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COVID-19 Resources for Maricopa County, Arizona Attorneys

January 15, 2021 by Leave a Comment

resources-featuredAs we continue to deal with the cascading health and economic effects of the Coronavirus (COVID-19), we have compiled and are constantly updating a list of and links to Administrative Orders, Executive Orders and other resources helpful to attorneys practicing in Maricopa County, Arizona.   We will monitor new developments and try to keep the list updated.  Please let us know if you are aware of something that we should include.  In some cases, additional orders have been issued, but not yet uploaded to the Court and other government websites, so they are not yet included here.

Arizona Governor Ducey’s Executive Orders

Arizona Supreme Court Administrative Orders

Maricopa County, Arizona Superior Court Administrative Orders

Maricopa County, Arizona Superior Court Modified Department Operations 

NEW: Maricopa County Bar hosts Town Hall Webinars on COVID19 Court Operations

Register for upcoming Town Hall Webinars (links will be posted afterwards if you’re unable to attend)

UPDATED 4-1-20 Modified Criminal Department Operations (email Criminal Department) 602-506-8575

UPDATED 4-14-20 Modified Family Department Operations 602-506-1561

UPDATED 4-1-20 Modified Civil Department Operations 602-506-1497 (Phx) 602-506-2021 (Mesa)

UPDATED 4-1-20 Modified Lower Court/Administrative Appeals Operations 602-372-5851

UPDATED 4-1-20 Modified Tax Department Operations 602-506-3442

UPDATED 3-31-20 Modified Juvenile Department Operations 602-506-4533 (Phx) 602-506-2544 (Mesa)

UPDATED 3-31-20 Modified Probate Department Operations (email Probate Department) 602-506-3668

UPDATED 3-31-20 Modified Mental Health Department Operations (email Mental Health Department) 602-506-3668

3-31-20 Adult Probation Information and Directory (OFICINAS DEL DEPARTAMENTO DE RÉGIMEN A PRUEBA PARA ADULTOS)

3-31-20 Juvenile Probation Information and Directory (RÉGIMEN A PRUEBA PARA MENORES EN EL CONDADO DE MARICOPA)

Modified Service Operations 

Juror Information/Información Para Jurados 602-506-JURY (5879)

Law Library and Resource Center 602-506-7353

Maricopa County, Arizona Superior Court COVID-19 Information and Updates

National Resources

Guidance for Reopening

Guidance For Barbers And Cosmetologists

Guidance For Restaurants Providing Dine-In Services

Guidance For Retail

Other Resources

 

We hope that this list of COVID-19 (Coronavirus) resources Arizona attorneys is useful.  If you are aware of any other orders or information or COVID-19 resources that may be helpful to Arizona attorneys, please let us know.  And, please do not hesitate to contact us if you have any questions.

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Free to Leave: Interested Persons Pursuit of Financial Exploitation Claims

August 10, 2020 by Leave a Comment

Black and white photo of two people holding handsArizona’s Adult Protective Services Act, “APSA” for short, was adopted to expand the rights and claims to remedy abuse, neglect and financial exploitation of Arizona’s large population of vulnerable adults. Arizona courts are required to construe the statute broadly to protect vulnerable adults.  You can find a comprehensive discussion of financial exploitation claims here on our website.

In summary, there are four basic requirements to establish a claim for financial exploitation in Arizona pursuant to A.R.S. § 46-456(A):

  1. A person who is in a position of trust and confidence;
  2. To a vulnerable or incapacitated adult;
  3. Uses the vulnerable adult’s property for purposes other than the adult’s sole benefit; and
  4. There is no applicable exception that permitted the person in a position of trust and confidence to use the funds or other property other than for the vulnerable adult’s sole benefit.

There are many nuances to pursuing claims for financial exploitation.  One is the issue of “standing” – who may pursue a claim for financial exploitation? Read on to learn more!

Free to Leave: Interested Persons Pursuit of Financial Exploitation Claims

The Arizona Court of Appeals recently issued an opinion that clearly defines and provides direction to litigants and Arizona trial courts as to the determination of granting leave to interested persons to pursue a financial exploitation claim on behalf of a vulnerable adult or, if the vulnerable adult is deceased, the vulnerable adult’s estate. As a result of the Arizona Court of Appeals’ decision in In re Stephens Trust, — P.3d — (App. 2020), a trial court must grant a petition for leave when the petitioner demonstrates he/she is an interested person and that no one with a higher priority has or is likely to file a claim for financial exploitation on behalf of the vulnerable adult and/or their estate.

