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
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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.