Aaron W. v. Dcs ( 2019 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
AARON W., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, S.W., B.W., C.W., Appellees.
No. 1 CA-JV 19-0039
FILED 9-26-2019
Appeal from the Superior Court in Maricopa County
No. JD33765
The Honorable Michael D. Gordon, Judge
VACATED AND REMANDED
COUNSEL
Gillespie, Shields, Goldfarb, Taylor & Houk, Mesa
By DeeAn Gillespie Strub, Mark A. Sheilds, April Maxwell, and Kristina
Reeves (argued)
Counsel for Appellant
Arizona Attorney General’s Office, Phoenix
By JoAnn Falgout
Counsel for the Department of Child Services
Aaron W. v. DCS, et al.
Decision of the Court
MEMORANDUM DECISION
Judge Paul J. McMurdie delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Jennifer M. Perkins joined.
M c M U R D I E, Judge:
¶1 Aaron W. (“Father”) appeals the juvenile court’s order
adjudicating his three children dependent based on Father’s prior failure to
protect his children from exposure to substance abuse and domestic
violence while in their mother’s care. For the following reasons, we vacate
the juvenile court dependency order and remand to dismiss the
dependency.
FACTS AND PROCEDURAL BACKGROUND 1
¶2 Father and Sheila L. (“Mother”) are the parents of
twelve-year-old Serenity and eight-year-old twins Brooklyn and Cheyenne.
Mother, Father, and the children lived in Wyoming until 2015 when a
Wyoming court granted Mother sole legal and primary physical custody of
the children, and she then moved to Arizona. Father visited the children in
December 2015, and he continued to have telephone contact with them until
June 2016 when Mother changed her phone number.
THE FIRST DEPENDENCY PROCEEDINGS
¶3 On January 12, 2017, the police executed a search warrant for
kidnapping and armed robbery on Mother’s home, which she shared with
her boyfriend. The police found nine-year-old Serenity home alone sick
1 This case contains a lengthy record with conflicting accounts. We
defer to the juvenile court’s findings in the dependency order and resolve
other factual conflicts in favor of sustaining the juvenile court’s ruling, so
long as it is supported by reasonable evidence. See Alma S. v. DCS, 245 Ariz.
146, 151, ¶ 18 (2018); see also Minh T. v. ADES, 202 Ariz. 76, 78–79, ¶ 9 (App.
2001) (a finding that lacks “reasonable evidence” is erroneous). The
non-material facts are presented in the manner most supported by the
record. We did not consider evidence that the court specifically excluded
but ultimately admitted in a catchall voluminous exhibit (exhibit 130).
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from school and reported that she did not seem fearful of being home by
herself. The police described the house as dirty, and noted there were
loaded guns and drug paraphernalia within reach of the children. Mother
was located picking up the twins from school, and she appeared
intoxicated. The police notified the Department of Child Safety (“DCS”),
but DCS did not remove the children from the home at that time.
¶4 DCS interviewed the children on January 18, 2017. They
stated they were well-cared-for and denied any abuse. DCS reported that
Mother appeared to be meeting the basic needs of the children. Later that
evening, the children’s maternal grandfather (“Grandfather”) called Father
and told him that the police executed a search warrant on Mother’s home,
and he needed to come and get the children. Father immediately called the
police to conduct a welfare check and mentioned Mother had a substance
abuse history. The police visited Mother’s home and later informed Father
that Mother may have been intoxicated, but that they would take no further
action. After the welfare check, Mother called Father and he accused her of
relapsing. Mother stated that she would willingly take a drug test, but
Father was unconvinced. Nonetheless, Father did not pursue his suspicion.
¶5 On January 23, 2017, DCS interviewed Mother. Mother told
DCS that Father had a custody order in place in Wyoming without any
restrictions but that Father had not been involved with the children for a
year and a half. She admitted that domestic violence had occurred in her
home in Arizona and agreed to submit to a drug test, which came back
positive for methamphetamine. Nevertheless, the children remained in
Mother’s home. On January 30, 2017, three days after Mother failed to
attend a scheduled meeting with DCS, the agency took custody of the
children and placed them with Grandfather and his girlfriend Jodi
(collectively “Placement”). Without attempting to contact Father, DCS
petitioned for an out-of-home dependency on February 2, 2017, alleging
Father neglected the children by abandoning them.
