Opinion
2 CA-JV 2023-0012
09-07-2023
In re Dependency of J.S.,
Cochise County Office of the Legal Advocate, Bisbee By Xochitl Orozco, Legal Advocate Counsel for Appellant. Kristin K. Mayes, Arizona Attorney General By Autumn Spritzer, Assistant Attorney General, Tucson Counsel for Appellee Department of Child Safety.
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. NOT FOR PUBLICATION See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f); Ariz. R. P. Juv. Ct. 602(i)(17).
Appeal from the Superior Court in Cochise County No. JD202200068 The Honorable John F. Kelliher Jr., Judge
Cochise County Office of the Legal Advocate, Bisbee By Xochitl Orozco, Legal Advocate Counsel for Appellant.
Kristin K. Mayes, Arizona Attorney General By Autumn Spritzer, Assistant Attorney General, Tucson Counsel for Appellee Department of Child Safety.
Judge Sklar authored the decision of the Court, in which Judge O'Neil and Judge Gard concurred.
MEMORANDUM DECISION
SKLAR, Judge.
¶1 Chasey J. appeals from the juvenile court's orders denying her motion to dismiss and adjudicating her son, J.S., born in April 2010, dependent. She argues that collateral estoppel precludes the current dependency and that the court erred by not giving full faith and credit to court orders from Oregon and Washington. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 We view the facts in the light most favorable to upholding the juvenile court's findings. See Willie G. v. Ariz. Dep't of Econ. Sec., 211 Ariz. 231, ¶ 21 (App. 2005). Chasey and Eric S. are the parents of J.S. Based on a 2013 decree of dissolution from Washington, Chasey was designated as J.S.'s custodian and was given primary parenting time. In April 2022, J.S. was removed from Chasey's care in Coos County, Oregon, based on allegations of physical abuse, including that Chasey had "whipped [J.S.] with a belt." J.S. was placed in foster care, and Chasey later admitted the allegations in an amended dependency petition. She specifically admitted she had used "inappropriate physical discipline."
¶3 In July 2022, the Oregon Department of Human Services (DHS) located Eric in Phoenix, Arizona. J.S. was ultimately placed with Eric. On October 13, 2022, the Oregon court dismissed the dependency because J.S. had "been placed with [Eric]" and there were "no safety threats to [J.S.] in [Eric]'s home." The court further noted that "[n]o party wanted to defend the petition with evidence and each supported or agreed that dismissal was legally appropriate." That same day, a DHS caseworker had a telephone conversation with Chasey, during which he explained that the dismissal was "based on [J.S.] being safe with Eric and not because [DHS] believe[s] she is safe."
¶4 Later that day, Chasey, who had moved to Sierra Vista during the Oregon dependency, traveled to Phoenix and picked up J.S. from Eric's home without Eric's knowledge. Later, when Eric discovered a note from J.S., Eric contacted the DHS caseworker, who advised him to contact local law enforcement. The Sierra Vista Police Department, however, would not help because Eric only had the Oregon dependency paperwork and nothing from Arizona showing he had custody of J.S.
¶5 On October 14, 2022, the DHS caseworker made a report to the Arizona Department of Child Safety (DCS) about the Oregon dependency and Chasey's removal of J.S. from Eric's home. When a DCS investigator contacted Chasey, she agreed to bring J.S. in to meet with the investigator, but only Chasey came to the meeting. Chasey agreed to another meeting three days later, but-after attempting to reschedule for various reasons-neither she nor J.S. showed up. That same day, the investigator sought and received a court order to remove J.S. from Chasey's home. DCS removed J.S. and placed him with Eric.
¶6 A few days later, DCS filed a dependency petition, alleging J.S. was dependent as to Chasey due to abuse and neglect. It also alleged that J.S. was dependent as to Eric due to Eric's failure to protect J.S. from Chasey. Eric entered a no contest plea, and he is not a party to this appeal.
¶7 As for Chasey, she filed in December 2022 a motion to dismiss the dependency based on issue preclusion. She argued DCS was relying "upon facts presented by the Oregon Department of Human Services to the dependency court in Coos County" but those allegations "were either fully litigated or the parties had a full and fair opportunity to litigate them" in Oregon. Because the "issue of abuse or neglect in the State of Oregon was already resolved," she reasoned that "all of the elements of the doctrine of issue preclusion are established." In response, DCS maintained Chasey had not "proven the elements of collateral estoppel" because "the Arizona dependency petition also rests on additional facts which occurred in Arizona, after the dismissal of the Oregon dependency." DCS also argued there was no final decision from the Oregon court, which had only dismissed that matter after determining that "[Eric] could parent [J.S.]"
