NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL

AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

ROBERT A., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, R.A., Appellees.

No. 1 CA-JV 17-0450

Appeal from the Superior Court in Maricopa County

No. JD34128

The Honorable M. Scott McCoy, Judge

REVERSED

COUNSEL

Law Office of John L. Popilek, P.C., Scottsdale

By John L. Popilek

Counsel for Appellant

Arizona Attorney General’s Office, Phoenix

By Amber E. Pershon

Counsel for Appellee Department of Child Safety

FILED 3-20-2018
ROBERT A. v. DCS, R.A.

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Lawrence F. Winthrop delivered the decision of the Court, 

in which Judge Jennifer B. Campbell and Judge Paul J. McMurdie joined.

W I N T H R O P, Presiding Judge:

¶1 Robert A. (“Father”) appeals the juvenile court’s orderfinding 

R.A. dependent as to Father on the ground of physical abuse. Father 

contends the court abused its discretion by admitting summaries of the 

children’s forensic interviews into evidence in violation of his due process 

rights and the Arizona Rules of Evidence, and based its ruling on

insufficient evidence. For the following reasons, we reverse.

FACTS AND PROCEDURAL HISTORY

¶2 Father is the biological parent of R.A., born in 2014. Father 

additionally has another biological child,1 over whom he has joint custody, 

and lives with his wife (“Mother”) and her two biological children: C.C., 

born in 2007; and V.C., born in 2009 (collectively, “the children”).

¶3 In 2017, DCS received a report of suspected abuse from the 

children’s school. DCS, and the Maricopa County Sheriff’s Office, then 

went to the school to interview C.C. and V.C.2 During the interview, V.C. 

reported that Father had recently “punched” him in the foot, previously 

picked him up and choked him, and had previously punched C.C. in the 

stomach. The investigators, however, did not observe any bruising or other 

physical signs of abuse on V.C. Following the interviews, DCS removed 

the children from the home and established a safety plan, which prohibited

Father from having contact with the children pending further investigation. 

As a result, Father moved out of the family home.

 

1 The Department of Child Safety (“DCS”) has not alleged that this 

child is dependent as to Father.

2 V.C. and C.C. additionally underwent forensic interviews a couple 

months after the initial interviews.
ROBERT A. v. DCS, R.A.

Decision of the Court

3

¶4 DCS subsequently petitioned for dependency, alleging R.A. 

was dependent as to Father on the ground of abuse, and that R.A., V.C., and 

C.C. were dependent as to Mother based on her failure to protect them from 

Father’s abusive behavior.

3 The petition specifically alleged that Father had 

punched V.C., picked him up by his neck, and choked him. It additionally 

alleged that Father had punched C.C. in the stomach. DCS argued that if 

any child were to stay “in the home [it] would be contrary to the child’s 

welfare” and that the children’s current and future safety was at issue if 

they remained with Father. DCS, however, did not specifically allege that 

Father had abused R.A. or that R.A. had witnessed the abuse of V.C. and/or 

C.C.

¶5 Pursuant to Rule 59, Father filed a motion to have R.A. 

returned to his custody. The parties then moved for a joint dependency and 

Rule 59 hearing. Before the hearing, Father joined Mother’s motion to 

preclude DCS from introducing the children’s statements about the alleged

abuse, arguing the statements violated the parents’ due process rights. The 

motion alternatively requested that DCS explicitly inform the parents

which of the children’s statements it intended to admit, when those 

statements were made, and through which witness the statements would

be offered. In response, DCS stated that it planned to introduce V.C.’s 

statements about two incidents of alleged abuse, which were previously 

disclosed in its dependency petition.

4 Father, however, maintained his 

objection to the admission of V.C.’s statements for the dependency hearing. 

Father additionally objected to DCS’ request to admit the summaries of

C.C.’s and V.C.’s forensic interviews as hearsay, arguing the transcripts or 

videos of the interviews should be admitted instead. The court sustained 

Father’s objection, but found the summaries may be admitted for the 

dependency hearing if DCS laid the proper foundation.

 

3 DCS also alleged that C.C. and V.C. were dependent as to their 

biological father. Before the hearing, however, DCS withdrew its 

dependency petition for C.C. and V.C.

