A dependency adjudication is the trial of the allegations contained in the dependency petition - that is, it is a trial to determine whether or not the dependency exists. An adjudication is not a hearing to determine what to do about a dependency. Decisions about long term placement or the permanent case plan are left to a later hearing called the dependency disposition.

I. PRE-HEARING PROCEDURES

A. Disclosure.
Arizona has the most liberal disclosure rules in the nation. Aside from ordinary disclosure under the Federal Rules, Rule 26.1 of the Arizona Rules of Civil Procedure puts the burden on all the parties to disclose the names, addresses of all persons who have relevant knowledge or information and the nature of their knowledge; the substance of any witness' testimony; and a list of any relevant document or piece of tangible evidence known to a party.

However because of the "informal" nature of a Juvenile Court hearings, our courts have ruled that the Rule 26.1 does not apply to dependencies.⁽¹⁾ Accordingly, litigants is required to submit formal disclosure documents or to utilize discovery devices.

Instead, disclosure in Juvenile Court practice is pretty much a one-way street. CPS routinely discloses all the documents, reports and examinations that it receives. In addition, CPS is required to submit reports to the court which contain significant information. On the other hand, the parties -- especially the parents -- tend to disclose little unless asked.

All disclosure is received by the Court as well. Unless the disclosure is a required court report, the Judge will file it in the "social file" - a file of court documents that is not open to the public except by Court order.⁽²⁾ The Judges have a need to read these reports in order to make interim case management decisions. They are expected to disregard information in the social file for the purposes of adjudication unless it is admitted as evidence.

The receipt of significant disclosure has been criticized by some as tainting the Judge's ability to fairly decide the adjudication. However, so far, no cases hold that a Judge is incapable of limiting adjudication decisions to the evidence presented.

B. Joint Pretrial Statement

The parties are required to file a joint pretrial statement at least 20 days before trial. The statement is generally prepared by the petitioner and circulated to counsel for approval.⁽³⁾ The joint statement must include:
 

1) The uncontested facts deemed material;

(2) Such contested issues of fact and law as counsel can agree are material or applicable;

(3) A separate statement by each party of other issues of fact or law which that party believes to be material;

(4) A list of the witnesses intended to be used by each party during the trial. No witness shall be used at the trial other than those listed, except for good cause shown.

(5) A list of the exhibits which each party intends to use at trial, specifying exhibits which the parties agree are admissible at trial, or if not in agreement, a list of the objections and the specific grounds for each objection that a party will make if the exhibit is offered at trial.

In addition, the pretrial statement will certify that exhibits have been exchanged.  If the parties cannot agree on the joint pretrial statement, then each party may submit a supplemental statement.  It is important that we pay careful attention to the joint pretrial statement as the failure to include a witness or exhibit might mean that it will be precluded from use at the hearing.  A sample joint pretrial statement is included in the Appendix

C. Status Conference.
About the same time that the joint pretrial statement is due, the court will usually hold a short status conference to make sure that everything is in order for the trial. Sometimes the Court will make a last ditch attempt to settle the case at the final status conference.

II. CONDUCT OF ADJUDICATION

A. Finding of Dependency in Absentia
If a parent does not appear at the adjudication, the court may, after finding that the parent had proper notice of the hearing, declare that the parent has waived the right to a hearing and is deemed to have admitted the allegations in the petition by failing to show. The court can then made a finding of dependency and make dispositional orders based on the record and evidence to date.⁽⁴⁾

If the court had previously made the admonition referred to in the Model Court section, the Judge will most likely make the finding in absentia.

B. "The Rule"
At the outset of the hearing, you may hear one of the parties stating that they "invoke the rule". While this "invocation" sounds like you might be part of a seance, the parties are, in fact, requesting that the court exclude non-party witnesses under Rule 615 of the Rules of Evidence. Under Rule 615, any party may request that the Court exclude all non-party witnesses from the courtroom so that they cannot hear the testimony of other witnesses. The rule does not apply to party witnesses who have an absolute right to be present. Under Rule 615, granting the request is automatic.

When a party "invokes the rule", the Court will ask all potential witnesses to identify themselves. The Judge will then ask the witnesses to leave the courtroom - explaining why - and will also order the witnesses not to talk to each other about their testimony. The latter order cannot be found in Rule 615 but is pretty standard in Juvenile Court. If and when a witness completes his or her testimony, with the consent of all parties that witness may remain in the courtroom but may not testify further.

