In Re the Appeal in Pima County Juvenile Severance Action No. S-120171
905 P.2d 555
Ariz. Ct. App.
1995
Check Treatment

In the Matter of the APPEAL IN PIMA COUNTY JUVENILE SEVERANCE ACTION NO. S-120171.

No. 2 CA-JV 94-0049

Court of Appeals of Arizona, Division 2, Department B.

June 30, 1995

905 P.2d 555

Review Granted Nov. 21, 1995. Review Denied as Improvidently Granted Jan. 26, 1996.*

a summary review focuses on the sufficiency of the grounds contained only in the writing, it is logical that errors in the officer‘s written report would be afforded more significance. In fact, the difference in focus between a hearing and summary review strengthens this court‘s conclusion in that an error in an officer‘s certified report is not jurisdictional, but instead, is rendered harmless when evidence demonstrating an officer‘s reasonable grounds is presented at a subsequent proceeding.

Second, a summary review is available only when a person complies with A.R.S. section 28-691 by submitting to an intoxilyzer test and the results of such test prompt a 0.10 suspension. A.R.S. § 28-694(A); see also A.A.C. R17-4-913(E). A summary review is not available for an implied consent suspension. The legislature‘s decision not to give a driver a choice of methods to review an implied consent suspension is rational because there are no intoxilyzer test results when a person refuses to submit to such a test. Indeed, when an implied consent suspension is reviewed, an officer‘s testimony, credibility, and written report become even more important, as they must demonstrate that the officer had reasonable grounds to believe the person was driving under the influence without the intoxilyzer test results. This evidence is best presented in a hearing, not in an entirely written review.

In sum, Miernicki‘s analogy to proceedings reviewing a 0.10 suspension does not persuade us that is incorrect; to the contrary, it is consistent with this court‘s prior analysis and conclusion.

C. Harmless Error Analysis.

Having rejected Miernicki‘s arguments, we now analyze the present case pursuant to .

ADOT contends, and we agree, that Wagner‘s error in failing to list reasonable grounds in his certified report is harmless error. As in , “the evidence produced at the hearing demonstrated that the officer had reasonable grounds to believe that [the driver] was driving under the influ-

*

ence of intoxicating liquor.” , . Here, Wagner testified at the hearing that Miernicki‘s eyes were watery, his speech was slurred, his breath and clothes smelled like alcohol, and he failed field sobriety tests. And, as in , Miernicki “had the opportunity to cross-examine [Wagner] and to present witnesses to refute [Wagner‘s] testimony.” Therefore, because Wagner‘s erroneous failure to list reasonable grounds in the certified report did not prejudice Miernicki, it was harmless error.

CONCLUSION

Because Wagner‘s failure to list reasonable grounds in the certified report as required by A.R.S. section 28-691(D) was harmless error, the superior court erroneously reversed the ruling of the hearing officer. We vacate the court‘s judgment and remand this matter to superior court for imposition of the remainder of the suspension period.

NOYES, P.J., and GRANT, J., concur.

Grant Woods, Atty. Gen. by Edith A. Croxen, Tucson, for the State.

Catherene J. Morton, Tucson, for father.

Robert L. Barrasso, Tucson, for mother.

Law Offices of Paul F. Tosca, Jr. by Paul F. Tosca, Jr., Tucson, for minors.

OPINION

DRUKE, Chief Judge.

The Arizona Department of Economic Security (DES) sought to sever the parental rights of both the father and mother of A. and T. on numerous grounds, including chronic abuse of alcohol, dangerous drugs, and controlled substances and out-of-home placement as to each child. The juvenile court granted the severance petition as to the father but dismissed it as to the mother. Both the father and DES have appealed. In this published portion of our decision, we address only DES‘s contention that the juvenile court erred in finding that the mother‘s ingestion of alcohol during pregnancy and the father‘s allowing it could not, as a matter of law, be the basis for severance on the ground of abuse or neglect under A.R.S. § 8-533(B)(2). The remaining issues presented by DES and by the father‘s appeal are resolved in a contemporaneously filed memorandum decision. We publish only this portion because only this portion meets the standards for publication set forth in Rule 28(b), Ariz.R.Civ.App.P., 17B A.R.S. See .

