Melissa D. v. Dcs ( 2016 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
MELISSA D., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, H.D., K.D., Appellees.
No. 1 CA-JV 15-0420
FILED 12-27-2016
Appeal from the Superior Court in Maricopa County
Nos. JD28153, JS17676
The Honorable Kristin C. Hoffman, Retired Judge
AFFIRMED
COUNSEL
Melissa D., Mesa
Appellant
Arizona Attorney General’s Office, Tucson
By Dawn R. Williams
Counsel for Appellee Department of Child Safety
MELISSA D. v. DCS et al.
Decision of the Court
MEMORANDUM DECISION
Judge Peter B. Swann delivered the decision of the court, in which Presiding
Judge Andrew W. Gould and Judge Patricia A. Orozco joined.
S W A N N, Judge:
¶1 Melissa D. (“Mother”) appeals the superior court’s severance
of her parental rights to H.D. and K.D. (collectively, “the children”). The
superior court found that the children were dependent as to Mother, that
Mother abused and neglected the children, and that severance was in their
best interests. Mother appeals, pro per, on constitutional and evidentiary
grounds. We affirm.
FACTS AND PROCEDURAL HISTORY
¶2 In April 2014, the Department1 received a report that the
children were receiving unnecessary medical treatments contrary to their
best interests and the recommendations of their doctors. Five days later,
the Department took custody of the children.
¶3 After over a year of the Department attempting to provide
services to Mother and Chad D. (“Father”),2 the superior court tried
dependency and severance petitions in a consolidated proceeding. See K.D.
v. Hoffman, 238 Ariz. 278 (App. 2015). After twelve days of testimony, the
superior court made detailed factual findings about the children’s
respective medical histories before and after the Department took custody.
1 Pursuant to S.B. 1001, Section 157, 51st Leg., 2nd Spec. Sess. (Ariz.
2014) (enacted), the Department of Child Safety is substituted for the
Arizona Department of Economic Security in this matter. See ARCAP
27. In the text of our decision, we refer to both the Department of Child
Safety and the Arizona Department of Economic Security as “the
Department.”
2 The superior court also severed Father’s rights, and he appealed.
After his counsel filed an affidavit pursuant to Rule 106(G) of the Arizona
Rules of Procedure for the Juvenile Court, Father’s appeal was dismissed.
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The superior court found that the children were dependent as to Mother
because she sought excessive medical procedures the children did not need
for medical conditions they did not have. See A.R.S. § 8-201(15). The
superior court found clear and convincing evidence of abuse and neglect,
and further found by a preponderance of the evidence that severance was
in the children’s best interests. See A.R.S. § 8-533(B)(2). Mother timely
appeals.
DISCUSSION
¶4 Mother argues that she was denied due process, the superior
court improperly excluded evidence, the Department destroyed evidence,
and the evidence presented does not support the superior court’s findings.3
I. DUE PROCESS
A. Right to a Jury Trial
¶5 Mother argues that the superior court improperly denied her
a jury trial. Neither the Arizona or federal constitutions require a jury trial
to sever parental rights. Monica C. v. Ariz. Dep’t of Econ. Sec., 211 Ariz. 89,
93, ¶ 17 (App. 2005). And in 2007, the Legislature eliminated the statutory
right to jury trial in severance actions. Ariz. Dep’t of Econ. Sec. v. Reinstein,
214 Ariz. 209, 213, ¶ 14 (App. 2007). The superior court correctly denied
Mother’s request.
B. Access to and Seal of Court Records
¶6 Mother next argues that she was denied access to exhibits and
records during trial and on appeal and that the records should be made
public.
¶7 In April 2015, the superior court prohibited Mother from
having any further unsupervised access to any of the case’s records. The
superior court appointed a private party to retain the records and provide
her with supervised access. We agreed such precautions were necessary
3 Mother also contends that her house and computer were searched in
violation of the Fourth Amendment. The record contains nothing
regarding such an incident, and we do not address the issue. Mother also
urges us to disregard the Department’s answering brief for untimeliness.
However, the Department showed good cause for the delay, and we
properly extended time.
