Jamelle A. v. Dcs, M.A. ( 2021 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
JAMELLE A., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, M.A., Appellees.
No. 1 CA-JV 20-0411
FILED 5-20-2021
Appeal from the Superior Court in Maricopa County
No. JD533495
The Honorable Jeffrey A. Rueter, Judge
AFFIRMED
COUNSEL
Vierling Law Offices, Phoenix
By Thomas A. Vierling
Counsel for Appellant
Arizona Attorney General’s Office, Tucson
By Autumn L. Spritzer
Counsel for Appellee Department of Child Safety
JAMELLE A. v. DCS, M.A.
Decision of the Court
MEMORANDUM DECISION
Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge Randall M. Howe joined.
C R U Z, Judge:
¶1 Jamelle A. (“Father”) appeals from the superior court’s order
adjudicating his son, M.A., a dependent child. Because M.A. is eligible for
enrollment in the Hopi Tribe (“the Tribe”), this matter is subject to the
Indian Child Welfare Act (“ICWA”), 25 United States Code sections 1901 to
1963. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 M.A. was born in January 2016. When M.A. was eight months
old, Father gained sole custody of him. M.A.’s mother, Jessica S., has not
been involved in his life since that time.1
¶3 In 2018 Father went to prison. Two consecutive relatives had
guardianship of M.A. while Father was incarcerated. Father was released
from prison in March 2020, and he petitioned to dissolve the guardianship.
The superior court ordered DCS to investigate and report whether M.A.
would be safe in Father’s care.
¶4 DCS investigated and reported it would be unsafe to return
M.A. to Father. At a hearing in July 2020, the superior court ordered DCS
to file a dependency petition. DCS filed a dependency petition alleging
neglect due to domestic violence and Father’s substance abuse and lack of
stable housing. DCS alleged that Father had been aggressive and unwilling
to cooperate with its investigation or its request that he submit to a drug
test.
¶5 DCS thereafter requested Father to participate in urinalysis
testing at Physician Services, Inc. (“PSI”), supervised visitation, substance-
abuse treatment, domestic violence classes, counseling with a domestic
violence component, and parent-aide services. In October and November
2020, Father failed to call in to PSI twenty times and missed two tests. He
1 Jessica S. entered a no contest plea regarding the allegations in the
dependency petition; she is not a party to this appeal.
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JAMELLE A. v. DCS, M.A.
Decision of the Court
tested positive for THC six times in August, September, and November.
Although he had a medical marijuana card, Father did not have a plan for
safely using marijuana and an understanding of how marijuana could
impact his parenting. Father completed an intake at TERROS but TERROS
closed out the referral because it did not recommend substance abuse
treatment. By the time of the dependency adjudication hearing in
December 2020, Father had been participating in counseling for about a
month but had not signed a release of information to allow DCS to look at
the records from those sessions. In addition, Father had completed a four-
hour domestic violence class and several parenting classes. Father
participated in supervised visitation with M.A. but ended visits early on
multiple occasions. Less than a month before the hearing, Father completed
an intake and began working with a parent aide to improve his parenting
skills.
¶6 At the dependency adjudication hearing the DCS case
manager testified that despite the services Father had completed so far,
domestic violence and anger issues continued to be a safety concern
because of Father’s behaviors as reported by service providers. For
example, at a visit with M.A. in October 2020, Father yelled at the case aide
after she told him to stop combing M.A.’s hair because it was making him
cry. Father asked M.A. if he was okay and even after M.A. said “no” Father
continued combing M.A.’s hair. Father lost control and began yelling that
he could do what he liked with his son. The case aide called her supervisor,
who overheard Father yelling at the case aide and told her to stop the visit.
Father also reportedly lost his temper and yelled at a PSI employee. Despite
these incidents, the case manager believed Father could overcome that
safety concern if he made progress in counseling. In addition, DCS was still
concerned about Father’s marijuana use because there was no safety plan
in place regarding Father’s use of marijuana with M.A. in the home. The
case manager explained:
[E]ven though medical marijuana is allowed . . . when a
parent is under the influence it’s still considered medicating
. . . it still impacts . . . parenting abilities. And it’s [DCS’s]
preference . . . that we ensure that the parents can still use the
medicine that they need, but that the child has a fully non-
medicated, non-under the influence adult available to
supervise and take care of the child’s needs as well.