Who May Pursue Financial Exploitation Claims

Under A.R.S. § 46-456(G), the vulnerable adult, their conservator, or the personal representative of the vulnerable adults estate each have priority to pursue claims for financial exploitation. However, if “an action [for financial exploitation] is not filed by the vulnerable adult or the duly appointed conservator or personal representative of the vulnerable adult’s estate, any other interested person, as defined in section 14-1201, may petition the court for leave to file an action on behalf of the vulnerable adult or the vulnerable adult’s estate.”

Leave to Pursue Financial Exploitation Claim

One lingering question remained under subsection G of the statute for those desiring to petition a court for leave to pursue a financial exploitation claim – what must “any other interested person” prove in order for a court to grant permission to pursue a financial exploitation claim? The statute is silent on that issue.

In a matter of first impression, this question was addressed by the Arizona Court of Appeals in the recently published Stephens opinion. The appellant, Ms. Sona Heguy, filed a Petition for Leave to File Complaint of Financial Exploitation of a Vulnerable Adult (the “Petition”). Ms. Heguy filed the Petition to pursue a financial exploitation claim on behalf of her father Keith Stephens’ estate. Ms. Heguy was Mr. Stephens’ adult daughter, heir, and only surviving child from his first marriage.

Ms. Heguy attached a draft of the complaint to the Petition and in it, she alleged, among other things: Mr. Stephens suffered a stroke while vacationing abroad in 2011 and never fully physically recovered; Mr. Stephens was placed in a locked memory care unit at a senior living facility in 2013; several changes were subsequently made to a trust that included leaving his then-wife as sole trustee in 2014; and from 2014 through 2016, Mr. Stephens’ wife used trust funds to buy each of her children a home, fund European and Japanese vacations for her children, and pay off debts and other obligations of Ms. Heguy’s daughter.

The Pima County Superior Court denied the Petition. In doing so, the trial court ruled that Ms. Heguy “could not ultimately prevail on her claims” because the allegedly improper transactions were either authorized by Mr. Stephens’ trust or were for the benefit of his marital community and, thus, not actionable under A.R.S. § 46-456(A)(2) and (A)(4).

The Arizona Court of Appeals reversed the trial court’s decision, finding that the trial court’s denial of the Petition based upon the merits of the potential financial exploitation claim, and not whether Ms. Heguy was entitled to leave to pursue the same, was an abuse of  discretion.

The Court of Appeals conclusively established the “trial court’s proper role under § 46-456(G)” as follows:

[W]hen leave of court is sought to file a financial exploitation complaint, the court should determine whether the petitioner is an interested person under §§ 46-456(G) and 14-1201. If not, the court may summarily deny the petition…If the petitioner is an interested person under the statute, the court should determine whether another with priority to file an exploitation complaint—“the vulnerable adult or the duly appointed conservator or personal representative of the vulnerable adult’s estate”—has already filed or is likely to file such a complaint. § 46-456(G). If so, the court may summarily deny the petition. The court should not, as the trial court did here, address the merits of the proposed complaint; it should, solely for purposes of granting or denying leave to file the complaint under § 46-456(G), accept the factual allegations of the proposed complaint as true, and without regard to potential defenses.

(Internal citations omitted and emphasis added.)

So, under the simple standard set forth in Stephens, the Court’s role is limited to merely determining whether the petitioner is an “interested person” and, if so, whether anyone with priority has or will file the claim for exploitation.

A.R.S. § 14-1201(33) broadly provides that “’Interested person’ includes any trustee, heir, devisee, child, spouse, creditor, beneficiary, person holding a power of appointment and other person who has a property right in or claim against a trust estate or the estate of a decedent, ward or protected person. Interested person also includes a person who has priority for appointment as personal representative and other fiduciaries representing interested persons. Interested person, as the term relates to particular persons, may vary from time to time and must be determined according to the particular purposes of, and matter involved in, any proceeding.”