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and directed the superior court to make arrangements for Mother to have
the same supervised access to the records on appeal as at trial.
¶8 The precautions were necessary to protect the children’s
privacy and safety. Mother ran a website. Several times, confidential
information about the children and court proceedings appeared online.
Before trial, the superior court held Mother in contempt for violating
confidentiality orders by putting pleadings online, posting videos to
YouTube, participating in an internet radio show, and divulging detailed
medical information about the children in interviews. In one interview, she
acknowledged the confidentiality order and her decision to ignore it. The
superior court specifically noted that Mother “has made it clear that she
does not agree with the Court’s orders or its authority to protect the privacy
of the children.”
¶9 On the sixth day of trial, the superior court closed the
proceedings to the public after partial recordings of trial testimony
appeared on a social networking site in violation of the admonition given
eight times in the previous five trial days and signed by those in the
audience. See A.R.S. § 8-525(D), (F); Ariz. R.P. Juv. Ct. 41(E), (G). Twice,
Mother threatened to post documents and information on the Internet
when the superior court properly refused her request to admit unidentified
documents into evidence.
¶10 Though Mother objected to exhibits that she had not seen or
were not “in front” of her, Mother could have viewed the records at any
time with supervision. During trial, the private party came to court and
offered Mother a digital copy of the records to use during trial, but Mother
refused.
¶11 In view of Mother’s disregard for confidentiality orders and
the instances of confidential information appearing on Mother’s website,
we and the superior court properly prohibited her from having
unsupervised access to court records. The trial proceedings were properly
closed when it became clear that those in attendance would not obey court
orders prohibiting disclosure of any personally identifiable information
about the children.
C. Waiver of Mother’s Presence at Trial
¶12 Mother next argues that she was prohibited from attending
the trial. On the sixth day of trial, after the superior court closed the
proceedings to the public, Mother claimed that she was locked in the
courtroom and not permitted to exit during a recess. After the superior
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Decision of the Court
court explained that the doors could only be locked to prevent entrance, not
exit, Mother left the courtroom for the rest of the day.
¶13 On the seventh day, Mother arrived late and refused to enter
the courtroom alone. The superior court ruled that only Mother could enter
the courtroom. Mother chose not to enter. The superior court stated that
Mother was welcome to enter at any time and had someone wait outside in
case she wished to enter; in some of the later proceedings, the door was left
unlocked.
¶14 The superior court properly closed the proceedings to the
public to prevent further Internet postings but ensured that Mother could
enter at any time. The superior court found that Mother voluntarily waived
her presence and we see nothing contrary in the record.
D. Mother’s Right to Self-representation
¶15 Mother next argues that the superior court denied her the
right to represent herself at the proceedings. Mother asked to proceed pro
per in February 2015. She proceeded pro per at trial.
¶16 Three times during trial, the Department moved to have
Mother’s right to self-represent rescinded. The superior court denied the
motions each time, and did not revisit the issue even when Mother’s
objections and outbursts grew more disruptive. When she departed on the
sixth day of trial, Mother declared that she was leaving to “do court online”
unless she could appear telephonically. The superior court denied her
request and warned her that her right to self-representation would be
waived if she was not present. Mother then left for the day.
¶17 Immediately upon her departure, the superior court
appointed her advisory counsel as her attorney and a guardian ad litem to
represent her interests. The next trial day, Mother came to trial late with an
unidentified person (“POA”) claiming to speak for her based on power of
attorney. Mother asked that POA be allowed in with her, and the superior
court denied the request. Nothing in the record suggests POA was a lawyer
or could have represented Mother in the proceedings.
¶18 Nevertheless, Mother argues that the superior court should
not have permitted her guardian ad litem or appointed counsel to represent
her. When she came to the courtroom door with POA, she gave the court
documents purporting to terminate the guardian ad litem and her
appointed counsel. The attorney then moved to withdraw. In ruling on the
motions, the superior court relied on Sixth Amendment factors:
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[W]hether an irreconcilable conflict exists between counsel
and the accused, and whether new counsel would be
confronted with the same conflict; the timing of the motion;
inconvenience to witnesses; the time period already elapsed
between the alleged offense and trial; the proclivity of the
defendant to change counsel; and quality of counsel.