It is undisputed that A. and T. were harmed by the mother‘s ingestion of alcohol during pregnancy. T. suffers from fetal alcohol syndrome; A.‘s condition is somewhat less severe but he also suffers some fetal alcohol effects. We agree with the juvenile court, however, that a “child” under the severance statute does not include a fetus. “Child” is defined in § 8-531(3) as “a person less than eighteen years of age.” Although the statute does not define “person,” we do not believe the legislature intended it to include a fetus for purposes of the severance statute. Consequently, the mother‘s ingestion of alcohol during pregnancy cannot be the basis for a finding of abuse under § 8-533(B)(2).

The Division One case of , is instructive in our analysis. The issue there was whether “person,” defined as “a human being” in A.R.S. § 13-1101(3), included a fetus for purposes of Arizona‘s first-degree murder statute. In deciding that it did not, Division One noted that the legislature could have more broadly defined “person” to include a fetus as it did when it amended the manslaughter statute. Manslaughter includes “[k]nowingly or recklessly causing the death of an unborn child....” A.R.S. § 13-1103(A)(5). Similarly, the legislature could have broadened the definition of “child” under § 8-531(3) if it had intended to include a fetus.

Division One recently reiterated its conclusion that “person” or “child” does not include unborn children in , a case more closely on point. There the court rejected the state‘s argument that it could prosecute a woman for child abuse under A.R.S. § 13-3623(B)(1) for “prenatal conduct that cause[s] [a child] injury after [his or] her birth.” (emphasis in original). The court reasoned that because “child” is defined under § 13-3623(A) as “an individual who is under eighteen years of age,” and because the legislature did not include in that definition an unborn child, it intended to proscribe only “conduct that directly endangers a child, not ... activity that affects a fetus and thereby ultimately harms the resulting child.”

Likewise, we do not believe that the severance statute should be broadly construed to include an unborn child. A parent‘s right to custody and control of his or her child is fundamental. ; . The courts of this state have held that termination of parental rights should only be considered as a last resort. ; . Therefore, we construe the statute strictly, rather than broadly. Cf. . A strict construction is consistent with the stated purpose of the Child Welfare and Placement Laws—to “safeguard the rights and interests of all parties concerned....” Ariz.Sess.Laws 1970, ch. 153 § 1.

Contrary to DES‘s argument, nothing in , requires a different conclusion as to the meaning of “child” or “person.” There the supreme court, acknowledging evolving common law in the area of tort recovery, held that “person” within the meaning of Arizona‘s wrongful death statute includes a viable fetus. Pointing out that such a construction is consistent with one of the purposes of the Wrongful Death Act, to compensate survivors for their loss, the court noted that “the analogy between civil liability for tort and criminal liability for causing death is not apt.” .

Seizing on this language, the court in refused to apply interpretation of the word “person” to the first-degree murder statute. Because of the fundamental nature of parental rights and our determination that strict construction of the statute is required, we too decline to apply here. Severance proceedings are as distinct from civil tort recovery as are criminal actions. Although it is axiomatic that the severance statute is in part de-signed to protect children, its application can result in the termination of parental rights; therefore, the protection of children is not the sole or even the overriding concern. Indeed, this is precisely why the best interest of a child alone cannot be the basis for severance, as the dissent appears to suggest. See .

We approve of the reasoning of the Connecticut Supreme Court on this very issue. In , the court considered whether the use of cocaine throughout pregnancy and just before the onset of labor could be the sole basis for terminating the mother‘s rights. The court found that the language of the severance statute itself and the involvement of fundamental rights did not permit a broad construction of “child” so as to include a fetus. The court observed that Connecticut‘s “definition of ‘child’ as a person ‘under sixteen years of age’ suggests a limitation on the applicability of that definition to a person who has been born, since that is the ordinary beginning point of one‘s ‘age.‘” .