Effect on Litigation of Financial Exploitation Claims

Unfortunately, victims of financial exploitation are often unable to pursue financial exploitation claims on their own behalf as a result of any number of reasons, some which may include their own vulnerable condition, fear of retaliation by the wrongdoer, and/or because they have passed away before they could ever step foot inside of a courthouse. Further, and far too often, the alleged financial exploiter is the person who would otherwise have priority to pursue claims for financial exploitation (e.g., he/she is in a position to be and/or is actually acting as the vulnerable adult’s conservator or estate personal representative). Fortunately, with the Arizona Court of Appeal’s recent opinion in In re Stephenson Trust, vigilant individuals who qualify as “interested persons” now have a clear path to the eventual pursuit of financial exploitation claims on behalf of their loved ones.

If you have any questions about claims for financial exploitation of vulnerable adults in Arizona, please give us a call at 480.607.7900 or contact our office.

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Arizona’s Adult Protective Services Act Registry

July 31, 2020 by Leave a Comment

Arizona has a large population of vulnerable adults.  Arizona adopted the Adult Protective Services Act (“APSA”) in 1980.  The Arizona legislature has amended and supplemented APSA several times since.

The goal of APSA is to protect Arizona’s large population of vulnerable adults from abuse, neglect and financial exploitation.  In order to further the objective of protecting vulnerable adults, in 2006, Arizona added A.R.S. § 46-459, which provides for the Adult Protective Services Registry.

Pursuant to the law, the Arizona Department of Economic Security (the “Department” or “ADES”) is required to “maintain a registry of substantiated reports of abuse, neglect and exploitation of vulnerable adults made pursuant to § 46-458.”  “The registry shall contain the name and date of birth of the person determined to have abused, neglected or exploited a vulnerable adult, the nature of the allegation made and the date and description of the disposition of the allegation. The names of the vulnerable adult and reporting source shall not be reported to the registry.”  A.R.S. § 46-459(B).  The Department is required to maintain a report in the registry for 25 years.  The registry is a public record available on the Department’s website or by written request to the Department.

In order to protect the safety of children and vulnerable adults, the Department is required to conduct a background check on anyone applying to provide direct services to children or vulnerable adults, including to determine whether they are listed on the registry.

APSA provides due process to those accused of abuse, neglect or exploitation who ADES intends to list in the registry.  After completing an investigation into abuse, neglect and/or exploitation and finding that the allegations are substantiated, such that ADES intends to enter the incident into the registry, not more than 15 days after completing its investigation, the Department is required to notify the person.  The notice must state that “the department intends to enter a substantiated finding of abuse, neglect or exploitation in the registry and of that person’s right: 1. To receive a copy of the report containing the allegation and findings. 2. To a hearing before entry into the registry pursuant to § 46-459.”

Some of the issues that may arise at such a hearing were addressed in a recent Arizona Court of Appeals decision in Soto v. Arizona Department of Economic Security.

Soto v. Arizona Department of Economic Security

In this case, Stephen Soto appealed a superior court’s ruling upholding the ADES decision placing his name on the registry. Under A.R.S. § 12-910(E), a final administrative decision “shall be affirmed” unless the court concludes “the agency’s action is contrary to law, is not supported by substantial evidence, is arbitrary and capricious or is an abuse of discretion.”

The following is from the Court’s decision.  Soto lived with and cared for his 81-year-old father, a “vulnerable adult” who suffered from dementia and Parkinson’s disease. After returning home from a long day at work, Soto became frustrated with his father for not listening and having to change two soiled pairs of adult diapers. Soto punched his father’s shoulder to make him “behave,” and hit him on the head with a diaper. A “tussle” ensued when his father tried sitting on the bed and pushed Soto away. Soto then lost it and shoved his father, causing him to fall into a dresser, resulting in a gash on his forehead. Soto was arrested and charged with vulnerable adult abuse and assault under A.R.S. §§13-3623(B)(1) and 1203(A)(1). He later pled guilty to disorderly conduct. A.R.S. §13-2904(A)(1).