¶6 On February 8, 2017, Grandfather notified Father that the
children were in his care. Father contacted DCS stating that he and his wife
were willing and able to care for the children and would like to be contacted
as soon as possible. The next day Father telephonically appeared at the
preliminary protective hearing where he denied the allegations in the
petition and the court scheduled a contested dependency trial for May 26,
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2017. DCS agreed to submit a request through the Interstate Compact on
the Placement of Children (“ICPC”) for possible placement with Father. 2
¶7 On February 10, 2017, DCS noted that Father again called
“frustrated and upset that his phone calls and emails to the manager and
supervisor had not been returned.” He stated he had joint custody of the
children, and he would like to have them transitioned into his care “as soon
as possible.” Father was unable to get in contact with either his
court-appointed attorney or the assigned DCS case manager. A different
case manager sent Father an introductory letter by mail on February 21,
2017, but before receiving the message Father contacted her to introduce
himself and coordinate moving the children into his care.
¶8 The case manager told Father that he would first need to
submit to drug testing, a background investigation, and the ICPC home
study evaluation. Father completed drug testing the next day—at his own
expense—and agreed to participate in the ICPC home study. Father was
cooperative to an extent, but he refused to participate in some services
because, as he was not accused of any wrongdoing, he felt the services did
not apply to him. Father’s attitude created tension between him and those
involved with the case.
¶9 One of the conflicts concerned Father’s state of residence for
the ICPC. Father reported that he and his wife lived in an apartment in
2 The ICPC facilitates cooperation between states in the placement and
monitoring of dependent children. See Ariz. Rev. Stat. § 8-548. In Donald W.
v. DCS, we held that an “ICPC is not required when evidence does not
support a dependency as to the out-of-state parent.” 247 Ariz. 9, 21 ¶ 38
(App. 2019). A growing number of states have concluded that the ICPC
does not apply to placement with a parent, holding that the ICPC
Regulations for placing a child with a parent “are invalid because they
impermissibly expand the scope of [the ICPC]” beyond the scope given by
the legislature. In re Emoni W., 48 A.3d 1, 10 (Conn. 2012); In re R.S., 2019
WL 4052316, at *5, n.15 (Md. Ct. Spec. App. Aug. 28, 2019) (“Lest there be
any confusion, our reading of the plain language of the ICPC, [‘placement
in foster care or as preliminary to a possible adoption,’] shows that it does
not apply to parental placements regardless of whether allegations of abuse
or neglect have been sustained as to the out-of-state parent . . . .”); see also
ICPC Regulations, American Public Human Services Association,
https://aphsa.org/OE/AAICPC/ICPC_Regulations.aspx (last visited
Sept. 18, 2019).
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Colorado close to his work and that he owned a larger home in Wyoming
that he was renting out. He told the case manager that he and his wife
would not renew their lease for the Colorado apartment as they planned to
move into his wife’s grandparent’s Colorado home to assist with caring for
her grandfather, who had Parkinson’s disease. Once the children were
returned to him, Father stated that they would all move into the larger
Wyoming home. The case manager informed him that if he intended to live
in Colorado “for less than a year, [DCS] would not request the ICPC until [he
was] completely moved in where [he] plan[ned] to remain.” (Emphasis
added.) Father explained that it was unreasonable to expect him to take on
the added expenses of moving and living in the larger home along with the
child support obligation he continued paying until the girls were in his care.
He asked DCS to submit the ICPC for Colorado and advised that after the
ICPC was complete, where the family lived “should not be the concern of
[DCS].”
¶10 Around the same time, Placement stopped facilitating video
calls with Father because Placement “was made to feel uncomfortable.”
This occurred after a call where Father told the girls that when he came to
pick them up, he would rent an RV for them to drive back home as “a fun
family trip.” Placement reported the conversation to DCS. When DCS
reported Placement’s concerns to Father, he indicated that he thought Jodi
was attempting to control what he was able to discuss with his daughters.
