In Re the Appeal in Maricopa County, Juvenile Action No. J-75482 , 111 Ariz. 588 ( 1975 )

HOLOHAN, Justice.

The Superior Court of Maricopa County, exercising its juvenile jurisdiction in a dependency proceeding, found the three children of appellant to be dependent children and made them wards of the court. The appellant mother filed a timely appeal. The Court of Appeals reversed the decision of the trial court in a memorandum decision. A petition for review by the state, acting through the Department of Economic Security, was granted. The opinion of the Court of Appeals is vacated.

Essentially two issues are presented for consideration: whether inadmissible evidence was considered by the court in arriving at the decision and whether there is sufficient evidence to support the decision of the superior court.

The petition alleged that the children were without proper and effective parental care and that their mother was emotionally unstable and suffers from depression; it further alleged that the father, under his present living arrangements was not able to exercise proper parental care and control.

The petition sought to have the children declared to be dependent children as defined in A.R.S. § 8-201(10). The basis alleged for seeking this status was that the children lacked proper and effective parental care and control. The petition did not allege that there was any fault or wrongdoing on the part of the mother, but there is often a feeling by parents in such proceedings that they are in effect being charged with fault or neglect. Such is not the case. This state recognizes that children are not property of theii parents whose control may only be interrupted by a finding of fault; on the contrary, Arizona recognizes that children as persons have special needs and rights which are protected by law. One of those rights is the right to effective and proper parental control and care. If a child is found to be without such parental care and control and without parents willing or capable of exercising such care and control, the child is a dependent child entitled to have such care and control furnished through the state.

At the hearing, the testimony of the parents disclosed a stormy relationship which eventually culminated in divorce in 1972. The bitterness continued between the parties even after the divorce, and the arguments were accompanied by threats by the father upon the life of the mother. The mother testified that some three weeks before the hearing her ex-husband had threatened her life. The father, however, testified that in his opinion the children were well looked after by the mother. This position was supported by the testimony of a neighbor. The mother testified that she felt that her previous emotional problems were under control so she could take care of the children. She felt that the harassment by her husband was over.

On the other hand, the mother’s psychiatrist testified concerning her emotional condition and her need for continued professional help. The social worker from the Department of Economic Security testified concerning her observations as to the conduct and condition of the children and her contacts and interviews with the mother.

Counsel for the mother argued that conditions had changed from the earlier crisis period, and he contended that the mother was capable of discharging her duties as a proper and effective parent. The trial court did not accept the arguments of counsel for appellant, and that court concluded the conditions shown by the hearing justified a finding of dependency.

Counsel for the mother argues that there was not sufficient competent evidence upon which the trial court could base a dependency finding.

Generally, the decision of the trial court as to the weight and effect of evidence will not be disturbed unless it is clearly erroneous. O’Hern v. Bowling, 109 Ariz. 90, 505 P.2d 550 (1973). All reasonable inferences must be taken in favor of supporting the findings of the trial court, and if there is any evidence to support the judgment, it must be affirmed. Jerger v. Rubin, 106 Ariz. 114, 471 P.2d 726 (1970).

The evidence at the hearing concerning the home situation, parental strife, and emotional condition of the mother were sufficient to justify the finding of dependency.

The present case presents a more difficult problem. A review of the evidence at the hearing, excluding the alleged inadmissible material, discloses a situation which would justify a finding that the children are dependent under A.R.S. § 8-201(10). There was also introduced into the hearing material from a report from a child guidance center. That report applied to only one of the three children. The trial court, pursuant to the authority granted by A.R. S. § 8-241A(l), awarded the two younger children to the care of their mother subject to the supervision of the Department of Economic Security, but the oldest child was awarded to the Department of Economic Security for placement in foster care.

The nature of the disposition made by the trial court compels the conclusion that he considered the matters presented in the report. There is nothing else in the record which seems sufficiently to distinguish the condition of the children save and except the matters in the report. This Court is squarely faced with the issue of whether the trial judge could properly consider the information found in the report.

Rule 16(a), Rules of Procedure for the Juvenile Court, 17A A.R.S., provides:

“Prior to a hearing of a neglect or dependency action, the court may examine the social records of any person or agency with reference to the child and make the same available to all interested parties and their counsel prior to the hearing.”