State v. Torres, 208 Ariz. 340, 344, ¶ 15 (2004) (citation omitted). The superior
court found that all five factors weighed against appointing new counsel or
permitting the withdrawal halfway through trial. We agree these factors
also apply to severance trials. There was no abuse of discretion applying
them to these facts. See id. at 343, ¶ 9 (acknowledging the standard of
review on appeal).
E. Judicial Bias
¶19 Mother argues that the trial judge was generally biased. She
filed two motions seeking to disqualify judges who presided over portions
of the case. Both motions were baseless. Like the presiding judges who
decided the motions, we perceive no evidence of judicial bias in this record
— indeed, the trial judge made every effort to afford Mother the full
measure of due process despite the obstacles she raised.
¶20 After Mother stopped attending trial, the Department moved
several times to have Mother’s absence deemed admission of the allegations
and her rights severed. Each time the trial judge denied the request, giving
Mother an opportunity to return and participate in the proceedings.
Additionally, when Mother was present, the trial judge gave her significant
leeway even when her behavior was disruptive.
¶21 Mother similarly accuses this court of bias on appeal because
we limited her access to the records and did not make them public. This
court’s orders, though perhaps not the orders Mother sought, were not the
product of bias — this case required extraordinary measures after the
children’s personal information was released online and discussed in radio
programs in violation of Arizona law. See supra ¶¶ 8–9; see A.R.S. § 8-
525(D), (F); Ariz. R.P. Juv. Ct. 41(E), (G).
II. EVIDENTIARY OBJECTIONS
¶22 Mother next argues evidence was improperly excluded by the
superior court and destroyed by the Department. We review the superior
court’s admission of evidence for an abuse of discretion. See State v. Garcia,
200 Ariz. 471, 475, ¶ 25 (App. 2001).
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Decision of the Court
A. J.D.
¶23 On the third day of trial, Mother moved to allow her older
child (“J.D.”) to testify as a character witness in the middle of the
Department’s case-in-chief. The superior court’s denial of that request was
entirely proper. See Ariz. R. Evid. 611. Nonetheless, the court left open the
possibility Mother could call J.D. during her case-in-chief. The court did
not err.
B. K.D.
¶24 Mother also challenges the superior court’s refusal to let K.D.
testify. On the fourth day of trial, K.D. requested, through counsel, to
attend the trial and possibly testify. The superior court denied the request,
finding that attending or participating in the proceedings was not in K.D.’s
best interests. K.D. filed a special action arguing that children have an
absolute right to testify in severance and dependency hearings. K.D., 238
Ariz. at 279-80, ¶¶ 1, 5. We accepted jurisdiction but denied relief. Id. at
281, ¶ 11. We held that the superior court may consider the best interests
of the child in determining whether to allow the child’s testimony at such
hearings. Id. at ¶ 10.
¶25 Though we held that the court was right to consider K.D.’s
best interests, we were not asked and did not decide whether the superior
court abused its discretion by prohibiting K.D. from appearing or testifying.
See id. at 279 n.1, 281, ¶¶ 5, 10. We do so now and find no abuse of
discretion.4 K.D.’s therapist testified that it would be detrimental to K.D.’s
stability and safety and could be traumatizing, setting back K.D.’s recovery.
A forensic psychologist with the Department who evaluated K.D. also
opined that it would be detrimental for K.D. to attend or testify at trial.
¶26 The superior court acted properly, and Mother’s rights were
not impaired. See Dep’t of Child Safety v. Beene, 235 Ariz. 300, 305–07, ¶¶ 12,
19 (App. 2014) (noting that severance trials are civil matters and parents
have no federal or state constitutional right to confront witnesses and that
the best interests of the child must be balanced with a parent’s right to due
process).
4 Even if K.D. had testified at trial, it would have probably harmed
Mother’s case. K.D.’s counsel indicated K.D. “want[ed] the opportunity to
confront her mother.” Thus, excluding her testimony was not prejudicial
and may have prevented additional damaging testimony.