The case manager explained that DCS’s guidelines prohibited parents from
discussing the case with the children and advised that Placement “does not
have to take the responsibility to supervise contact between parents and
children.” She continued that because “it seems to have become a problem,”
DCS “is now requiring that all communication go through [DCS].” She
informed Father that he could “write letters to the children, addressed to
[DCS], and [she would] ensure that those letters g[ot] to the girls.” And she
“c[ould] request phone supervision on calls; however, that may take some
time to set up depending on our Case Aid (sic) schedules.” Father
responded:
I understand everything that you have put forth. While I
certainly disagree with points, it is clear that [DCS] is placed
in a position of absolute authority without regard to the rights
of parents or children. This appears to be more of a matter of
state legislation than it does with the decisions of the
department.
¶11 A month later, in April 2017, after multiple emails to the case
manager, Father reported that he was still not receiving phone call
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visitation. The case manager explained it was because the case aide did not
receive Father’s acknowledgment of the visitation guidelines, and he would
not receive visitations until he agreed. Father asserted that the court stated
he “was to have unsupervised visitation, and . . . did not include any
restrictions.” He believed that his “accepting of an agreement outside
th[ose] terms would simply add validation to [DCS’s] perceived authority
over the situation.” He stated that it was unacceptable for DCS to continue
to deny him “communication with the[] girls for no other reason than to
exercise [DCS’s] power over the children.” The case manager conferred
with the assistant attorney general, DCS’s counsel, who advised DCS had
to provide Father visitation unless the court ordered otherwise, and if
Father violated the guidelines, the case aide could end the visit. DCS agreed
to resume visitation.
¶12 On April 27, 2017, nine-year-old Serenity was hospitalized for
suicidal ideation. Father and his wife drove to Arizona to visit Serenity. The
hospital had released Serenity by the time they arrived, and the children
spent the weekend unsupervised with Father and his wife at a hotel without
incident. The case manager noted that DCS had no grounds for a
dependency with Father, and on May 17, 2017, DCS moved to dismiss the
petition stating that it had “done an investigation and is moving to dismiss
the dependency as to the Father.” DCS requested the court contact
Wyoming and establish jurisdiction for the court to modify the parent’s
custody order because DCS had “significant concern for the children’s
safety in the care and control of Mother.” 3 DCS asked that “[u]pon the
modification of the existing family court orders” the court issue “an order
dismissing the dependency petition in this matter” and “relieve
[DCS] . . . from further responsibility in this case effective May 26, 2017,
when Father [was to] appear[] in person to take custody of the children.”
¶13 Under the Uniform Child Custody Jurisdiction Enforcement
Act, Ariz. Rev. Stat. (“A.R.S.”) sections 25-1001 through -1067, Wyoming
relinquished jurisdiction to the juvenile court as requested. Father appeared
3 DCS later argued the court would be in violation of the ICPC if it
were to dismiss the dependency petition and modify the custody order.
Even before this court’s decision in Donald W., ICPC Regulations provided
the court could modify the order and return the children to Father without
an ICPC. See ICPC Regulation 3(b) (codified as Ariz. Admin. Code
§ R21-5-105(B)(4)) (the ICPC “does not apply in court cases
of . . . custody . . . pursuant to which or in situations where children are
being placed with parents”).
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in person for the scheduled trial date expecting to leave with the girls.
Instead, less than five hours before the scheduled trial, the children’s
guardian ad litem (“GAL”) filed an objection to DCS’s motion to dismiss.
The GAL stated she had significant concerns about Father’s ability to parent
and in her opinion, DCS had not done a thorough investigation concerning
Father’s suitability as a parent and had not yet disclosed the Colorado ICPC
home study. Additionally, although Father had an unsupervised overnight
visit with the children earlier in the month, the GAL said because the visit
was not monitored, “there is no record of how the father interacted with the
children.” With the objection, the GAL included an email from Jodi
expressing Placement’s concerns about Father and a DCS report that
indicated Serenity told the case manager that she did not want to live with
Father because she was afraid that she would not be able to see Mother, and
although Father denied it, “Placement reports that [Father] has stated this
on more than one occasion.”
¶14 The court denied DCS’s motion to dismiss, citing “the Court’s
concerns.” Because DCS declined to amend or continue to prosecute the
petition, the court substituted the GAL as the petitioner, continued the trial,
and granted leave for the GAL to file an amended petition. At the same
time, the court ordered DCS to provide Father a case aide for supervised
visits, a psychological evaluation, and parenting classes in Colorado.