¶8 Before the January 2023 dependency hearing, the juvenile court held a hearing with a Washington court pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act, A.R.S. §§ 25-1001 to 25-1067. Washington agreed that Arizona now has jurisdiction. At the dependency hearing the next day, the court denied Chasey's motion to dismiss. It explained, in part, that collateral estoppel did not apply because the previous issues in Oregon, although re-raised as part of the current dependency, were in addition to new circumstances that had occurred after the Oregon proceeding was dismissed. The court then heard testimony and argument as to the dependency and adjudicated J.S. dependent as to Chasey. This appeal followed.
ISSUE PRECLUSION
¶9 Chasey argues that because "the allegations in the dependency petition had already been handled by Oregon," they are "subject to the principles of issue preclusion." We review de novo the trial court's determination that issue preclusion is inapplicable. See Crosby-Garbotz v. Fell, 246 Ariz. 54, ¶ 9 (2019).
¶10 The common law doctrine of issue preclusion-sometimes called collateral estoppel-"precludes a party from 'relitigating an issue identical to one he has previously litigated to a determination on the merits in another action.'" Johnson v. O'Connor, 235 Ariz. 85, ¶ 20 (App. 2014) (quoting State ex rel. Winkleman v. Ariz. Navigable Stream Adjudication Comm'n, 224 Ariz. 230, ¶ 33 (App. 2010)). Although the parties focus on Arizona law concerning issue preclusion, we are required to look to the law of the jurisdiction that issued the original judgment. See Hancock v. O'Neil, 253 Ariz. 509, ¶ 11 (2022). We therefore look to the law in Oregon, which dismissed the prior dependency, to determine whether that dismissal has preclusive effect in Arizona.
¶11 Under Oregon law, a tribunal's decision on an issue precludes re-litigation of that issue in another proceeding if five requirements are met: (1) "[t]he issue in the two proceedings is identical"; (2) "[t]he issue was actually litigated and was essential to a final decision on the merits in the prior proceeding"; (3) "[t]he party sought to be precluded has had a full and fair opportunity to be heard on that issue"; (4) that party was "a party or was in privity with a party to the prior proceeding"; and (5) "[t]he prior proceeding was the type of proceeding to which this court will give preclusive effect." Nelson v. Emerald People's Util. Dist., 862 P.2d 1293, 1296-97 (Or. 1993). In addition, the court is required to "consider the fairness under all the circumstances of precluding a party." Duckworth v. Duckworth, 327 Or.App. 219, 249, ___ P.3d ___ (Ct. App. 2023) (quoting Minihan v. Stiglich, 311 P.3d 922, 931 (Or. Ct. App. 2013)).
¶12 Relating to the fifth element, Oregon law provides that "preclusion by former adjudication can apply in dependency cases." Matter of E. S. H., 473 P.3d 591, 600 (Or. Ct. App. 2020). However, Oregon courts will not apply issue preclusion where a subsequent dependency proceeding is based on "new substantial material facts." Id. at 601 (quoting Matter of Newman, 619 P.2d 901, 906 (Or. Ct. App. 1980)). Such new facts would negate multiple elements of issue preclusion, including the requirements that the two issues be identical and have been previously litigated. See id. (identifying additional evidence presented in subsequent dependency that had not been presented in prior case). In addition, Oregon case law cites policy considerations, including the paramount interests of a child's best interests and welfare, that "may negate strict adherence to the classic formula for application of issue preclusion." Id.
¶13 In this case, Chasey argues that the trial court improperly declined to apply issue preclusion. She maintains:
[T]he Oregon Department had a full opportunity to litigate and resolve their dependency petition and in fact, the dependency in Oregon lasted from April to October 2022. A final judgment was entered when the Oregon court dismissed the petition. Finally, the Oregon Department litigated this matter until it moved to dismiss and agreed, along with all other parties that dismissal was appropriate.In response, DCS argues that issue preclusion does not bar the current dependency because "none of the elements" have been satisfied.
¶14 We agree with DCS that issue preclusion does not apply here. First, the facts giving rise to the Oregon dependency were not actually litigated. In fact, the Oregon court dismissed the action because neither party wished to defend the petition. Second, even assuming the dismissal order were a final judgment, the facts at issue were not essential to that judgment. At best, the only fact embodied in the dismissal order was that there were no threats to J.S. given his placement with Eric.