C. Order of Events at Hearing.
The Judge will conduct the adjudication hearing like any other civil trial but with flexibility to deviate from strict courtroom protocol. The rules state that a

". . . contested dependency adjudication shall be as informal as the requirements of due process and fairness permit."⁽⁵⁾

Since the State has the burden of proof, it will present its evidence first. Even if the CPS's witnesses are friendly to us, our examination of them will be considered cross-examination and leading questions will be allowed. Different Judges handle the order of cross examination differently. Some have the parents' attorney go first and the child's attorney last. Others do the reverse. It is a good idea to find out before the hearing starts.

As in temporary custody hearings, witnesses may appear by telephone.⁽⁶⁾

The Judge may ask for opening statements. The Judge will usually ask for an oral summation with the parent going first and the State last. If requested, the Court may allow written summations.

D. Rules of Evidence
Dependency hearings are designed to be conducted in an informal manner.⁽⁷⁾ Nevertheless, the rules of evidence apply to most dependency hearings - especially dependency adjudications, placement hearings, severance hearings and guardianship hearings. Thus, as in any other civil trial, the evidence presented must be competent, material and relevant. The hearsay rule applies as do rules concerning foundation and opinion evidence.

There are some special rules, however, which apply only to the Juvenile Court. It is important that the juvenile court practitioner be aware of these special rules.

1. Privilege.
The doctor-patient, social worker-client and the marital privilege are all deemed waived for the purposes of abuse and neglect hearings.⁽⁸⁾ A person who speaks in confidence about child abuse or neglect is not protected by the normal societal privileges. Thus, if a patient tells his psychiatrist about on-going child abuse, the psychiatrist cannot keep that matter secret but, in fact, must report it to the appropriate authorities.

Presumably, the public policy in support of such privileges is outweighed by the public policy of protecting children from abuse or neglect. Note, however, the statutes suspending the privileges do not affect the attorney client privilege. What a client tells his or her lawyer in confidence remains protected by the evidentiary privilege subject to the Arizona Rules of Professional Conduct. ⁽⁹⁾

2. Hearsay.
The hearsay rule applies in Juvenile Court⁽¹⁰⁾. In Arizona, hearsay is defined as

". . .a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."⁽¹¹⁾.

There are three significant exceptions which apply only to dependency adjudications in Juvenile Court:
 

 
1. Statements by a Child About Abuse or Neglect
Out of court statements from a child concerning abuse or neglect are admissible by statute.⁽¹³⁾ The circumstances surrounding the child's statement must offer some basis of reliability. However, in practice, nearly all statements by children are admitted as special exceptions to the hearsay rule. Unlike other states, Arizona does not require that the hearsay statement of a child to be corroborated.

The obvious purpose of the statutory exception for hearsay statements by children is to protect children from having to testify in court. The theory is that testifying -- especially in front of the child's parents -- could cause harm to the child. While this may or may not be true in a particular case, the statute obviates the need for proponent of a child's hearsay statement to make any preliminary showing of harm to a child.

2. Written reports of case managers
The second major exception concerns the written reports of case managers. Case managers are required by statute to issue periodic written reports to the courts about the status of each dependent child. Those reports include all sorts of information - much of it involving statements of third parties such as visitation supervisors, therapists, child care providers, etc.⁽¹⁴⁾

Generally, these written reports would not be admissible as they are out of court statements offered to prove the truth of the matters asserted within them. However, by court rule, case manager's reports are admissible without foundation IF:

(1) They have been distributed to the parties at least 30 days in advance of the hearing;   and

(2) The case manager is available for cross examination.⁽¹⁵⁾

While the parties are protected from the statements in the reports that originate with the case manager by the requirement that the case manager be available for cross-examination, this hearsay exception offers little protection from third party "hearsay within hearsay" contained in these reports. As a result, some judges will allow significant amounts of hearsay contained in the case managers reports without requiring the state to produce those witnesses for cross examination.

3. Foster Care Review Board and other Official Reports.
The final special Juvenile Court exception is for reports to the court required by law. These reports include Reports of the Foster Care Review Board and reports of the CASA. ⁽¹⁶⁾ The Judge in a dependency hearing can take full cognizance of those reports without special foundation and without requiring the availability of the members of the FCRB. As with case manager's reports, FCRB reports regularly contain hearsay statements of third parties who are not required to be available for trial.