¶15 The GAL filed an amended petition on June 2, 2017, alleging:
“The children are dependent . . . because the children are in need of proper
care and control and because they have no parent or guardian willing or
able to exercise such care and control.” As the factual basis, the petition
asserted: “Father is neglecting his children” by: (1) “failing to provide them
with the basic necessities of life,” including abandoning them; (2) failing to
protect them from Mother’s substance abuse and domestic violence by
failing to check on them or attempt to modify the custody order when he
was aware that Mother had a history with substance abuse; and
(3) “Father’s behavior toward [Serenity] places the children at risk for
emotional abuse.” On June 14, 2017, Colorado approved the ICPC
conditioned on Father submitting to a bonding assessment. The same day,
DCS put in a request to have Father scheduled for a psychological
evaluation.
¶16 The juvenile court rescheduled Father’s trial for August 2,
2017. But see Ariz. R.P. Juv. Ct. (“Rule”) 55(B) (the dependency adjudication
hearing must be completed within 90 days of service of the petition and may
only be continued beyond the prescribed time “upon a finding of
extraordinary circumstances”). While Father waited to receive an
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appointment for a psychological evaluation, he continued to be deprived of
his phone visitations. On June 16, 2017, Father, his wife, and his son—from
a previous marriage—were together waiting for a phone call from the girls,
but when the case aide arrived at the girls’ summer camp to place the call,
she was informed that Placement picked up the children 15 minutes before
the scheduled call. The case manager attempted to contact Placement, but
they did not answer. Father believed Placement was deliberately trying to
interfere because at that point the children had not been made available for
visitation for three consecutive weeks.
¶17 Although he was resistant to participate in services when
recommended by DCS, Father complied with court orders. Father
submitted a mental health assessment that was conducted on June 19;
Father and his wife both completed parenting classes on June 21; and Father
began counseling. He filed the documentation with the court on July 17,
2017, evidencing his completion of the tasks. To address the GAL’s concerns
concerning a “record of how the father interacted with the children,” Father
provided the case manager’s notes from a positive visit she supervised with
Father, his wife, his son, and the girls. Nevertheless, the court found the
children dependent in August 2017, finding that the GAL had proven by a
preponderance of the evidence that Father had failed to protect the children
and that he posed a risk of emotional abuse to the children. Father appealed.
¶18 In January 2018, this court vacated the August 2017 order
finding the children dependent as to Father. See Aaron W. v. DCS (“Aaron
I”), 1 CA-JV 17-0384, 2018 WL 615165 (Ariz. App. Jan. 30, 2018) (mem.
decision). The court held the juvenile court improperly permitted Mother
to leave the trial after Father declared his intention to call her as a witness,
violating his due-process rights. Id. at *3, ¶¶ 13–17. This court also held the
juvenile court erred by finding that the children were dependent as to
Father because of the risk of emotional abuse without testimony from a
medical doctor or psychologist as required for an emotional abuse finding
under A.R.S. § 8-201(2). Id. ¶ 12. We stated “a ‘concern’ about emotional
abuse is insufficient evidence under the statute.” Id.
¶19 Nonetheless, this court stated there was enough evidence for
the juvenile court to conclude that Father had failed to protect the children
from Mother’s behaviors described above. Aaron I, 2018 WL 615165, at *2–3,
¶¶ 10–11. The court rejected Father’s argument that because DCS had
assumed temporary physical custody of the children, any risk to them had
been resolved. Id. at *2, ¶ 10, n.4. We noted that the failure to protect giving
rise to a dependency action “need not be continuous or actively occurring
at the time of the adjudication hearing to support a finding of
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dependency . . . the substantiated and unresolved threat is sufficient.” Id.
(quoting Shella H. v. DCS, 239 Ariz. 47, 51, ¶ 16 (App. 2016)). Because
Mother’s rights to the children were still in place at that time, we concluded
that the juvenile court did not err by finding the threat of neglect
unresolved. This court remanded the case for a new trial consistent with its
decision.