The Tribe’s ICWA expert opined that returning M.A. to Father would not
be safe until he participated in additional services, and the Tribe proposed
that an in-home dependency was appropriate.
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JAMELLE A. v. DCS, M.A.
Decision of the Court
¶7 After the hearing, the superior court adjudicated M.A.
dependent. The court found DCS did not prove its allegation that M.A. was
dependent on the grounds that Father was unable to parent due to domestic
violence and unstable housing. However, the court found DCS had proved
by a preponderance of the evidence that M.A. was dependent because
Father was unable or unwilling to provide M.A. with proper and effective
parental control based on his marijuana use, his anger control issues, and a
deficiency in his parenting skills.
¶8 The court amended the allegations set forth in the
dependency petition to conform to the evidence presented pursuant to
Arizona Rule of Juvenile Procedure (“Rule”) 55(D)(3) and Arizona Rule of
Civil Procedure (“Civil Rule”) 15(b). The court granted Father’s Rule 59
motion for return of M.A., noting that Father was engaged in services
designed to address the safety concerns that resulted in the dependency.
The court ordered DCS to (1) make an immediate referral for a family
reunification team, (2) complete a safety plan regarding Father’s medical
marijuana, and (3) complete an inspection of Father’s home so it could
identify and rectify any safety risks.
¶9 Father timely appealed, and we have jurisdiction pursuant to
Arizona Revised Statutes (“A.R.S.”) sections 8-235(A), 12-2101(A), and 12-
120.21(A).
DISCUSSION
¶10 Father argues that “no evidence” supported the dependency,
the safety risks found by the court were mere “concerns,” and the evidence
showed he could safely parent M.A. We disagree.
¶11 We review the superior court’s order adjudicating a child
dependent for an abuse of discretion. Pima Cnty. Dependency Action No.
93511, 154 Ariz. 543, 546 (App. 1987). We view the evidence in the light
most favorable to sustaining the superior court’s findings and generally
will not reverse a dependency adjudication unless no reasonable evidence
supports it. Willie G. v. Ariz. Dep’t of Econ. Sec., 211 Ariz. 231, 235, ¶ 21 (App.
2005). The superior court “must determine whether a child is dependent
based upon the circumstances existing at the time of the adjudication
hearing.” Shella H. v. Dep’t of Child Safety, 239 Ariz. 47, 50, ¶ 12 (App. 2016).
The primary consideration in a dependency proceeding is the best interests
of the child. Michael M. v. Ariz. Dep’t of Econ. Sec., 217 Ariz. 230, 234, ¶ 17
(App. 2007).
¶12 Section 8-201(15)(a) provides in relevant part that a
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JAMELLE A. v. DCS, M.A.
Decision of the Court
“[d]ependent child” is a child who is adjudicated by the superior court to
be “[i]n need of proper and effective parental care and control and who . . .
has no parent or guardian willing to exercise or capable of exercising such
care and control.” A.R.S. § 8-201(15)(a)(i).
¶13 Here, the superior court found that Father was unable or
unwilling to provide M.A. with proper and effective care and control.
Reasonable evidence supported that determination. As the court noted,
Father had been incarcerated for approximately two years of four-year-old
M.A.’s life, and the evidence reflected concerns about Father’s parenting
skills and anger control issues despite his initial participation in services.
In addition, Father and his live-in girlfriend both had medical marijuana
cards and used marijuana without a safety plan for how marijuana would
be stored and how parenting would be handled when Father was under the
influence of marijuana.
¶14 The fact that the superior court granted Father’s motion for
return of M.A. does not mean insufficient evidence supported the
dependency, as Father suggests. The court’s Rule 59 finding that returning
M.A. to Father’s care would not create a substantial risk of harm to M.A.
was based on the facts that (1) Father was participating in services in the
context of this dependency, and (2) the court put into place protective
orders to mitigate the risk of harm to M.A. before his return to Father’s care,
including ordering DCS to inspect Father’s home to identify and rectify any
safety risks and to create a safety plan regarding medical marijuana.
¶15 Father next argues that the superior court erred in amending
the dependency petition to conform to the evidence presented at the
dependency adjudication hearing instead of dismissing the petition. He
argues the court improperly adjudicated M.A. dependent based on grounds
not alleged in the petition. Father notes the court amended the petition to
conform to the evidence on its own motion and relies on Carolina H. v.