4 In 2014, V.C. received staples for a cut to his head that occurred 

because he slipped after Father pushed him/patted his back. The Maricopa 

County Sheriff’s Office investigated the incident, but did not press charges 

and found the incident was an accident. DCS also found the claim of abuse 

to be unsubstantiated. In 2017, V.C. stated Father punched him in the foot 

and picked him up and choked him and punched C.C. in the stomach.
ROBERT A. v. DCS, R.A.

Decision of the Court

4

¶6 At the dependency/custody hearing, Father admitted that he 

occasionally used physical means to discipline the children, such as making 

them run laps. Father maintained, however, that he never choked or 

abused the children. Father additionally testified that V.C.’s statements,

that he had been hit and choked, were taken out of context and referred to 

Father “play-fighting” or playing video games with the children. In 

support of his argument, Father testified that the Maricopa County Sheriff’s 

Office had closed its investigation of the 2017 incident without pressing 

charges and that Father had been successfully participating in numerous 

self-improvement services, such as anger management courses, parenting

courses, individual counseling, and working with a parent aide.

¶7 Next, a contract forensic interviewer testified about her 

interviews with C.C. and V.C. regarding the suspected abuse in 2017.

During her testimony, DCS moved to admit the summaries of the forensic 

interviews into evidence under the business records exception to the 

hearsay rule. The juvenile court admitted the summaries, over Father’s 

objection.

5 The interviewer then testified that V.C. initially told her that he

lied about being choked, hit on the foot, and thrown to the ground because 

he was mad at Father.6 V.C. then contradicted these statements, stating

Father had slapped him on the foot, but reiterated that neither he nor C.C. 

had been choked. V.C. then again contradicted himself and admitted to 

being choked. The interviewer also testified that V.C. told her that Father 

punched C.C. in the stomach. C.C., however, did not disclose any abuse to

the interviewer, and instead said he did not want to talk because he “did 

not want to lie or get in trouble.” The interviewer did not interview R.A., 

and at no point did DCS present evidence that R.A. witnessed any abuse, 

or had been abused himself. A DCS investigator, however, testified that 

 

5 The parents objected to the admission of the summaries, in part, 

because, in their view, the summaries were incomplete and misleading, and 

did not contain all the information obtained during the interviews. For 

example, at the hearing DCS, in addressing Mother’s contention and a prior 

example where V.C. was not being truthful in the subject interview, asked 

Mother where in the summaries V.C. stated that he had three dogs when 

the family had none. Mother’s counsel objected stating “[t]hat’s not the 

forensic interview. That is a summary of the forensic interview. And that 

is exactly why we objected to it being entered into evidence.”

6 Mother had, upon learning of the school’s initial report to DCS and 

the Sheriff’s Department, immediately informed DCS that V.C. was under 

psychiatric care for ADHD impulsive behavior disorder and lying.
ROBERT A. v. DCS, R.A.

Decision of the Court

5

DCS was concerned that if Father returned home he would focus his 

aggression on R.A., and that DCS would be unaware of any abuse because 

of R.A.’s age.

¶8 Following the hearing, the juvenile court took the matter 

under advisement and ultimately granted DCS’ petition, finding R.A.

dependent as to Father.7 Father timely appealed, and we have jurisdiction 

pursuant to the Arizona Constitution, Article 6, Section 9; Arizona Revised 

Statutes (“A.R.S.”) section 8-235(A) (2014); and Arizona Rules of Procedure 

for the Juvenile Court 103(A).

ANALYSIS

¶9 We review a juvenile court’s dependency finding for an abuse 

of discretion, and will only overturn the finding if it is not supported by 

reasonable evidence. Shella H. v. Dep’t of Child Safety, 239 Ariz. 47, 50, ¶ 13 

(App. 2016). See also Christina G. v. Ariz. Dep’t of Econ. Sec., 227 Ariz. 231, 

234, ¶ 13 (App. 2011) (“The juvenile court is in the best position to weigh 

the evidence, observe the parties, judge the credibility of witnesses, and 

make appropriate findings.” (citation omitted)). In reviewing the court’s 

decision, we defer to its finding of facts, and view the evidence in “the light 

most favorable to sustaining the juvenile court’s findings.” Id. (citing Ariz. 