THE SECOND DEPENDENCY PROCEEDINGS
¶20 On April 20, 2018, Mother was sentenced to ten years in
prison for armed robbery. Accordingly, she was no longer a potentially
viable placement for the children for the foreseeable future.
¶21 A series of procedural events caused significant delays of the
new trial. DCS replaced the GAL as the petitioner; Placement intervened;
and, eventually, the court scheduled a two-day dependency trial for
October 31 and November 1, 2018. On the first day of the new trial—21
months after the children were removed—Father moved to dismiss the risk
of emotional abuse allegation, arguing that DCS had not disclosed a
medical doctor or psychologist as required by Aaron I. Surprisingly, DCS
objected, claiming they lacked notice and urged the court to find the court
of appeals erred by holding that the juvenile court made a finding of
emotional abuse when, in fact, the juvenile court had found a dependency
based on a “risk for emotional abuse.” 4 The first day of the new trial was
spent almost entirely arguing over whether the juvenile court had to follow
the holding of the court of appeals. DCS maintained that despite this court’s
holding in the first appeal, a therapist’s testimony would suffice to prove
the risk of emotional harm. The juvenile court disagreed, but acquiesced
and permitted the petitioners to present “all the evidence they intended to
present” as an evidentiary proffer for any appeal. Father objected, claiming
that allowing the irrelevant evidence would cause another delay in an
already unduly delayed proceeding, thereby prejudicing the children’s
relationship with Father. See Joshua J. v. ADES, 230 Ariz. 417, 424, ¶ 24 (App.
4 The position taken by DCS is not supported by the record. This court
specifically noted what the juvenile court found in its previous order. See
Aaron I, 2018 WL 615165, at *1, ¶ 5 (“A contested dependency hearing was
held on August 2, 2017, after which the superior court found the GAL had
proven the grounds of failure to protect and risk of emotional abuse by a
preponderance of the evidence.” (emphasis added)).
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2012). The court denied Father’s motion and continued the trial. The
evidentiary proceedings did not conclude until December 21, 2018.
¶22 The case manager testified that she had been concerned with
Father’s behavior early on and that Colorado verbally expressed concerns
about Father’s mental health “[b]y a phone call [and that she did] not have
anything in writing.” She stated her “concerns were his tendency to
threaten individuals that were, you know, associated with the case. He
made allegations against Placement with no proof, just allegations, and you
know, basic threats. He was also, as per our case aide’s records, generally
inappropriate when talking to the girls.” When asked to elaborate, the case
manager stated that the prior case aide reported “while there was nothing
specific, there were no cuss words, there were no, you know, specific you’re
a horrible person kind of statements, nothing like that, that the tone he
would take, . . . and that it was just, in her words, off of what she would
expect between a parent and children.” The case manager additionally
testified that when Serenity was hospitalized, she reported to the
psychiatrist there that it was because of people making negative comments
about Mother. Although Serenity had not alleged Father had made the
statements, the case manager testified that Father had made derogatory
statements about Mother to her, and she said that “the case aides ha[d]
reported that he ha[d] made statements.” The case manager was unable to
testify to any events beyond January 2018, nearly a year before the
dependency hearing, when she was removed from the case.
¶23 The girls’ therapist testified that she had seen the girls weekly
since January 2018. She stated the therapy sessions would sometimes
include Jodi, but she had never spoken to the girls’ parents. She testified
that the girls had “bonding and attachment issues” that, if not adequately
treated, placed the children at risk for substance abuse, criminal activity,
poor behaviors, joblessness, and instability. She agreed that witnessing
domestic violence and substance abuse would not be suitable for the
children. However, she admitted that she did not “have any interaction or
knowledge of [Father] directly.”
¶24 Most of the therapist’s testimony was regarding Serenity. The
only testimony the therapist was able to provide concerning Serenity’s
relationship with Father was that “Serenity has described him as being
mean,” but she would not elaborate. She later testified: “I know [Serenity]
has talked about him saying just negative things about [Mother] and the
things she has done. But I don’t recall specifics.” She testified that it was her
understanding that it was the reason Serenity would no longer speak with
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her Father. The therapist stated that she could not speak to whether it
would be harmful to place Serenity in Father’s care.
