 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Matter of Appeal in Pima County Juvenile Severance Action No. S-1201716/30/1995
Opinion
DRUKE, Chief Judge.
The Arizona Department of Economic Security (DES) sought to sever the parental rights of both the father and mother of A. and T. on numerous grounds, including chronic abuse of alcohol, dangerous drugs, and controlled substances and out-of-home placement as to each child. The juvenile court granted the severance petition as to the father but dismissed it as to the mother. Both the father and DES have appealed. In this published portion of our decision, we address only DES's contention that the juvenile court erred in finding that the mother's ingestion of alcohol during pregnancy and the father's allowing it could not, as a matter of law, be the basis for severance on the ground of abuse or neglect under A.R.S. § 8-533(B)(2). The remaining issues presented by DES and by the father's appeal are resolved in a contemporaneously filed memorandum decision. We publish only this portion because only this portion meets the standards for publication set forth in Rule 28(b), Ariz. R. Civ. App. P., 17B A.R.S. See Fenn v. Fenn , 174 Ariz. 84, 847 P.2d 129 (App. 1993). It is undisputed that A. and T. were harmed by the mother's ingestion of alcohol during pregnancy. T. suffers from fetal alcohol syndrome; A.'s condition is somewhat less severe but he also suffers some fetal alcohol effects. We agree with the juvenile court, however, that a "child" under the severance statute does not include a fetus. "Child" is defined in § 8-531(3) as "a person less than eighteen years of age." Although the statute does not define "person," we do not believe the legislature intended it to include a fetus for purposes of the severance statute. Consequently, the mother's ingestion of alcohol during pregnancy cannot be the basis for a finding of abuse under § 8-533(B)(2).
The Division One case of Vo v. Superior Court , 172 Ariz. 195, 836 P.2d 408 (App. 1992), is instructive in our analysis. The issue there was whether "person," defined as "a human being" in A.R.S. § 13-1101(3), included a fetus for purposes of Arizona's first-degree murder statute. In deciding that it did not, Division One noted that the legislature could have more broadly defined "person" to include a fetus as it did when it amended the manslaughter statute. Manslaughter includes "knowingly or recklessly causing the death of an unborn child . . . ." A.R.S. § 13-1103(A)(5). Similarly, the legislature could have broadened the definition of "child" under § 8-531(3) if it had intended to include a fetus.
Division One recently reiterated its Conclusion that "person" or "child" does not include unborn children in Reinesto v. Superior Court , ___ Ariz. ___, 894 P.2d 733 (App. 1995), a case more closely on point. There the court rejected the state's argument that it could prosecute a woman for child abuse under A.R.S. § 13-3623(B)(1) for "prenatal conduct that causes [a child] injury after [his or] her birth." Id. at ___, 894 P.2d at 735 (emphasis in original). The court reasoned that because "child" is defined under § 13-3623(A) as "an individual who is under eighteen years of age," and because the legislature did not include in that definition an unborn child, it intended to proscribe only "conduct that directly endangers a child, not . . . activity that affects a fetus and thereby ultimately harms the resulting child." Id.
Likewise, we do not believe that the sev
Page 1 2 3 4 Arizona Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|