Subsection (e) of. the same rule provides:

“The conduct of the hearing shall be as informal as the requirements of due process and fairness permit and shall proceed generally in a manner similar to the trial of a civil action before the court sitting without a jury. After the hearing, the court shall state its findings by minute entry or written order. If the court finds that the allegations are sustained by the evidence, the court may proceed with the disposition of the case. If the evidence does not sustain the allegations, the court shall dismiss the petition.”

It is the contention of counsel for the mother that the report is just plain hearsay, and if the state wished to have the court consider the matter they should have called the .witnesses who made the report.

This Court, in adopting Rule 16(a), sanctioned a practice which had long been in use in juvenile court. Reference to the procedure is found in Caruso v. Superior Court, 100 Ariz. 167 at 173, 412 P.2d 463 at 467 (1966). Obviously', by providing that the court could examine the records prior to the hearing, we expected the trial court to make use of the information in such records. The parties to the hearing were to be provided with the same information prior to the hearing. The information was made available to the parties in this case. The position of the trial court on the issue was:

“The Court will receive and consider the report pursuant to, I believe, it’s Rule 16 of the Rules of Procedure for the Juvenile Court. You will have the opportunity and in view of your indication that you wish to do so, the Court will make available to you sufficient time, now or ■in the future, to call as witnesses, adverse witnesses, any of the parties that participated in making this report from Jane Wayland.”

While subsection (e) of Rule 16 does not require that the identical rules of evidence for civil actions be used in dependency proceedings, there must be some sound and compelling reason for departing from such rules, and the procedure must meet the requirements of due process.

Appellant’s position is that the report is hearsay and should not have been admitted for any purpose. The . guidance center report was hearsay, but this alone does not preclude its use in evidence. Since this is a civil matter we are not involved with Sixth Amendment confrontation problems. California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970); Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970).

There is authority for the position that a medical report is admissible even though it is hearsay. In Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) the United States Supreme Court stated:

“Courts have recognized the reliability and probative worth of written medical reports even in formal trials and, while acknowledging their hearsay character, have admitted them as an exception to the hearsay rule.” 402 U.S. at 405, 91 S.Ct. at 1429, 28 L.Ed.2d at 854.

For other federal cases allowing admission of medical reports over hearsay objection see Runkle v. United States, 42 F.2d 804 (CA 10, 1930); Long v. United States, 59 F.2d 602 (CA 4, 1932); White v. Zutell, 263 F.2d 613 (CA 2, 1959).

By statute, Colorado has a procedure somewhat similar to our Rule 16(a) of the juvenile court rules. Reports made pursuant to the statute are considered by the trial court in making a decision, and the procedure has been held not to violate due process. Aylor v. Aylor, 173 Colo. 294, 478 P.2d 302 (1970) (reports in divorce actions); In re People in Interest of A.R.S., 31 Colo.App. 268, 502 P.2d 92 (1972) (reports in parental severance action).

The statute urges that the consideration of the report by the trial court was not error because that court gave the appellant full opportunity to require the authors of the report to appear as witnesses and be subjected to cross-examination. Appellant did not make use of the opportunity. The state claims that appellant may not now complain that the report was improperly-considered. We do not accept the position of the state.

The burden of proof in the case was upon the state. The child guidance center report was of such a nature that its admission was very damaging to the position of appellant. By considering the report over the objection of appellant, the trial court shifted the burden to appellant to attack the material in the report. The burden should have been on the state to prove the material in the report in much the same fashion as in a civil trial.

We believe the proper procedure to use in dependency proceedings is for reports submitted under Rule 16(a) of the juvenile rules to be reviewed by the trial court, but if counsel for any party objects to any material in the report being considered by the trial court, such material may not be considered. Any party desiring to have the material in the report considered by the trial court must follow the procedure for admission of evidence in a civil case. This construction, we believe, will harmonize the provisions of subsections (a) and (e) of Rule 16 of the juvenile rule.

There was competent evidence presented to support the judgment of the trial court in finding all three children dependent, and there is competent evidence to support the disposition ordered for the two younger children. The trial court’s judgment on these matters is affirmed. Since incompetent evidence was considered in making the disposition of the oldest child that portion of the trial court’s judgment is set aside, and the cause is remanded to the superior court for a new hearing on the issue of a proper disposition of the child Michael.

Affirmed in part, reversed in part.

HAYS, J., concurs.