Following the incident, Police referred the incident to Adult Protective Services (“APS”), a division of ADES that investigates vulnerable adult abuse, neglect and financial exploitation. After the investigation, APS substantiated a claim of elder abuse, which was upheld by the Administrative Law Judge (“ALJ”) and adopted as the ADES’ final agency decision. Following APS’ claim, Soto’s name was placed on the Adult Protective Services Registry (“Registry”) as follows:

On or about December 22, 2017, STEPHEN CABRERA SOTO (date of birth 07/18/1966) abused a vulnerable adult by intentionally inflicting physical harm on the vulnerable adult. Specifically, while providing care for the vulnerable adult, Mr. Soto punched the vulnerable adult in the back, hit the vulnerable adult on the head with a soiled paper, and pushed the vulnerable adult, causing the vulnerable adult to fall, hit his head on a dresser, and sustain an approximately eight centimeter laceration on his forehead. Such conduct constitutes abuse pursuant to A.R.S. §46-451-(A)(1)(a).

Soto raised several issues in his appeal, arguing that his name should not be listed in the registry.

Hearsay

First, he argued APS improperly relied on hearsay evidence in the administrative proceedings based on the fact that the APS investigator merely “read from various reports,” including police and medical reports, “which were not generated by APS.” Under Arizona Rules of Evidence 801 and 802, hearsay is inadmissible unless an exception applies.  Rule 801(c) defines hearsay as

a statement that:

(1) the declarant does not make while testifying at the current trial or hearing and

(2) a party offers in evidence to prove the truth of the matter asserted in the statement.

(Emphasis added.)

Prior precedent, Weisler v. Prins, concluded that “reliable hearsay is admissible in administrative proceedings and may even be the only support for an administrative decision.” 167 Ariz. 223, 227 (App. 1990). Further, “a written statement from the reporting source may be admitted [at the hearing] if the time, content and circumstances of that statement are sufficiently indicative of its reliability.” A.R.S. §46-458(G)(4).  So, the court rejected Soto’s first argument because he provided no evidence that doubted the police or medical reports as unreliable.

Abuse

Second, Soto argued that the evidence did not prove he intended to physically harm his father, which is an element of abuse. Since APSA is a “statutory scheme that protects vulnerable adults,” courts construe it “broadly to effectuate the legislatures purpose.” In the instant case, APSA defines “abuse” as the “intentional infliction of physical harm.” A.R.S. § 46-451(A)(1)(a).

Soto admitted to paramedics and police officers that he had a “rough day” at work, was “getting frustrated,” ultimately “lost it” and “deserved to go to jail.” Soto also knew his father had recently fallen and injured himself. Previously, Soto testified to the ALJ that he pushed his father so he would not slip on feces or soil the bed. The ALJ rejected that version of events.

The court refused to second-guess that credibility determination because the ALJ is the sole arbiter of witness credibility. Mustard v. Indus. Comm’n, 164 Ariz. 320, 321 (App. 1990). In a tort context, “intent” is defined as knowing “the consequences are certain, or substantially certain, to result from his act.” Restatement (Second) of Torts § 8A cmt. b (1965). Therefore, the ALJ could infer from the circumstances that Soto knew his father would fall when pushed. The court held that substantial evidence supported the superior court’s and ADES’ conclusion of abuse.

Adult Protective Services Registry

Finally, Soto claimed that the Registry erroneously stated he committed three acts of abuse:

  • Soto punched the vulnerable adult in the back;
  • hit the vulnerable adult on the head with a soiled paper; and
  • pushed the vulnerable adult.

Rather, Soto believed only the push caused “physical harm” to his father causing a laceration on his forehead. Soto attempted to segregate his movement into three discrete acts as if in slow motion, but these movements occurred in rapid succession, forming an incidence of alleged abuse. Under APSA’s criminal counterpart, A.R.S. § 13-3623(B), the state may allege multiple acts that caused a single result and were part of a single criminal undertaking.

The court rejected Soto’s argument.  While the final push may have drawn blood, the movements could not be separated from one another for purposes of alleged elder abuse.

For the all the foregoing reasons, the Court of Appeals affirmed the ADES’ decision.

We are here to help

If you have any questions about abuse, neglect or exploitation of vulnerable adults in Arizona, please give us a call at 480.607.7900 or contact our office.

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Computer Generated Statements and the Hearsay Rules

July 25, 2020 by Leave a Comment

Hearsay Rule Defined

Under Arizona Rules of Evidence 801 and 802, hearsay is inadmissible unless an exception applies.  Rule 801(c) defines hearsay as

a statement that:

(1) the declarant does not make while testifying at the current trial or hearing and

(2) a party offers in evidence to prove the truth of the matter asserted in the statement.