Dep’t of Econ. Sec. v. Matthew L., 223 Ariz. 547, 549, ¶ 7 (App. 2010)). The

court has broad discretion in making a dependency finding and must act in 

the best interest of the child. Michael M. v. Ariz. Dep’t of Econ. Sec., 217 Ariz. 

230, 234, ¶ 17 (App. 2007).

I. Due Process

¶10 On appeal Father argues the admission of the summaries into 

evidence instead of the videos or transcripts of the interviews violated his 

due process rights because the summaries contained the children’s hearsay 

statements, which he did not have the opportunity to confront or contradict. 

We disagree.

¶11 To determine the extent of a parent’s due process rights we 

apply a balancing of interests’ test and consider: (1) the nature of the 

proceedings; (2) the private interests at stake; (3) the state’s interests; (4) the 

risk that the procedures used will lead to an erroneous decision; and (5) the 

best interests of the child. See Dep’t of Child Safety v. Beene, 235 Ariz. 300, 

 

7 R.A. was also found dependent as to Mother; however, she is not a 

party to this appeal.
ROBERT A. v. DCS, R.A.

Decision of the Court

6

305-06, ¶¶ 11-12 (App. 2014). Although Beene applied this balancing test to 

determine whether parents had a due process right to call their children as 

witnesses at a severance hearing, here, the same test can be used to 

determine whether admitting the summaries containing V.C.’s statements,

that Father abused him, violated Father’s due process rights. On this 

record, we conclude it does not.

¶12 Unlike a severance hearing, a dependency hearing does not 

permanently alter a parent’s right to parent his child. Thus, while we 

recognize that a parent has a fundamental right to parent his child, Minh T. 

v. Ariz. Dep’t of Econ. Sec., 202 Ariz. 76, 79, ¶ 14 (App. 2001), this right, in a 

dependency hearing, does not outweigh the state’s interest in protecting a 

child from potential abuse. Father did not seek to call or cross-examine 

either child, but had the opportunity to and did cross-examine the 

interviewer at length about the children’s statements, her preparation of the 

summaries, and subsequently, her decision to include only certain 

information in those summaries. Accordingly, Father was able to clearly 

highlight any discrepancies between the children’s statements in the 

interviews and the information selected for the summaries. Given these 

factors, and upon balancing the interests at stake, we cannot say that the 

juvenile court deprived Father of his due process rights by admitting the 

summaries of the interviews into evidence.8

II. Admissibility of Evidence 

¶13 Father further argues the juvenile court’s admission of the 

summaries into evidence constituted impermissible hearsay, and violated 

the best evidence rule. DCS, in response, argues the summaries were 

properly admitted as business records.

¶14 The admissibility of evidence in juvenile court proceedings is 

governed by the Arizona Rules of Evidence, except as otherwise provided

by statute or in the juvenile court rules. Ariz. R.P. Juv. Ct. 45(A). Generally, 

hearsay—an out-of-court statement offered to prove the truth of a matter 

asserted—is inadmissible unless it falls within a recognized hearsay

exception. Ariz. R. Evid. 801(C); 802. One such exception is that a business 

record may be admitted into evidence if:

 

8 We also note that, while the court ruled the summaries admissible, 

that ruling did not preclude either Father or Mother from moving to admit 

the videos and/or full transcripts of the interviews for the court’s 

consideration. Neither chose to do so.
ROBERT A. v. DCS, R.A.

Decision of the Court

7

(A) the record was made at or near the time by -- or from 

information transmitted by -- someone with knowledge;

(B) the record was kept in the course of a regularly conducted 

activity of a business, organization, occupation, or calling, 

whether or not for profit;

(C) making the record was a regular practice of that activity;

(D) all these conditions are shown by the testimony of the 

custodian or another qualified witness . . . ; and

(E) the opponent does not show that the source of 

information or the method or circumstances of 

preparation indicate a lack of trustworthiness.

Ariz. R. Evid. 803(6).

¶15 However, even if evidence is admitted as a business record, 

any hearsay statements made in that record must be independently 

admissible. See State v. McGann, 132 Ariz. 296, 298 (1982).