¶25 Dr. Daniel B. Juliano conducted a psychological assessment in
June 2018 and testified about his report. He felt that he had inadequate
information for a proper assessment, and he did not feel it would be
appropriate for him to provide an addendum with the additional
information he had been given since, or even to conduct another evaluation
on this case, for “a number of reasons.” Although he submitted his report
to DCS and spoke to the assistant attorney general three days after the
assessment, he testified that both Father and his attorney contacted him
stating that DCS had not disclosed the report and they wondered why he
had not completed the evaluation.
¶26 Dr. Juliano testified that “this process has been so distorted
and contorted that I really don’t see myself as a value.” He testified that
because of the “severe” behavioral issues reported in the December 2017
DCS Report, he “was very confrontive with [Father] on the issues of
concern” and “with me, you know, he was able to manage himself quite
well. . . . I was worried about whether he had an anger problem, and I did
feel an obligation to see if—with confrontations, just how he would handle,
and he was able to get through it.”
¶27 Dr. Juliano thought his limited background information was
“an issue.” Dr. Juliano testified that what Father asserted was “fairly
dramatic” and he wanted further supporting documentation. DCS did not
provide Dr. Juliano with any of the favorable information that Father
previously provided to the agency. When confronted with the favorable
information, the doctor testified that if Father’s reported accomplishments
“turned out to be validated, that would suggest that there’s probably less
of a serious mental health issue than what most people were
hypothesizing.” Rather than post-evaluation consideration, “[w]hat [the
doctor] would have liked was to have the information when [he] saw him.”
Because Dr. Juliano did not feel that he had the appropriate information to
evaluate Father properly, much of his testimony was based on speculation,
which he continuously mentioned “[he] was uncomfortable with.”
¶28 The court took the matter under advisement and issued its
ruling on January 23, 2019—two years after DCS removed the children. The
court ruled that the children were dependent concerning Father due to
Father’s failure to protect the children from Mother’s bad behavior while in
Arizona. Father filed a timely notice of appeal, and we have jurisdiction
under A.R.S. § 8-235(A) and Rule 103(A).
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DISCUSSION
¶29 A child is not entitled to a perfect parent or even a good one.
What a child is entitled to is a parent that does not “engage in conduct that
is unlawful or to abuse or neglect a child in violation of the laws of this
state.” A.R.S. § 1-602(B). We recognize that a parent “has an inalienable
right to parent [his or her] child without obstruction or interference from
this state.” Donald W., 247 Ariz. at 21, ¶ 36 (quotations omitted) (citing
A.R.S. § 1-602(A), (D)). But, the State also “has an interest in the welfare and
health of children,” and “[i]f the interest of the state is great enough—that
is, if the welfare of the child is seriously jeopardized—the state may act and
invade the rights of the parent and the family.” Cochise County Juv. Action
No. 5666-J, 133 Ariz. 157, 161, (1982) (citations omitted) (emphasis added).
¶30 A child is dependent and a ward of the State, when the
petitioner can prove one of the grounds in A.R.S. § 8-201(15)(a). “[T]he
juvenile court must consider the circumstances as they exist at the time of
the dependency adjudication hearing in determining whether a child is a
dependent child.” Shella H., 239 Ariz. at 48, ¶ 1. We review the court’s
interpretation and application of the dependency statute de novo. Carolina
H. v. ADES, 232 Ariz. 569, 571, ¶ 5 (App. 2013). “All reasonable inferences
must be taken in favor of supporting the findings of the trial court, and if
there is any evidence to support the judgment, it must be affirmed.”
Maricopa County, Juv. Action No. J-75482, 111 Ariz. 588, 591 (1975).
¶31 Here, insufficient evidence supports the court’s dependency
order. The petitioners failed to prove that the children lack a parent willing
and able to provide them with proper and effective parental care and
control (for brevity, “basic care”).
¶32 Before a child can be found dependent, the petitioner must
allege and prove by a preponderance of the evidence one of the grounds
found in A.R.S. § 8-201(15), which may include the fact that a child requires
basic care, but has no parent willing or able to provide it. Carolina H., 232
Ariz. at 571, ¶ 7; see A.R.S. § 8-201(15)(a)(i). “[T]he focus of this portion of
the statute is not on the conduct of the parents but rather the status of the
child.” Santa Cruz County Juv. Dependency Action Nos. JD-89-
006 & JD-89-007, 167 Ariz. 98, 102 (App. 1990).
