Melissa W. v. Department of Child Safety

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO
MELISSA W.,
Appellant,
v.
DEPARTMENT OF CHILD SAFETY AND P.T.,
Appellees.
No. 2 CA-JV 2015-0053
Filed August 13, 2015
Appeal from the Superior Court in Pima County
No. JD20130120
The Honorable Brenden J. Griffin, Judge
AFFIRMED
COUNSEL
Richard Beck, Sahuarita
Counsel for Appellant
Mark Brnovich, Arizona Attorney General
By Cathleen E. Fuller, Assistant Attorney General, Tucson
Counsel for Appellee Department of Child Safety
OPINION
Chief Judge Eckerstrom authored the opinion of the Court, in which
Presiding Judge Miller and Judge Espinosa concurred.
MELISSA W. v. DEP’T OF CHILD SAFETY
Opinion of the Court
E C K E R S T R O M, Chief Judge:
¶1 Melissa W. appeals from the juvenile court’s order
terminating her parental rights to her son P., born in May 2013, on
mental illness grounds. See A.R.S. § 8-533(B)(3). She argues the
court erred by drawing an adverse inference based on her failure to
testify and because it “did not state the inferences made nor the
weight given to such inferences.” We affirm.
¶2 The Department of Child Safety (DCS) 1 removed P.
from Melissa’s care in August 2013 because Melissa was refusing to
comply with her prescribed medication to control her mental illness,
and she was consequently suffering from severe paranoia and
hallucinations. She was later diagnosed with schizophrenia or,
alternatively, psychosis induced by substance abuse. Her delusions
included a belief that she and her baby were robots; further, there
was evidence that the baby was not removed from the crib for long
periods and was developing cranial abnormalities. DCS filed a
dependency petition, and the juvenile court adjudicated P.
dependent in February 2014.
¶3 The juvenile court changed the case plan from
reunification to a concurrent plan of reunification and severance and
adoption in September 2014, and DCS filed a motion to terminate
Melissa’s parental rights on mental illness grounds. The court
granted DCS’s motion after a contested severance hearing at which
1Child Protective Services (CPS) was formerly a division of the
Arizona Department of Economic Security (ADES). Effective
May 29, 2014, the Arizona legislature repealed the statutory
authorization for creation of CPS and for ADES’s administration of
child welfare and placement services under title 8, and the powers,
duties, and purposes from those entities were transferred to the
newly established DCS. See 2014 Ariz. Sess. Laws 2d Spec. Sess.,
ch. 1, §§ 6, 20, 54. Accordingly, DCS has been substituted for ADES
in this matter. For simplicity, our references to DCS in this opinion
encompass both ADES and the former CPS, as appropriate.
2
MELISSA W. v. DEP’T OF CHILD SAFETY
Opinion of the Court
Melissa did not testify.2 Citing, inter alia, Gordon v. Liguori, 182 Ariz.
232, 895 P.2d 523 (App. 1995), the court stated in its ruling that “the
circumstances here warrant drawing an adverse inference against
[Melissa] for choosing not to testify.” It observed that Melissa
was in a unique position to explain
whether and how she benefited from
services . . . [and] could have explained . . .
how her recent relapse would make her
stronger in recovery; how it was her
medication that was preventing her from
visibly connecting with P[.]; why she
decided not to continue with parent-child
therapy; and whether . . . any parenting
support from [Melissa]’s adult daughter
was available and . . . how that support
might have made it possible for [Melissa] to
parent P[.]
This appeal followed.
¶4 In Liguori, we noted that “under limited circumstances”
a trier of fact could “draw an adverse inference from the failure to
present testimony.” 182 Ariz. at 236, 895 P.2d at 527. We identified
three factors a court might consider:
(1) whether the witness was under the
control of the party who failed to call him
or her, (2) whether the party failed to call a
seemingly available witness whose
testimony it would naturally be expected to
produce if it were favorable, and
(3) whether the existence or nonexistence of
a certain fact is uniquely within the
knowledge of the witness.
2 The juvenile court previously had terminated the parental
rights of P.’s unidentified father on abandonment grounds.
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MELISSA W. v. DEP’T OF CHILD SAFETY
Opinion of the Court
Id. (citations omitted). Melissa argues on appeal that the juvenile
court’s inference was inappropriate here because “[n]othing [she]
could have testified about was within her peculiar knowledge, her
testimony would have been opinion rather than fact, and [she] was
available as a witness for the State and could have been called as a
witness” by DCS.3
¶5 The test articulated in Liguori addresses the situation in
which a party fails to produce testimony—that is, a witness—to
support his or her case. See id.; Ponce v. Indus. Comm’n, 120 Ariz. 134,
136, 584 P.2d 598, 600 (App. 1978) (“An adverse inference from the
failure to call a particular witness should not be drawn unless the
failure ‘leads to a reasonable conclusion that the party is unwilling
to allow the (fact finder) to have the full truth.’”), quoting Ballard v.