¶16 DCS argues the summaries of the forensic interviews with 

V.C. and C.C. were properly admitted as business records because the 

forensic interviewer prepared the summaries after interviewing the 

children and while reviewing the recording of the interviews. Further, the 

interviewer testified that she regularly prepares these type of summaries as 

a part of her employment with the Maricopa County Attorney’s Office. 

Neither parent challenged the foundation offered for this hearsay 

exception. Moreover, the children’s statements, which were paraphrased 

in the summaries, were admissible under an independent exception to the 

rule against hearsay. The Arizona Rules of Procedure for the Juvenile Court 

allow for a child’s out-of-court statement to be admitted into evidence if the 

statement concerns “acts of abuse or neglect perpetrated on the child” and 

the “time, content and circumstances of [the] statement . . . provide 

sufficient indicia of its reliability.” Ariz. R.P. Juv. Ct. 45(E) 9; accord A.R.S. 

§ 8-237 (2014).

 

9 Even if the summaries were inadmissible under the business record 

exception, they may have also been admissible pursuant to Ariz. R.P. Juv. 

Ct. 45(D), which provides that “a report of any psychological, psychiatric, 
ROBERT A. v. DCS, R.A.

Decision of the Court

8

¶17 Father’s argument that the summaries do not satisfy Ariz. 

R.P. Juv. Ct. 45(E) and A.R.S. § 8-237 because there is no indicia of reliability 

fails. As previously noted, the person who interviewed V.C. and C.C. was 

the same person who prepared the summaries. Additionally, the 

interviewer testified at the hearing about her interviews with the children 

and her process of preparing the summaries. Father then cross-examined

the interviewer and had the opportunity to highlight any inconsistencies in 

her testimony and purported flaws in the summaries. Father provided no 

evidence that the interviewer’s method of preparing the summaries was 

unreliable or that the summaries contained inaccurate information. The 

mere fact that the summaries did not include all the information gathered 

in the interview, does not, a fortiori, render them unreliable.

¶18 Father’s next argument that the admission of the summaries 

violates the best evidence rule also fails. The codification of the best 

evidence rule provides that “[a]n original writing, recording, or photograph 

is required in order to prove its content unless these rules or an applicable 

statute provides otherwise.” Ariz. R. Evid. 1002. This rule applies only 

when the contents of a writing are in dispute. See State v. Steinle, 239 Ariz. 

415, 419, ¶ 19 (2016). Here, neither party seeks to prove the authenticity of 

the summaries. Rather, the summaries served to illustrate the interviewer’s 

interaction with the children. Further, as previously noted, either parent 

could have offered the videos and/or the complete transcripts of the 

interviews, and chose not to. Accordingly, the juvenile court did not abuse 

its discretion in admitting the summaries into evidence.

III. Preponderance of the Evidence

¶19 Father also argues that DCS failed to prove R.A.’s 

dependency as to Father by a preponderance of the evidence because DSC 

failed to interview V.C.’s psychiatrist, failed to interview Father, and failed 

to allege, let alone prove, that R.A. was at risk for abuse. On this record, we 

agree.

¶20 To find a child dependent as to a parent, DCS must prove by 

a preponderance of the evidence the allegations in its dependency petition. 

Shella H., 239 Ariz. at 50, ¶ 13 (finding this court will only disturb a juvenile 

court’s dependency finding if no reasonable evidence supports the ruling

 

medical, neurological, psycho-educational, psycho-sexual, substance abuse 

or similar evaluation of any party . . . shall be admitted into evidence if the 

report has been disclosed to the parties pursuant to Rule 44(B)(1) and the 

author of the report is available for cross-examination.”
ROBERT A. v. DCS, R.A.

Decision of the Court

9

(citation omitted)). As relevant here, a child will be found dependent if his 

parent “is unfit by reason of abuse.” A.R.S. § 8-201(15)(a)(iii) (2017). Abuse 

includes “the infliction . . . of physical injury, impairment of bodily function 

or disfigurement or the infliction of . . . serious emotional damage as 

evidenced by severe anxiety, depression, withdrawal or untoward 

aggressive behavior.” A.R.S. § 8-201(2). Physical injury is defined as “the 

impairment of physical condition and includes any skin bruising, pressure 

sores, bleeding, failure to thrive, malnutrition, dehydration, burns, fracture 

of any bone, subdural hematoma, soft tissue swelling, injury to any internal 

organ or any physical condition that imperils health or welfare.” A.R.S. 