¶33 A dependent child can also be defined as a child whose home
is unfit because of neglect, abuse, cruelty, or depravity of a parent. A.R.S.
§ 8-201(15)(a)(iii). When a parent’s conduct or behavior cannot be proven
improper in accordance with a subsection that provides for expressly
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prohibited behavior, we must be vigilant in ensuring that the basic care
provision in A.R.S. § 8-201(15)(a)(i) is not interpreted so broadly as to
capture conduct that may be subjectively improper or ineffective, but
adequate nonetheless. In JD-89-006 & JD-89-007, we held that the language
of the statute was not unconstitutionally vague because it “utilizes
commonly understood terms which give clear notice of the standard to be
applied in the adjudication proceeding.” 167 Ariz. at 102.
¶34 In this case, the petition alleged: “The children are
dependent . . . because the children are in need of proper care and control
and because they have no parent or guardian willing or able to exercise
such care and control.” The petition alleged: (1) Father is neglecting his
children by abandoning them; (2) Father is neglecting the children by
failing to protect them from exposure to substance abuse and domestic
violence in Mother’s home, which placed the children at risk of abuse or
neglect; and (3) Father’s behavior toward [Serenity] puts the children at risk
for emotional abuse.
¶35 When the juvenile court disallowed the petitioner to pursue
the “risk of emotional abuse” allegation without the evidence required by
Aaron I, the petitioners moved to stay the trial and requested permission for
leave to amend the petition. The court—mindful that the children had been
in DCS’s custody for 21 months—denied the motion to amend and refused
to delay the trial any longer. After the trial, the court found the petitioners
had proved only the failure to protect allegation.
A. A Dependency Relates to a Child’s Current Conditions, and an
Allegation of a Parent’s Prior Action is Only Relevant to the Extent
it Affects the Parent’s Ability to Currently Care for the Child.
¶36 The court found that Father failed to protect the children from
the previous exposure to bad behavior in Mother’s home. The court also
found that Father had reason to know that Mother had relapsed and failed
to take appropriate actions to protect the children from Mother’s neglect.
The court connected the past failure to the present conditions by finding
that Father was aware that Mother was violent and testified that she had
assaulted him on several occasions. The court found “the risk associated
with this type of neglect persists” because “Father’s experience as a
domestic-violence victim according to him, is neither isolated nor aberrant.
Absent intervention, the danger of it persisting is real. He reported to his
therapist that ‘every woman that I’ve been around is violent.’” The court
noted that “[w]hile there is no evidence that Father’s current wife poses
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Decision of the Court
those precise risks, he reported serious concerns about her mental health
including attention-seeking behavior and self-harming.”
¶37 Our caselaw supports using a parent’s prior failure to protect
as evidence of that parent’s continuing inability to provide basic care for a
child when the petitioner is able to prove that: (1) the conditions were
sufficient to declare the child dependent; (2) the threat giving rise to those
conditions remains unresolved; and (3) the threat continues to pose an
imminent risk of harm to the child. 5666-J, 133 Ariz. at 161 (speculative risk
is insufficient); Shella H., 239 Ariz. at 51, ¶ 16 (substantiated and unresolved
threat); Pima County Juv. Dependency Action No. 96290, 162 Ariz. 601, 604
(App. 1990) (imminent risk of harm). Here, as we noted in Aaron I, there
was sufficient evidence to support a finding that Father failed to protect the
children from behavior that would constitute a dependency regarding
Mother. However, at the time of the second dependency hearing,
petitioners failed to prove that the threat that Mother posed to the children
remained unresolved, or it continued to pose an imminent risk of harm to
the children.
