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UNDUE PROCESS?

Arizona Family Law attorneys know that the rules can change when children are involved. The standard courtroom and litigation procedures that most of us are familiar with from practice or television are designed for the typical situation, where each party is a mature, reasoning adult, usually represented by an attorney. There are exceptions in any area of the law of course, but Arizona Family and Juvenile Courts see more exceptions than most. A recent juvenile case illustrates how even the right to cross-examine witnesses has to sometimes take a back seat to the special concerns for a child's welfare.

Department of Child Safety v. Angel and Osanna B. (1 CA-SA 14-0058) is a special action case decided by the Arizona Court of Appeals last week about a case filed by the Department in Juvenile Court to terminate the parental rights of Angel and Osanna. The parents allegedly committed serious acts of child abuse against their two children, aged 7 and 11 and as part of the Department's investigation, the children were interviewed by social workers and other experts in order to present findings and recommendations to the court. The parents believed the children had been pressured to give false or misleading information to the investigators, however, and requested the right to call the children to testify and to cross-examine them.

The judge had a difficult decision to make. On the one hand, the right to cross-examine a person who has given evidence against you outside of court is one of the most fundamental parts of the justice system. The rules courts have adopted to restrict hearsay evidence were put in place partly to ensure that the court would rely only on evidence that had been tested. On the other hand, a courtroom is an intimidating place even for adults, so for a young, possibly abused child the situation can do real damage.

To try to protect both the children and the rights of the parents, the judge ordered that the children could be questioned, but it could only be outside the presence of the parents. The Court of Appeals decided this wasn't enough. The higher court determined that it was possible to use other methods to test the truth of the children's statements to the investigators without having them testify in court. The Court of Appeals also ruled that when this matter goes to trial again, the trial court must give greater weight to the question of whether it would be in the best interest of the children to testify, given the risk of emotional or psychological harm.

As this case demonstrates, juvenile cases often require sailing into uncharted legal waters, so the advice of an experienced navigator is extremely important. If you have a juvenile matter before the court, we encourage you to make a free appointment for a consultation with our experienced and compassionate attorneys.

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