§ 13-3623 (2010) (adopting § 8-201(2)’s definition of abuse).10

¶21 A preponderance of the evidence is “that degree of proof 

which induces the mind of a reasonable man to believe one side of an issue 

in preference to the other.” Anderson v. Territory, 9 Ariz. 50, 53 (1904). See 

also Maricopa Cty. Juv. Action No. J-84984, 138 Ariz. 305, 310 (App. 1983), 

vacated on other grounds, 138 Ariz. 282 (1983) (finding the preponderance of 

the evidence requires something more than mere probabilities and must 

leave a reasonable person “satisfied and convinced of the truth of the 

matter”). A preponderance of the evidence standard allocates the risk of 

error equally between parties and requires that the juvenile court 

“determine whether a fact sought to be proved is more probable than not.” 

Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 25 (2005).

¶22 At the hearing, the forensic interviewer and the DCS 

investigator testified that V.C. stated that Father physically abused him and 

C.C. They also testified about their interactions with the children and the 

parents. Based on V.C.’s statements at the beginning of the investigation, 

DCS alleged that, with Father at home, all of the children were at risk of 

 

10 Although we reverse on insufficiency of the evidence, we further 

note DCS failed to prove the existence of physical injury or abuse, as 

defined in the statutes. Although DCS introduced controverted evidence 

that V.C. said Father had punched and choked him, DCS failed to establish 

that any of Father’s alleged actions caused V.C. serious emotional damage, 

bodily impairment, or physical injury, which resulted in “the impairment 

of [V.C.’s] physical condition.” See A.R.S. § 8-201(2); § 13-3623. Moreover, 

we recognize that a parent has the right to use reasonable physical force to 

discipline a child, without such force rising to the level of abuse. See A.R.S.

§ 13-403(1) (2010). What a parent cannot do, however, is use force that 

would result in physical injury.
ROBERT A. v. DCS, R.A.

Decision of the Court

10

physical abuse. However, close review of the record shows DCS failed to 

present sufficient evidence that R.A. or, for that matter, any child would be 

at risk in Father’s household. While a DCS caseworker opined that if V.C. 

and C.C. were removed from the house Father would likely become abusive 

with R.A., these statements, at best, constituted mere speculation. Even 

taken at face value, the evidence concerning alleged past abuse of C.C. and 

V.C.—particularly in light of V.C.’s contradictory statements and C.C.’s 

refusal to “tell a lie”—is hardly compelling, let alone “more probable than 

not.” See Kent K., 210 Ariz. at 284, ¶ 25. While it is generally true that the 

juvenile court is in the best position to evaluate witness credibility, an 

appellate court must still review that evidence and determine whether DCS 

has met its burden of proof, particularly as it relates to the issue of child 

safety, which is the most important factor in whether to impose or extend a 

finding of dependency. Even applying that deferential standard, we find 

DCS’ proof insufficient to meet its burden.11

¶23 Here, Father has already successfully completed many of the 

services and classes DCS has recommended, and a DCS caseworker who 

observed the children and the parents interact in the home on multiple 

occasions recommended that the family be reunified. Finally, DCS 

presented no meaningful evidence to support its allegation by a 

preponderance of the evidence that any of the children would be at risk if

living with Father at home: there were no psychological reports concerning 

Father or Mother, or any of the children; no school records indicating that 

any of the children are traumatized or apprehensive in Father’s presence or 

care; and no indication that Father’s progress in pending services and 

instruction is anything other than completely satisfactory.

¶24 Thus, in this unusual setting, we find the juvenile court 

abused its discretion in finding by a preponderance of the evidence that

R.A. is dependent as to Father.

 

11 Although we have previously taken judicial notice that “there may 

be a psychology of abuse, that is to say, a parent who abuses one child is 

likely to abuse a second child[,]” we decline on this record to do so here. 

Cochise Cty. Juv. Action No. 5666-J, 133 Ariz. 157, 162 (1982).
ROBERT A. v. DCS, R.A.

Decision of the Court

11

CONCLUSION

¶25 The juvenile court’s order finding R.A. dependent as to Father

is reversed.