¶38 While living with Mother, the children were exposed to
significant substance abuse and domestic violence—and Father had good
reason to know they were at risk and failed to protect them. However, on
April 20, 2018, Mother was sentenced to ten years in prison for armed
robbery. Mother’s behavior no longer poses a risk to the children, and given
the length of her prison term, the circumstance does not remain
“unresolved.” See Shella H., 239 Ariz. at 51, ¶ 16. The conditions at the
second dependency trial reflected that Father is a parent of the children,
and there is no threat that the children will be in Mother’s care. The juvenile
court’s speculative and attenuated possibility of some future harm is
insufficient to deprive Father of the care, custody, and control of his
children. Potential speculative harm does not reflect imminent harm. See
5666-J, 133 Ariz. at 161. The dependency finding on this basis is vacated for
lack of evidence.
B. This Court’s Previous Determination that Proving a Parent Poses a
Risk of Emotional Abuse to a Child Required Petitioners to
Present Evidence in Accordance with A.R.S. § 8-201(2) is Law of the
Case.
¶39 On remand, the petitioners expended hours arguing that the
court of appeals was wrong in Aaron I, and a doctor or psychologist is not
required to testify to the “risk of emotional abuse,” only for a diagnosis of
emotional abuse. In Aaron I, we stated:
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While the child safety specialist testified about “concerns” she
had with Father’s behavior and stated she had discussed the
issue with the Children’s therapist and a DCS staff
psychologist, no evidence was presented from either a
medical doctor or a psychologist which would support a
diagnosis of emotional abuse. Nor did the child safety
specialist testify to any specific findings or diagnosis given by
the staff psychologist which would track the statutory
definition under § 8-201(2). Concluding there was a
“concern” about emotional abuse is insufficient evidence
under the statute.
Aaron I, 2018 WL 615165, at *3, ¶ 12. Although the petitioners referred to
this portion of the decision as “dicta,” this court explicitly stated: “On
remand, the GAL may attempt to cure the lack of evidence on this issue.”
Id. at n.5. The court then remanded the case “for further proceedings
consistent with this decision.” Id. at *5, ¶ 22. Directing a party to comply
with a statutory requirement to eliminate a lack of evidence is not dicta. 5
¶40 No participant petitioned our supreme court to review the
decision in Aaron I, and the mandate issued on March 6, 2018. No
participant asserts there has been a change in the law after Aaron I.
Therefore, “law of the case” applies to the petitioners’ claim that there is a
different standard for risk of emotional abuse.
¶41 As applicable here, the term “law of the case” refers to a legal
doctrine providing that the decision of an appellate court finally resolves
the issues decided throughout all subsequent proceedings, both on remand
in the trial court and on a subsequent appeal, provided the facts, issues, and
evidence are substantially the same as those upon which the first decision
rested. Dancing Sunshines Lounge v. Indus. Comm’n, 149 Ariz. 480, 482 (1986).
As the juvenile court noted, the petitioner was proceeding on the same
5 “Judicial dictum” is a statement the court expressly declares to be a
guide for future conduct and is therefore considered authoritative and must
be followed. Resolution Trust Corp. v. Segel, 173 Ariz. 42, 45 (App. 1992).
“Obiter dictum,” on the other hand, is “[a] judicial comment made during
the course of delivering a judicial opinion, but one that is unnecessary to
the decision in the case and therefore not precedential (although it may be
considered persuasive).” Phelps Dodge Corp. v. Ariz. Dep’t. Water Res., 211
Ariz. 146, 152, ¶ 22, n.9 (App. 2005) (quoting Black’s Law Dictionary 490–91
(2d Pocket ed. 2001)).
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petition, the prior dependency order found the same allegation was proven,
and the court in Aaron I held it was error to proceed without expert
testimony. Based on the holding in Aaron I, the juvenile court correctly
ruled that the petitioners could not establish the risk of emotional abuse
allegation without the appropriate expert testimony.
CONCLUSION
¶42 Because reasonable evidence does not support a finding that
the children are dependent, we vacate the juvenile court’s dependency
order and remand for entry of dismissal. A.R.S. § 8-844(C)(2) (if the court
does not find the allegations in the petition are true, “the court shall dismiss
the petition”); see also Ariz. R.P. Juv. Ct. 55(E)(2)(after dismissing the
petition, the court must “return the child to the parent”). 6
AMY M. WOOD • Clerk of the Court
FILED: AA
6 Father also appeals the juvenile court’s order for his wife to complete
a psychological evaluation. The order is not a final appealable order.
Furthermore, given the disposition in this case, the issue is moot.
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