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C. Documents and Exhibits on Cross-examination
¶27 On two occasions, the superior court did not allow Mother to
impeach witnesses with documents that were not in evidence or had not
been disclosed. However, the superior court permitted Mother to use
documents if she could locate them in the official exhibits. On numerous
occasions the superior court sustained objections to Mother offering facts
while cross-examining witnesses. We perceive no abuse of discretion in the
evidentiary rulings or orders prohibiting Mother from offering testimony
in the form of questions.
D. Witnesses in Mother’s Case-in-chief
¶28 On the tenth day of trial, the Department rested, and the
superior court asked Mother’s counsel to call her first witness. Mother had
waived her presence and had refused to meet with or talk to her appointed
counsel. Her counsel could only rely on Mother’s disclosure statement. The
statement included, inter alia, state legislators, a superior court judge, K.D.’s
counsel, the Maricopa County Sherriff, J.D., and the children. The
descriptions of their potential testimony were vague and mostly referenced
issues irrelevant to the proceeding. The list did not include addresses or
sufficient information to subpoena the few people on the list who could
have testified. Her attorney therefore rested the case without calling any
witnesses. By failing to appear, make proper disclosures, or communicate
with her appointed counsel, Mother left her counsel with no witnesses. The
court committed no error.
E. Spoliation
¶29 Mother also contends that evidence that would have shown
the children were abused in the Department’s custody was destroyed.
Before trial, Mother filed a “motion to dismiss trial” and a “request for
sanctions” arguing, in part, that the Department and its attorney destroyed
evidence that the foster placement abused the children. The Department
explained that the former court-appointed special advocate (“CASA”) had
recorded conversations with the children. When asked to disclose the
recordings, the CASA claimed to have destroyed them.
¶30 We find no admissible evidence in the record concerning the
alleged abuses or the content of any recordings. From the record, it appears
that the CASA’s recordings may have pertained to the children’s initial
weight loss while they were in the Department’s custody. At trial, Mother
contended that the children’s weight loss endangered their health.
Witnesses testified about the children’s weight loss, and Mother cross-
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examined on the issue. Mother could have called the CASA to the stand
during her case-in-chief to testify about the allegedly destroyed tapes and
their content. She could have questioned the CASA about what she
observed during the children’s early days in the Department’s custody. But
Mother waived her presence for her case-in-chief and left her attorney with
no useable witness list. See supra ¶ 28.
¶31 The record does not indicate that the Department was ever in
possession of any recordings, or that it destroyed or otherwise failed to
disclose any evidence. Dismissal was not warranted.
III. SUFFICIENCY OF THE EVIDENCE
¶32 Mother’s final contention is that the evidence presented at
trial was insufficient to support the superior court’s findings that Mother
abused and neglected the children, and that severance was in their best
interests.5
¶33 The right to custody of one’s child is fundamental but not
absolute. Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 47, ¶ 8 (App.
2004). To sever a parent’s rights, the Department must show by clear and
convincing evidence at least one of the statutory factors. Dominique M. v.
Dep’t of Child Safety, 240 Ariz. 96, 98, ¶ 7 (App. 2016); see also A.R.S. § 8-
533(B). The Department must also show by a preponderance of the
evidence that severance is in the children’s best interests. Dominique M., 240
Ariz. at 98, ¶ 7. On appeal, we will not reweigh the evidence and will accept
the superior court’s findings if they are supported by reasonable evidence.
Id. at ¶ 6.
¶34 Though Mother is pro per by choice, she is held to the same
standard as a lawyer, Higgins v. Higgins, 194 Ariz. 266, 270, ¶ 12 (App. 1999),
and she has failed to provide any citations to the record to justify her factual
contentions, see ARCAP 13(a)(5). We have conducted our own review of
the record, and we find sufficient evidence to support severance.
5 We do not separately address the dependency finding as the clear
and convincing evidence of abuse and neglect is enough to also show
dependency by preponderance of the evidence, particularly that the
children’s “home is unfit by reason of abuse, neglect, cruelty or depravity
by a parent” under A.R.S. § 8-201(15)(a)(iii). See Louis C. v. Dep’t of Child
Safety, 237 Ariz. 484, 488, ¶¶ 11–12 (App. 2015).