1. Hearsay statements which form the basis of an expert's opinion are admissible if they are the types of information normally relied upon by an expert in the field.⁽¹⁷⁾ Thus, the family or personal history given to a psychologist is admissible as the basis for the shrink's opinion - even if they come from a third party source unavailable for trial.

2. Statements by the case manager not included in an admissible report are not considered hearsay if they are offered against the State. They are considered a statement by a party opponent.⁽¹⁸⁾

3. Business Records [referred to in the rules as "Records of Regularly Conducted Activity" may be admissible is a proper foundation is laid.

The term "records" refer to "A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses."  Those records are admissible, if they were

(a) Made at or near the time of the underlying event,

(b) by, or from information transmitted by, a person with first hand
knowledge acquired in the course of a regularly conducted business activity,

(c) made and kept entirely in the course of that regularly conducted business
activity,⁽²⁰⁾

(d) pursuant to a regular practice of that business activity; and

(e) all the above are shown by the testimony of the custodian or other
qualified witness.⁽²¹⁾

There is a similar exception for the absence of a business record. Rule 803(7) states;

"Evidence that a matter is not included in the memoranda, reports, records, or data compilations, in any form, kept in accordance with the provisions of paragraph (6), to prove the non-occurrence or non-existence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness."⁽²³⁾

"Court shall take into consideration as a mitigating factor the availability of reasonable services to the parent or guardian to prevent or eliminate the need for removal of the child and the effort of the parent or guardian to obtain and participate in these services."⁽²⁴⁾

F. Findings of the Court
Once the adjudicatory hearing is completed, the court will make its findings in a minute entry or order. If the court finds the allegations of dependency have been proven by a preponderance of the evidence, the court must make the following findings as to each parent or guardian:

(1) That the court has jurisdiction over the subject matter and the person before the court;

(2) The factual basis for the dependency; and

(3) That the child is dependent as defined by statute.

If the court finds a dependency, then the court must schedule a dependency disposition within 30 days. Courts may make a disposition finding on the spot if the Judge has heard sufficient evidence.⁽²⁶⁾

In the next section is a checklist of evidentiary matters to consider at any dependency adjudication hearing.

1. S.S. v. Superior Court, 178 AZ 428, 874 P.2d 980 (Division I. 1994)

2. Rule 19.1 Arizona RPJC

3. Rule 6 Uniform Rules of Practice of the Superior Court

4. Rule 16.2(j) Arizona RPJC

5. Rule 16.2(i) Arizona RPJC

6. Rule 19.2 Arizona RPJC

7. Rule 16.2(i) Arizona RPJC

8. ARS § 8-805

9. See e.g. Rule 1.6 and commentary.

10. Rule 802 Arizona Rules of Evidence

11. Rule 801(c) Arizona Rules of Evidence

12. Rule 803 Arizona Rules of Evidence

13. ARS § 8-237 "The out of court statements or nonverbal conduct of a minor regarding acts of abuse or neglect perpetrated on him are admissible for all purposes in any adoption, dependency or termination of parental rights proceeding under this title if the time, content and circumstances of such a statement or nonverbal conduct provide sufficient indication of its reliability."

14. See e.g. ARS §8-802(C)(7)(b) [report for the PPH]; and ARS § 8-516(E) requiring a detailed progress report on any child in placement including:

"1. An assessment of the extent to which the division or agency is accomplishing the purpose of foster care for the child as described in the case plan.
2. An assessment of the appropriateness of the case plan.
3. The length of time the child has been in foster care.
4. The number of foster home placements the child has experienced while in foster care and the length of each placement. "

15. Rule 16.2(m) Arizona RPJC.

16. ARS §§ 8-515.03, 8-522(E)

17. Rule 803 Arizona Rules of Evidence

18. Rule 801(d)(2) Arizona Rules of Evidence.

19. Rule 803(6) Arizona Rules of Evidence.

20. Police reports are not generally admissible as business records in Arizona because they are considered "prepared for litigation" as opposed to prepared in the ordinary course of business. We think that CPS reports can arguably be characterized the same. We suspect that different judges would handle police reports or CPS records differently. There is an exception for public records and documents. But that would still face the same question - i.e., is this record kept for an official purpose or prepared for litigation?

21. Rule 803(6) Arizona Rules of Evidence.

22. Rule 803(6) Arizona Rules of Evidence.

23. Rule 803(7) Arizona Rules of Evidence

24. ARS § 8-844(B)

25. Rule 16.2(k) Arizona RPJC

26. ARS § 8-844; Rule 16.2(l) Arizona RPJC

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