Lemay v. Dcs ( 2022 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
ANDREW L. LEMAY, Appellant,
v.
DEPARTMENT OF CHILD SAFETY, Appellee.
No. 1 CA-CV 21-0484
FILED 10-06-2022
Appeal from the Superior Court in Maricopa County
No. LC2020-000285-001
The Honorable Daniel J. Kiley, Judge
AFFIRMED
APPEARANCES
Andrew LeMay, Litchfield Park
Appellant
Arizona Attorney General’s Office, Phoenix
By Emily M. Stokes
Counsel for Appellee
LEMAY v. DCS
Decision of the Court
MEMORANDUM DECISION
Judge D. Steven Williams delivered the decision of the court, in which
Presiding Judge David D. Weinzweig and Judge Randall M. Howe joined.
W I L L I A M S, Judge:
¶1 Andrew LeMay appeals the superior court’s order affirming
the Department of Child Safety’s (“DCS”) decision to place LeMay’s name
on its Central Registry (or “Registry”). For the following reasons, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 One June afternoon, LeMay drove one of his children to a pool
party. Another of LeMay’s children, eight-year-old Patrick,1 came along for
the car ride. Patrick was upset because he had not been invited to the party
and cried “for nearly an hour” before the three left their home. During the
car ride, Patrick “began a tantrum of yelling and spitting” and “took off his
shoe and threw it” at LeMay’s head.
¶3 LeMay stopped the car, removed Patrick, and placed him near
a tree, with his booster seat, on the side of a “busy” residential road. LeMay
told the child he was “in time out,” and to remain there, but that LeMay
would “be back in ten minutes.” It was 101 degrees outside. LeMay then
left and drove his other child to the party.
¶4 A passerby witnessed the incident and called the police. An
officer soon arrived and spoke with Patrick. The child was hesitant to leave
the spot where his father left him, but eventually relented and sat in the air-
conditioned patrol car at the officer’s request. Patrick told the officer his
home was within walking distance, and he knew his way home.
¶5 LeMay returned for Patrick seven minutes after police
received the passerby’s phone call, and five minutes after police arrived.
After some conversation, the officer issued LeMay a misdemeanor citation
for permitting the life, health, or morals of a minor to be imperiled by
neglect or abuse in violation of A.R.S. § 13-3619. The charge was later
amended to disorderly conduct in the municipal court, and ultimately
1 Patrick is a pseudonym used to protect the child’s identity.
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LEMAY v. DCS
Decision of the Court
dismissed as part of a deferred prosecution agreement between LeMay and
the prosecutor.
¶6 The police notified DCS of the incident, and DCS began its
own investigation. A DCS investigator interviewed LeMay’s wife and
children about the incident and their home life; and LeMay filled out a DCS
questionnaire. The investigator concluded the household presented no
current or impending danger to Patrick. Nevertheless, the investigator
determined that LeMay had neglected Patrick on that June afternoon. DCS
wrote to LeMay informing that its neglect finding was based on
LeMay’sleaving Patrick “alone and unattended on the side of the road . . .
near a busy street, thereby placing the child at unreasonable risk of harm
for injury, abduction, harm from a stranger, exposure and death.” DCS
further informed LeMay of its intention to place his name on the Central
Registry, a repository for substantiated reports of child abuse and neglect
that DCS is required to maintain. A.R.S. § 8-804(A).
¶7 LeMay timely appealed DCS’s neglect finding and requested
a hearing before the Office of Administrative Hearings (“OAH”). LeMay’s
hearing was held nearly one year later (six-months after LeMay’s criminal
charge in the municipal court was dismissed). At the hearing, only the DCS
investigator testified; LeMay did not. DCS argued that LeMay neglected
Patrick by “leaving the child on the side of the road and driving away.”
LeMay countered that DCS had not shown Patrick was ever in danger. The
administrative law judge (“ALJ”) agreed with DCS that probable cause
existed to sustain a finding of neglect and to place LeMay’s name on the
Registry.
¶8 After unsuccessfully appealing to the superior court, LeMay
now appeals to this court. We have jurisdiction under Article 6, Section 9,
of the Arizona Constitution and A.R.S. §§ 12-120.21 and -2101(A)(1).
DISCUSSION
¶9 LeMay raises two arguments: (1) DCS lacked “jurisdiction” to
place his name on the Central Registry; and (2) the procedures leading to
his placement on the Registry violated his constitutional due process rights.
LeMay does not, however, contend that the ALJ abused her discretion in
sustaining DCS’s underlying finding of neglect. See State v. Carver, 160 Ariz.
167, 175 (1989) (“Failure to argue a claim usually constitutes abandonment
and waiver of that claim.”). We address both of LeMay’s arguments.
