Melissa W. v. Department of Child Safety
238 Ariz. 115
| Ariz. Ct. App. | 2015Background
- Child P. (b. May 2013) was removed in Aug. 2013 after DCS found Melissa refusing prescribed medication and experiencing severe paranoia, hallucinations, and delusions (e.g., believing she and the baby were robots); concerns about neglect and cranial abnormalities in the infant were documented.
- P. was adjudicated dependent in Feb. 2014; the case plan was changed in Sept. 2014 to concurrent reunification and severance/adoption, and DCS moved to terminate parental rights on mental-illness grounds under A.R.S. § 8-533(B)(3).
- At the contested severance hearing Melissa did not testify; the juvenile court expressly stated it would draw an adverse inference from her failure to testify and listed topics she could have addressed (services participation, relapse/substance use, medication effects, family support).
- The court terminated Melissa’s parental rights; Melissa appealed, arguing the court erred in drawing an adverse inference and failed to state the inferences and weight given.
- The Court of Appeals affirmed, holding a negative inference from a parent’s refusal to testify at a severance hearing is permissible and, even under the Liguori factors, Melissa’s testimony was uniquely probative of parenting ability.
Issues
| Issue | Plaintiff's Argument (Melissa) | Defendant's Argument (DCS) | Held |
|---|---|---|---|
| Whether court may draw adverse inference from parent’s refusal to testify at severance hearing | Court erred by drawing adverse inference; nothing uniquely within her knowledge; testimony would be opinion not fact; DCS could have called her | A negative inference is permissible in civil proceedings when a party refuses to testify; parent is uniquely positioned to address parenting ability | Affirmed: negative inference appropriate; particularly proper in severance proceedings where parent’s present ability to parent is central |
| Whether Liguori factors were required/applicable before drawing inference | Liguori’s three-factor test should control and weighs against inference here | Even if Liguori applied, factors are satisfied (parent practically more available; testimony would naturally be favorable; facts within her knowledge) | Court need not apply Liguori when party refuses to testify; if applied, court correctly found factors supported inference |
| Whether others could supply the same evidence, so testimony not uniquely within Melissa’s knowledge | Others testified about services/substance use, so her testimony not unique | Parent’s own perspective on ability to parent is uniquely material despite overlapping evidence | Held: parent’s testimony was uniquely probative of central issue (ability to parent); no error in finding uniqueness |
| Whether court erred by not stating specific inferences or weight, or by imposing undue burden | Court failed to state which inferences/weight and improperly enumerated issues Melissa must disprove | Argument waived for lack of legal citation; appellate court declines to address | Held: Argument waived; no relief granted |
Key Cases Cited
- Gordon v. Liguori, 182 Ariz. 232, 895 P.2d 523 (App. 1995) (three-factor test for adverse inference from failure to call a witness)
- Baxter v. Palmigiano, 425 U.S. 308 (1976) (civil factfinder may draw adverse inference from party’s refusal to testify)
- Ponce v. Indus. Comm’n, 120 Ariz. 134, 584 P.2d 598 (App. 1978) (adverse inference should not be drawn unless failure to call witness suggests withholding of truth)
- Kean v. Comm’r of Internal Revenue, 469 F.2d 1183 (9th Cir. 1972) (witness must be equally available to both parties to avoid adverse inference)