We conclude that, while chronic use of drugs or alcohol by either parent during the mother‘s pregnancy may reflect a pattern of substance abuse and may be so telling of the kind of environment to which the child will be born as to justify the child‘s immediate removal from the parents at birth, chronic substance abuse during pregnancy in and of itself does not reflect an inability to parent that would justify severance of a parent‘s fundamental rights. Accordingly, the juvenile court correctly refused to sever either parent‘s rights on the ground of abuse of the children in utero.

ESPINOSA, Presiding Judge, specially concurring.

I concur, but write separately to express some reluctance in doing so given Judge Hathaway‘s strong dissent and the practical reality of removing these children from a nurturing environment of four years to a potentially abusive one. However, Arizona law does not give judges free rein to consider as paramount the best interests of the child when termination of the parental relationship is at stake. Moreover, while I agree with several points made by the dissent, whether the scope of parental abuse under A.R.S. § 8-533 should include permanent fetal injury is more appropriately addressed by our state legislature than judicially legislated by the courts. It should also be noted that our decision does not foreclose severance proceedings in the future if warranted.

HATHAWAY, Judge, dissenting.

The juvenile court forthrightly and explicitly found it in the children‘s best interests that parental rights be terminated. That finding discloses:

The children are residing in a very positive foster home. Both children are bonded to the foster parents and the foster parents are bonded to both children. The foster parents have been able to meet the special needs of these children in an effective way. The foster parents want to adopt these children and it would be in the best interests of the children for them to do so. It is in the best interests of the children that they remain with their foster parents. It is against the children‘s best interests for them to be placed with their parents. It is in the best interests of the children that their parents’ rights be terminated.

I agree with DES‘s contention that the trial court erred in ruling that the children could not have been abused or neglected by their mother‘s prenatal use of alcohol or their father‘s failure to protect. Of importance is whether the abuse occurred and not when. The fact of the abuse and the damage to the children should be the issues.

Abuse requires “the infliction of or allowing physical injury, impairment of bodily function or disfigurement....” A.R.S. § 8-531(2). Of importance is that the impact of the abuse affects a person meeting the definition of a child in A.R.S. § 8-531(4). The timing of the parental misconduct is unimportant in the instant case and is immaterial to the injury inflicted. One requirement that is essential to fulfill the statutory definition of “child” for purposes of parental termination, is, of course, the existence of a child for whom a termination action is sought. Here, the victim children are living persons, meeting the definition of “child” at the time the severance action was filed. The appropriate focus of the trial court should be whether the child is suffering from an injury or damage culpably caused or allowed to be caused by the parent.

I disagree with the majority‘s reliance on two criminal cases, , and (criminal prosecution not permitted for heroin abuse by mother during pregnancy). Rather, I find , more apposite. If a wrongful death action can be brought where a viable infant dies before birth for harm done in utero, as held in , it follows that responsibility for such harm is not eradicated where the child survives. Cf. (even a single incident of cocaine usage during infancy can sustain a finding of “actual impairment” to a child if the child is born with positive toxicology for cocaine); (use of drugs during pregnancy was neglect for purpose of termination action); (the protection of an unborn child‘s interest in life is bestowed at viability and injury to the fetus after that point is abuse); (child has a legal right to begin life with a sound mind and body). I believe the trial court erred in discounting the children‘s injuries knowingly inflicted by the parents during pregnancy and in not giving weight to the best interests of the children who, at the time of the court‘s ruling, had been in their foster placements, one for 41 months and the other for more than 2 1/2 years. The record shows that enough experimentation has occurred with the biological parents; the children should not be exposed to further experimental risk and are entitled to the stability of their current home, which the trial court specifically found would be in their best interests.

It is further worthy of note that in the 1994 amendment to A.R.S. § 8-533(B), in the introductory paragraph to the grounds for severance, the legislature changed the phrase “the court may also consider the needs of the child” (emphasis added) to “the court shall also consider the best interests of the child.” (emphasis added) I believe that neither the trial court nor this court have factored into the decision-making equation the best interests of the children. When that is done, taking into account the pathetic long-term history of the parents, I believe termination of parental rights is strongly indicated.

Notes

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Chief Justice Feldman and Chief Judge McGregor dissent from the portion of the order denying review.