Arizona Department of Economic Security, 232 Ariz. 569 (App. 2013), to argue
the superior court lacked discretion to amend the petition to include anger
issues and lack of parenting skills. We review the superior court’s decision
whether to amend a pleading for an abuse of discretion. Maricopa Cnty. Juv.
Action No. JS-501904, 180 Ariz. 348, 355 (App. 1994). “Due process requires
notice reasonably calculated, under all the circumstances, to apprise
interested parties of the pendency of the action and to afford them an
opportunity to present their objections.” Id. (citation and internal quotation
omitted). “[N]otice and substantial prejudice to the opposing party are
critical factors in determining whether an amendment should be granted.”
Id. (citation and internal quotation omitted).
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JAMELLE A. v. DCS, M.A.
Decision of the Court
¶16 Under A.R.S. § 8-844(C)(2), the superior court must dismiss a
dependency petition if it “[d]oes not find by a preponderance of the
evidence that the allegations contained in the petition are true.” Civil Rule
15(b), which is incorporated by Rule 55(D)(3), concerns amendments to
pleadings made during and after trial. Civil Rule 15(b)(1) applies when “at
trial, a party objects that evidence is not within the issues raised in the
pleadings.” In that case, the court may permit the pleadings to be amended
and should freely do so if it would “aid in presenting the merits and the
objecting party fails to satisfy the court that the evidence would unfairly
prejudice that party’s claim or defense on the merits.” Ariz. R. Civ. P.
15(b)(1). Civil Rule 15(b)(2) applies to issues tried by consent, and provides:
When an issue not raised by the pleadings is tried by the
parties’ express or implied consent, it must be treated in all
respects as if it had been raised in the pleadings. A party may
move—at any time, even after judgment—to amend the
pleadings to conform to the evidence and to raise an
unpleaded issue. But failure to amend does not affect the
result of the trial of that issue.
Ariz. R. Civ. P. 15(b)(2). “A variance between pleading and proof is waived,
when no objection thereto is clearly and specifically raised . . . in the trial
court.” Starkovich v. Noye, 111 Ariz. 347, 349 (1974) (citation and internal
quotation omitted). Here, Father made no objection in the superior court
that the evidence at the termination adjudication hearing was not within
the issues raised in the dependency petition. DCS presented evidence that
Father had anger issues and had treated M.A. inappropriately and yelled
during the October visit, as well as testimony from the DCS case manager
that Father still needed counseling to address his anger and needed to
continue to work with a parent aide to enhance his parenting skills. The
superior court made specific findings of fact in support of its conclusion
that M.A. was dependent because Father was unwilling or unable to
provide proper and effective parental control. Specifically, the court found
that Father’s anger issues, parenting skills, and marijuana usage without a
safety plan were still a concern at the time of the dependency adjudication
hearing. See Francine C. v. Dep’t of Child Safety, 249 Ariz. 289, 295, ¶ 12 (App.
2020) (superior court must make specific findings of fact in support of a
finding of dependency); Shella H., 239 Ariz. at 50, ¶ 12 (superior court must
determine whether a child is dependent based on the circumstances
existing at the adjudication hearing).
¶17 Although the court found that DCS had not met its burden of
proof regarding the allegations that M.A. was dependent because of
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JAMELLE A. v. DCS, M.A.
Decision of the Court
domestic violence and unstable housing, the court did not reject the
remainder of the allegations in the petition. Besides its allegations
concerning domestic violence and unstable housing, DCS alleged in the
petition that Father “presented as aggressive and unwilling to cooperate
with the DCS investigation,” and that he used marijuana at home. Because
the superior court found some of the allegations in the dependency petition
to be true, Father was not prejudiced and the superior court was not
required to dismiss the petition. Cf. Carolina H., 232 Ariz. at 571-72, ¶¶ 8-12
(reversing the superior court’s dependency finding after the court found a
dependency based solely on a theory not argued or raised at trial and
unrelated to the allegations in the dependency petition—that there was a
“substantial disconnect” between the mother and her child).
CONCLUSION
¶18 For the foregoing reasons, we affirm the superior court’s
decision finding M.A. dependent as to Father.
AMY M. WOOD • Clerk of the Court
FILED: AA
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