Lumbermens Cas. Co., 148 N.W.2d 65, 73 (Wis. 1967). We question
whether this test should be applied when, as in this case, a party has
declined to testify instead of merely failing to call a witness. The
general rule in such circumstances is that a negative inference is
appropriate and that no analysis of factors like those described in
Liguori is necessary. See Baxter v. Palmigiano, 425 U.S. 308, 318 (1976)
(“[T]he Fifth Amendment does not forbid adverse inferences against
parties to civil actions when they refuse to testify in response to
probative evidence offered against them . . . .”); Fino v. Nodine, 646
So. 2d 746, 751 (Fla. Dist. Ct. App. 1994) (inference permissible
irrespective of availability of party to testify); Simpson v. Simpson, 209
S.E.2d 611, 614 (Ga. 1974) (“[A]lthough a person does have a right to
invoke the privilege in a civil case in order to protect himself, when
he does so, an inference against his interest may be drawn by the
factfinder.”); Daniel v. Daly, 31 N.E.3d 379, 388 (Ill. App. Ct. 2015)
(permitting “negative inference that petitioner’s failure to appear
and testify was because petitioner would have offered testimony
3Melissa cites Liguori to support the position that whether the
testimony would be fact or opinion testimony is a distinct factor that
must be evaluated. Although the court in Liguori observed that “the
testimony at issue here involves opinion, not fact,” that was relevant
to the court’s determination that the third factor did not apply. 182
Ariz. at 236, 895 P.2d at 527.
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MELISSA W. v. DEP’T OF CHILD SAFETY
Opinion of the Court
detrimental to the success of his objection”); Econ. Auto Salvage, Inc.
v. Allstate Ins. Co., 499 So. 2d 963, 977 (La. Ct. App. 1986) (negative
inference proper against party who fails to testify); Labor Relations
Comm’n v. Fall River Educators’ Ass’n, 416 N.E.2d 1340, 1344-45
(Mass. 1981) (applying inference despite burden of proof); Nassau
Cnty. Dep’t of Soc. Servs. v. Denise J., 661 N.E.2d 138, 141 (N.Y. 1995)
(“A trier of fact may draw the strongest inference that the opposing
evidence permits against a witness who fails to testify in a civil
proceeding.”).
¶6 A juvenile court’s drawing a negative inference when a
parent fails to testify at a severance hearing is particularly
appropriate. A central issue at such hearings is whether severance
of parental rights is in the child’s best interests. See § 8-533(B). The
answer to that question hinges to a large degree on the parent’s
present ability to successfully and safely parent the child. See id. We
thus see little benefit in adopting an approach that would permit a
parent to forgo, without consequence, testifying about his or her
ability to parent or about other circumstances relevant to the court’s
determination.
¶7 Even if we agreed it was necessary for a juvenile court
to evaluate the Liguori factors before it could draw a negative
inference against a non-testifying parent in a severance proceeding,
we find no error in the court’s application of those factors here.
Although Melissa suggests the state could have called her to testify,
she was not, as a practical matter, equally available to both parties
because she was in the best position to anticipate the content of her
testimony. See Kean v. Comm’r of Internal Revenue, 469 F.2d 1183,
1188 (9th Cir. 1972) (“potential witness must be equally available
both legally and practically” to avoid negative inference; party’s
“superior knowledge of the testimony that might be expected from”
witness renders witness “not as available” to adverse party). Nor is
there any question that a parent would testify at a severance hearing
if the testimony would be helpful to the parent’s case. See Liguori,
182 Ariz. at 236, 895 P.2d at 527.
¶8 Melissa’s argument, however, focuses on the third
factor—whether the witness can offer unique testimony about a
particular fact. See id. As we noted above, the juvenile court found
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MELISSA W. v. DEP’T OF CHILD SAFETY
Opinion of the Court
that Melissa could have offered testimony concerning her
participation in services or lack thereof, her substance abuse and
relapse, the effect of her medication, and the availability of family
support. Melissa points out that others could have or did testify
about those topics. While accurate, this observation does not lessen
the importance of Melissa’s testimony about her ability to parent,
which was the central issue in this proceeding. See § 8-533(B)(3). We
find no fault in the court’s determination that Melissa’s perspective
of the topics outlined by the court was material to that issue and
uniquely within Melissa’s knowledge. We therefore conclude the
court did not err in drawing a negative inference based on Melissa’s
failure to testify.
¶9 Melissa next argues the juvenile court erred by not
“stat[ing] the inferences made nor the weight given to such
inferences.” She further claims the court “placed upon [her] an
und[ue] burden of proof” by enumerating several issues she could
have testified about. Melissa has waived these arguments because
she has not supported them with citation to relevant authority;
therefore, we do not address them further. See Ariz. R. Civ.
App. P. 13(a)(7)(A) (appellate brief must contain supporting legal
authority); Ariz. R. P. Juv. Ct. 106(A) (Rule 13, Ariz. R. Civ. App. P.,
applicable to juvenile appeals); City of Tucson v. Clear Channel
Outdoor, Inc., 218 Ariz. 172, ¶ 88, 181 P.3d 219, 242 (App. 2008)
(appellate court will not address issues or arguments waived by
party’s failure to develop them adequately).
¶10 We affirm the juvenile court’s order terminating
Melissa’s parental rights.
6