¶15 In addition, "new substantial material facts" arose in Arizona after the Oregon dismissal order was entered. For example, despite the DHS caseworker telling Chasey that she should not pick up J.S. in Phoenix, Chasey did so the same day the Oregon dependency was dismissed. Chasey was uncooperative over the next several days, intentionally keeping J.S. away from the DCS investigator. Chasey also lied about enrolling J.S. in school in Sierra Vista. At the adjudication hearing, a DCS specialist described a visit in January 2023, during which Chasey had stated that if J.S. were to run away, she would not go after him. Chasey continued to minimize the physical abuse that had occurred in Oregon and blamed the children for her conduct. Both the DHS caseworker and DCS investigator testified Chasey had failed to make any behavioral changes since the Oregon dependency, such that J.S. remaining in her care would result in the same risks he was exposed to previously. Thus, under Newman, Oregon courts would not apply issue preclusion. This is especially true because the Arizona court was required to consider all the circumstances that existed at the time of the hearing. See Shella H. v. Dep't of Child Safety, 239 Ariz. 47, ¶ 12 (App. 2016). Thus, even new facts that arose between DCS's initial involvement in October 2022 and the dependency adjudication in January 2023 are relevant.
¶16 Finally, Chasey points to the fact that the evidence supporting the current dependency adjudication includes testimony and exhibits from the DHS caseworker concerning the Oregon proceeding. He testified about multiple incidents of physical abuse by Chasey toward J.S. and his half-sister and about Chasey's failure to provide J.S. with appropriate food and shelter. He described one incident, when J.S. was eleven, in which Chasey had "kicked both [children] out" of the home, and he was sleeping in a nearby park when strangers found him and offered to let him stay with them, which J.S. did "routinely over a period of months." The implication of Chasey's argument is that we may not consider these facts because they were addressed in the Oregon dependency. But as we have noted, nothing in the Oregon court's dismissal suggests an actual, necessary determination that the relevant incidents did not occur or were not proven.
¶17 At any rate, Oregon law characterizes Chasey's position as "clearly wrong." Newman, 619 P.2d at 905. In Newman, a father argued that in a second termination-of-parental-rights proceeding, the juvenile court could not consider evidence or facts that could have been considered in a prior proceeding where termination had been denied. Id. at 903-04. In rejecting that position, the court reasoned that termination proceedings generally involve "a continuing and cumulative set of circumstances." Id. at 904. Thus, courts must be required to consider prior facts in connection with the new ones. That is precisely what the juvenile court did here.
FULL FAITH AND CREDIT
¶18 Chasey also raises an argument under the United States Constitution's Full Faith and Credit Clause. She argues that in violation of that clause, DCS "did not agree with the way the Oregon Department had resolved the dependency of J.S. and therefore filed a dependency in Arizona alleging the basis for a dependency that had been dismissed in Oregon." She also argues that the juvenile court failed to give full faith and credit to "the Washington custody order and the Oregon dependency dismissal."
¶19 It is unclear whether Chasey intends her full-faith-and-credit argument to be distinct from her issue-preclusion argument or simply a restatement of it. Chasey did not raise full faith and credit until the January 2023 hearing. The juvenile court did not address it, and Chasey did not request separate findings on that issue. See Trantor v. Fredrikson, 179 Ariz. 299, 300 (1994) (because trial court and opposing counsel should have opportunity to correct asserted defects, absent extraordinary circumstances, errors not raised below cannot be raised on appeal). And as to the Washington custody order, she fails to meaningfully develop any argument. See Crystal E. v. Dep't of Child Safety, 241 Ariz. 576, ¶ 5 (App. 2017) (failure to develop argument on appeal results in abandonment and waiver). We therefore conclude that Chasey waived her full-faith-and-credit argument.
SUFFICIENCY OF THE EVIDENCE
¶20 Chasey also appears to challenge the sufficiency of the evidence to support the dependency adjudication. To the extent she is requesting that we reweigh the evidence, we will not do so. See Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, ¶ 4 (App. 2002). Instead, we review the record for reasonable evidence supporting the dependency adjudication. See Louis C. v. Dep't of Child Safety, 237 Ariz. 484, ¶ 12 (App. 2015). As described above, such evidence exists here. Accordingly, the juvenile court did not abuse its discretion in adjudicating J.S. dependent as to Chasey. See Shella H., 239 Ariz. 47, ¶ 13.
DISPOSITION
¶21 We affirm the juvenile court's order adjudicating J.S. dependent as to Chasey.