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LEMAY v. DCS
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I. Jurisdiction
¶10 LeMay contends that “DCS lack[ed] subject matter and
personal jurisdiction” to place his name on the Registry. Subject matter
jurisdiction refers to “a court’s statutory or constitutional power to hear and
determine a particular type of case,” State v. Maldonado, 223 Ariz. 309, 311,
¶14 (2010) (emphasis added); and personal jurisdiction refers to “[a] court’s
power to bring a person into its adjudicative process,” see Jurisdiction,
Black’s Law Dictionary (11th ed. 2019) (emphasis added). Though framed
as a jurisdictional argument, we understand LeMay to challenge DCS’s
authority to do what it did.
¶11 Like all state agencies, DCS is a “creature of statute,” and it
may exercise the authority delegated by the legislature. See Facilitec v. Hibbs,
206 Ariz. 486, 488, ¶ 10 (2003).
¶12 The genesis of DCS’s authority is A.R.S. § 8-451. Among other
things, DCS is responsible for “[investigating] reports of abuse and
neglect.” § 8-451(B)(1). DCS must also “maintain a central registry of reports
of child abuse and neglect that are substantiated.” § 8-804(A). Before DCS
places an individual’s name on the Registry, it must notify the individual
of its intention to do so; and inform the accused of his or her right to request
a hearing. § 8-811(A). If, following an evidentiary hearing, the ALJ
determines that “probable cause exists to sustain [DCS’s] finding that the
[accused] abused or neglected the child,” the name and finding are entered
into the Registry. § 8-811(H), (K).
¶13 DCS followed that procedure here, and the ALJ sustained
DCS’s finding of neglect.
¶14 LeMay references a handful of other Title 8 statutes
contending that DCS was required to do something more than it did before
placing his name on the Registry. For example, he argues that because
Patrick was not found to be dependent under § 8-844(C), DCS exceeded its
authority in placing LeMay’s name on the Registry. But no dependency
action was ever brought against LeMay. And while a dependency finding
of neglect is one avenue which warrants an individual’s placement on the
Registry, see § 8-804(A), it is not the only avenue. Similarly, LeMay
references § 8-819 (requiring that a determination of neglect take into
consideration the drug/alcohol use of the parent) and § 8-807 (tying DCS’s
maintenance of information to receiving federal funds), but fails to explain
how these statutes restrict DCS’s authority to do what it did.
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¶15 LeMay further points to the Arizona Parents’ Bill of Rights
contending he “retains all fundamental parental rights” including the
“liberty to direct his child’s upbringing.” See A.R.S. § 1-601(A) (“The liberty
of parents to direct the upbringing, education, health care and mental
health of their children is a fundamental right.”). We agree. But DCS has
not petitioned the court to terminate LeMay’s parental rights, and he offers
no legal authority supporting his suggestion that placement on the Registry
deprives him of his fundamental right to parent. See ARCAP 13(a)(7)
(providing appellant must provide “citations of legal authorities . . . on
which the appellant relies.”). And LeMay’s passing reference to the
municipal court’s dismissal of his misdemeanor charge suggesting DCS
exceeded its authority fails for the same reason. See MacMillan v. Schwartz,
226 Ariz. 584, 591, ¶ 33 (App. 2011) (“Merely mentioning an argument in an
appellate opening brief is insufficient.”).
II. Due Process Violations
¶16 LeMay also contends that DCS and the OAH violated his
constitutional right to due process.
¶17 LeMay filed two motions to dismiss before the OAH; both
were denied. In those motions, LeMay argued that the relevant facts of his
case did not support a finding of neglect, but he never challenged that DCS
or the process itself denied him due process of law. Likewise, at the
administrative hearing, LeMay argued that DCS failed to meet its burden
of proving neglect, but never claimed DCS or the administrative hearing
process denied him due process. Not until LeMay appealed to the superior
court did he first raise a constitutional challenge. But by then, it was too
late.
¶18 Save for challenges to jurisdiction, the “failure to raise an
issue before an administrative tribunal precludes judicial review of that
issue on appeal . . . .” DeGroot v. Ariz. Racing Comm’n, 141 Ariz. 331, 340
(App. 1984); see also Neal v. City of Kingman, 169 Ariz. 133, 136-37 (1991).
Because LeMay did not raise the argument before the ALJ, he has waived it
on appeal.
III. Attorney’s Fees and Costs
¶19 Finally, LeMay requests attorney’s fees and costs. However,
self-represented litigants cannot recover attorney’s fees in Arizona. Munger
Chadwick, P.L.C. v. Farwest Dev. & Constr. Of the Sw., LLC, 235 Ariz. 125,
126-27, ¶ 5 (App. 2014). Further, because he is not the prevailing party on
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appeal, LeMay is not entitled to costs. See Doherty v. Leon, 249 Ariz. 515, 523,
¶ 24 (App. 2020).
CONCLUSION 2
¶20 For the forgoing reasons, we affirm the superior court’s order
upholding the ALJ’s decision.
AMY M. WOOD • Clerk of the Court
FILED: JT
2 LeMay filed two untimely supplemental briefs on August 23, 2022, and
September 19, 2022. Neither were considered and both are stricken from the
record.
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