolonged, and that a child in
Mother’s care would suffer significant safety risks. Dr. Leibowitz testified
that these opinions were based on her own psychological consultation with
Mother, a review of a psychological evaluation conducted by DCS clinical
psychologist Dr. Robinson, a review of court reports, and a recent review
with the case manager.

¶4 The superior court found DCS had met its burden of proof for
two statutory grounds of termination: Mother’s mental illness or deficiency
and prior termination of parental rights. After finding that termination was
in the child’s best interests, the court terminated Mother’s parental rights.

DISCUSSION

¶5 Mother argues the superior court erred by permitting DCS to
introduce inadmissible hearsay through Dr. Leibowitz’s expert testimony.
Because Mother failed to object to this testimony below, we review this
issue for fundamental error. See Ruben M. v. Ariz. Dept. of Econ. Sec., 230
Ariz. 236, 239, ¶ 15 (App. 2012). To establish that fundamental error
occurred, the moving party bears the burden of establishing that a trial error
occurred, and that the error was both fundamental and prejudicial. State v.
Henderson, 210 Ariz. 561, 567, ¶¶ 19-20 (2005); see also State v. Escalante, 245
Ariz. 135, 142, ¶ 21 (2018) (“[T]he first step in fundamental error review is
determining whether trial error exists.”).

¶6 For hearsay evidence to be admissible, the superior court
must find that the statement falls under one of the exceptions to the hearsay
rule. See State v. Bass, 198 Ariz. 571, 577, ¶ 20 (2000). One such exception is
Arizona Rule of Evidence 703. Under Rule 703, an expert “may base an
opinion on facts or data in the case that the expert has been made aware of
or personally observed.” Those facts or data “need not be admissible for the
opinion to be admitted” if “experts in the particular field would reasonably
rely on those kinds of facts or data in forming an opinion on the subject.”
Ariz. R. Evid. 703. However, the expert may disclose those facts and data
“only if their probative value in helping the jury evaluate the opinion
substantially outweighs their prejudicial effect.” Id. Otherwise inadmissible
testimony disclosed under this rule may be admitted only “for the limited
purpose of showing the basis of the expert’s opinion.” State v. Tucker, 215
Ariz. 298, 315, ¶ 58 (2007).

¶7 Mother does not argue that any specific statements made by
Dr. Leibowitz were inadmissible hearsay. Instead, Mother argues generally
that references to “court reports, Mother’s psychological evaluation

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 DIAMOND H. v. DCS, J.H.
Decision of the Court

conducted by Dr. Robinson, and a meeting with the case manager” were
offered to “prove the truth of the matter asserted.” Without question, Dr.
Leibowitz disclosed many out-of-court statements and opinions during her
testimony. However, Dr. Leibowitz could properly rely upon and testify
about those statements “for the limited purpose of showing the basis of”
her expert opinion, Tucker, 215 Ariz. at 315, ¶ 58, if “their probative value
. . . substantially outweighs their prejudicial effect,” Ariz. R. Evid. 703.

¶8 On review, we find that any disclosures by Dr. Leibowitz
were for the limited purpose of showing the bases of her opinion.
Dr. Leibowitz testified that she relied on prior court reports, a meeting with
the case manager, and Dr. Robinson’s psychological evaluation in forming
her opinions. Her reliance on the psychological evaluation conducted by
Dr. Robinson is reasonable within the field of psychology. See State v.
Lundstrom, 161 Ariz. 141, 146 (1989) (“One doctor's reliance on the report or
opinion of another qualified doctor is practically the paradigm of
reasonable reliance.”). She also testified that she relied on court reports and
met with the case manager to familiarize herself with the case history and
developments since DCS involvement began. Dr. Leibowitz specifically
explained how each disclosed fact or opinion informed her own expert
opinion. Because those facts and opinions were admitted for the limited
purpose of showing the basis of Dr. Leibowitz’s opinions, she could
disclose them during her testimony if their probative value substantially
outweighed their prejudicial effect.

¶9 The superior court could have reasonably concluded that the
out-of-court facts and opinions presented by Dr. Leibowitz had probative
value that substantially outweighed their prejudicial effect because they
showed how Mother’s “conditions adversely affect her day-to-day
functioning and parenting ability, so that she would not be able to
independently care for her child.” See State v. Meeds, 244 Ariz. 454, 461, ¶ 17
(App. 2018) (reasoning that the probative value of hearsay evidence that
directly supported the expert’s opinion reasonably outweighed its
prejudicial effect). We conclude there was no error in the superior court’s
admission of Dr. Leibowitz’s testimony. Thus, Mother has not shown that
the superior court committed fundamental and prejudicial error. See
Escalante, 245 Ariz. at 142, ¶ 21.

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 DIAMOND H. v. DCS, J.H.
Decision of the Court

CONCLUSION

¶10 For the foregoing reasons, we affirm the superior court’s
order terminating Mother’s parental rights to J.H.

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

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