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A. Abuse and Neglect
¶35 Mother first argues that the superior court did not give
enough weight to evidence that the children were diagnosed with serious
health issues by medical professionals. The superior court found that
Mother interfered with the children’s medical care, did not follow advice
from medical providers, and coached the children to act in certain ways in
order to receive additional medical care. The superior court concluded the
children were “dramatically” healthier in the Department’s custody, and
we see ample evidence in the record to support its conclusion.
¶36 An expert testified that on reviewing the children’s
voluminous medical records, the children were “absolutely” the victims of
Factitious Disorder.6 In the 21 months before the Department took custody,
the children collectively had 87 doctors’ visits, 17 hospitalizations, in-home
nursing, and wheelchairs. Additionally, Mother was advocating for one-
on-one nursing care while they were at school in case they suffered an
allergic reaction or asthma attack.
¶37 The evidence clearly shows that Mother advocated drastic
and unnecessary medical procedures, in some cases for problems that were
not medically verified. For example, there was evidence that Mother tried
to create specific symptoms or interfere with care, such as feeding a child
constipating foods, then taking the child to urgent care for an x-ray because
the child was “backed up”; seeking medications for a urinary tract infection
that would cause constipation despite the child’s alleged history of
constipation; bribing the children to behave certain ways in front of doctors;
giving misinformation about the results of medical tests to health care
professionals; and turning off IV feeds while the children were in the
hospital, preventing them from receiving the treatments ordered by their
doctors.
¶38 While in the Department’s custody, H.D. has not had stool
impactions or needed “cleanouts,” despite regularly needing them in
Mother’s care. K.D.’s weight issues were at their lowest point while Mother
still had visits with the children, then rebounded to the normal range when
the visits stopped. Though the children were given gastro stomach tubes
(“feeding tubes”) due to reported symptoms of gastroparesis, they now eat
6 We use “Factitious Disorder” to include all of the terms used
interchangeably in the record including Munchausen by proxy, factitious
disorder, illness falsification, and factitious disorder imposed on another
with illness falsification.
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orally, maintain a good weight, and can, or may soon be able to, have their
feeding tubes removed. The children’s current doctor testified that if the
children had gastroparesis, some symptoms should have manifested
themselves in the time they have been in the Department’s custody. The
children have not required, used, or wanted to use wheelchairs and have
not reacted to any of their alleged allergens.
¶39 Mother next argues that the superior court did not give
enough weight to the billing statements for “failure to thrive” while the
children have been in the Department’s custody. Mother does not point to
any billing statements in the trial record to support this claim, and we see
none. See ARCAP 13(a)(4), (5), (7). Even if such evidence were in the record,
we will not reweigh the evidence on appeal. Jesus M. v. Ariz. Dep’t of Econ.
Sec., 203 Ariz. 278, 282, ¶ 12 (App. 2002). The medical and expert testimony
established that the children are far healthier in the Department’s custody
than they were in Mother’s, and billing statements that include no medical
details would not even slightly move the scale given the weight of evidence
that Mother medically abused the children.
B. The Children’s Best Interests
¶40 The superior court must find that the children will
affirmatively benefit from the severance or be harmed by the continued
relationship with the parent. In re Maricopa Cnty. Juv. Action No. JS-500274,
167 Ariz. 1, 5 (1990). Here, there is ample evidence of both. The children
are adoptable and their current foster home is a possible adoption
placement. See Demetrius L. v. Joshlynn F., 239 Ariz. 1, 4, ¶ 17 (2016)
(“[D]epending on the circumstances, adoption can provide sufficient
benefits to support a best-interests finding . . . .”). The children have
expressed that they do not wish to return to Mother’s care, and because
Mother refused the Department-offered services to treat her probable
psychological issues, did not obey the rules for visitation, and continues to
believe the children are ill, there is a high risk the children would suffer
continued medical abuse in her custody. See Yuma Cnty. J-88-201, J-88-202,
J-88-203, 172 Ariz. 50, 53 (App. 1992) (requiring the Department to make
“diligent efforts” to reunite the family). The superior court properly found
that severance is in the children’s best interests.
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CONCLUSION
¶41 For the foregoing reasons, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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