(Emphasis added.)

Although relatively clear, to further define the rule, a “statement” is a “person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.” Ariz. R. Evid. 801(a).  A “declarant” is “the person who made the statement.” Ariz. R. Evid. 801(b).

Whether a statement is offered “to prove the truth of the matter asserted” is often misunderstood and has created much confusion.  In the context of probate and trust disputes, third-parties often are called testify about what the deceased will maker or trust maker told them.  Such testimony is often relevant to resolve ambiguities in the will or trust, or to determine whether the maker had mental capacity to adopt the will, trust, amendment or other governing instrument.

So, let’s say a friend is called to testify about what her deceased friend told her before he died: “You know, I’m really upset.  My son Johnny only calls me when he needs money.  He doesn’t really care about me.  So, after much thought, I’m going to disinherit him and leave my fortune to charity.”  If that testimony were offered to prove whether Johnny truly didn’t call his father unless he needed money and didn’t care about his father, then the statements would be for the truth of the matters asserted and would be inadmissible.   However, if there is a dispute about the validity of the document disinheriting Johnny, the statements would likely be relevant and admissible to prove dad’s state of mind or intent.  This may be a slight oversimplification.  But, we think you get the point.  Whether something is hearsay depends on the purpose for which the evidence  is offered.  Also, other rules, such as the so-called “Dead Man’s Statute” may affect the admissibility of evidence in a probate or trust dispute.

Under Arizona Rules of Evidence 801(a) and (b), the rule against hearsay applies to a “person’s” statements and “the person who made the statement.” However, the Rules do not define “person.”  So, are computer generated communications hearsay under the Rule?  That was the issue addressed in a recent Arizona Court of Appeals case, State v. Stuebe.

Computer Generated Statements and the Hearsay Rules

In Stuebe, the Court had to determine whether a machine that generates information could qualify as a “person” under the Arizona Rules of Evidence.  There, Jerry L. Stuebe was convicted of burglary and possession of burglary tools.

Before dawn one morning in February 2018, law enforcement responded to a 911 call from a security company concerning a silent alarm at a mostly vacant commercial property called Zanjero Falls West. Upon arrival, a law enforcement officer saw two individuals running toward an SUV. The officer stopped the vehicle as someone started to drive it away. Stuebe was a passenger in the SUV. Afterwards, officers retraced the SUV’s path and discovered two large bags containing copper wire. The officers also found a two-way radio, bolt cutters, a hacksaw, a flashlight, and other burglary tools. Triggered by a motion detector, a security camera at the property recorded the burglary.

At the commercial property, there was a motion-activated security camera that automatically recorded a video once a sensor was triggered. The system then produced an email and immediately sent it to the property manager. The email only contained the date, time, client ID, serial numbers, camera location code and language that read “Automated message- please do not reply to this address.”  At trial, the State attempted to introduce into evidence the automated email and video.   Stuebe objected.  The Superior Court overruled the objections and admitted the evidence.  Stuebe appealed.

Since there is no set definition of “person” in the Rules of Evidence, the Court of Appeals interpreted the word according to its common definition. Arizona’s “Dictionary Act” defines “person” as “a corporation, company, partnership, firm, association or society as well as a natural person.”  The definition does not include a computer or other machine.  Thus, the Court held that the email and video were not statements by a “person,” but were “machine produced.”  They were not made by a person and could not be classified as hearsay. Therefore, the evidence was admissible.  Thus, the Court of Appeals affirmed the Superior Court’s decision to admit the evidence.

How Will this Affect Litigation?

While Stuebe was decided in the context of a criminal case, the rules of evidence apply across most areas of the law and may have an effect in litigation involving probate, trusts or estates. Going forward, it will be unlikely machine-produced statements will be deemed inadmissible on a hearsay basis.  Rather, concerns about these statements can be addressed through the process of authentication – whether the email or video were altered or otherwise tampered with.  If you have any questions about this interesting issue, please let us know.

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Photo by Junior Gomes from FreeImages

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Kent Berk Appeared on Money Radio with Bob Roth on April 24, 2020

April 29, 2020 by Leave a Comment

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