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Parents have no inherent legal right to question or cross examine their children at hearings to determine if the youngsters should be permanently removed from their home, the state Court of Appeals ruled Thursday.

In the first decision of its kind in Arizona, the judges said that parents have a “fundamental liberty interest” in the case, custody and management of their children. That clearly includes a hearing for a court to decide whether to sever parental rights.

But Judge Samuel Thumma, writing for the unanimous court, said the Department of Child Safety has a “compelling interest in protecting child welfare, including protecting the best interests of the children.” That, he said, includes any adverse impact on a child testifying as a witness, including psychological.

What that means, Thumma said, is DCS is legally entitled to ask a court to bar questioning from the parents or their lawyers to protect the children.

At that point, he said, the burden falls on the parents to prove they need to be able to question the children. Thumma said that could require a showing that there is no other way for the parents to make their case.

The bottom line, the judge wrote, is that right to cross-examine witnesses, a standard staple of any other court case, does not necessarily apply when the state is trying to take away a child.

“That weighing and balancing (of interests) may mean that parents do not have a due process right to call their children as witnesses to confront and cross-examine them about the children's prior statements admitted in evidence at a severance trial,” Thumma wrote.

Court records show the couple has two children. The youngsters, age 8 and 4 at the time, were taken into state custody in 2011 after the younger one was taken to a hospital, unconscious with various head and other injuries. At a hearing, a judge ruled the children were dependents of the state, rejecting the father's claim he was denied due process when the court blocked him from calling the other child at a witness.

DCS eventually moved to terminate parental rights. While the agency indicated it did not intend to call the children as witnesses, it said it did intend to use statements the children made to others.

The parents, in turn, said they wanted to call the children as witnesses to rebut those statements, arguing that was part of their due process rights.

Thumma, however, said it's not that black and white. He pointed out that trials to sever parental rights are civil and not criminal where the state and federal constitutions provide a right to confront witnesses. He said Arizona court rules require severance trial to be conducted informally — and that the court must consider the “best interests of the children.”

Thumma also pointed out that Arizona does allow hearsay evidence, including things like the report of a child welfare worker, as long as the person who prepared that report can be cross examined. He said that inherently means that there is no right to go beyond that welfare worker and question the children.

Despite that, the parents argued that they need to call the children to the stand so they can challenge the statements attributed to the youngsters by the caseworker.

But Thumma said that is not necessary. He said, for example, parents can question and cross-examine other witnesses, including those who prepared reports for DCS, about the statements attributed to the children.

Thursday's ruling does not end this dispute. Instead, it sends the case back to the trial judge where must provide information about what testimony it intends to present, at least indirectly, of what the children told others that the agency intends to present at trial.

At that point the parents must show their need for the testimony. And the court has to decide whether letting them testify would be in their best interests and, if the children are called, what restrictions should be placed on the questioning.

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