Sabrina G. v. Dcs, A.W. ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
SABRINA G., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, A.W., Appellees.
No. 1 CA-JV 21-0189
FILED 11-23-2021
Appeal from the Superior Court in Maricopa County
No. JD40122
The Honorable Julie Ann Mata, Judge
AFFIRMED
COUNSEL
Vierling Law Offices, Phoenix
By Thomas A. Vierling
Counsel for Appellant
Arizona Attorney General’s Office, Mesa
By Amanda Adams
Counsel for Appellee
SABRINA G. v. DCS, A.W.
Decision of the Court
MEMORANDUM DECISION
Judge Brian Y. Furuya delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Michael J. Brown joined.
F U R U Y A, Judge:
¶1 Sabrina G. (“Mother”) appeals the superior court’s order
adjudicating her child dependent. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Mother and Reinaldo W. (“Father”) 1 are the parents of their
minor child, A.W. Mother and Father ended their romantic relationship
during Mother’s pregnancy, but Mother and Father arranged unsupervised
parenting time for Father to care for A.W. after his birth. On two such
occasions, Mother expressed concern after A.W. returned with facial
bruising from visiting Father. Father told Mother the marks were caused by
his dog. Mother photographed the injuries and continued to allow Father
to care for A.W. Mother began noticing A.W. display unusual behavior such
as leg twitching. Following an overnight visit with Father, where he
described the child as fussy and unwilling to sleep, A.W. began wheezing,
vomiting, eating less, and napping poorly. Mother called Father to tell him
A.W. was acting unusual.
¶3 The next morning, A.W. “seemed to be in a daze, tired, and
sick.” A.W.’s aunt came that afternoon to take him so Mother could work,
and within an hour urged Mother to take him to the hospital. Upon arriving
at the hospital, A.W. experienced seizures and respiratory failure. A CT
scan revealed brain swelling and bleeding from both a prior and recent
trauma. A.W.’s injuries required neurosurgical intervention, and further
delay could have led to death. The injuries also caused lasting medical
issues, including epileptic seizures and developmental delay.
¶4 A.W.’s treating physicians opined that his injuries raised
significant concerns of abusive head trauma. The Department of Child
Safety (“DCS”) took A.W. into temporary custody. DCS filed a petition to
find A.W. dependent as to Mother and Father for neglect and “abuse or
1 Father is not a party to this appeal.
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Decision of the Court
failure to protect from abuse.” The superior court held a contested
dependency hearing. The court heard testimony from the detective
handling a criminal investigation of the case and DCS’s ongoing case
worker. The caseworker testified Mother was fully engaged in, and on track
to, complete parent aide services—at which point DCS could refer her to a
family reunification team. However, the caseworker also testified A.W.
would remain at risk of abuse or neglect without DCS oversight until
Mother could complete her services.
¶5 The court found DCS had proven the allegations of abuse by
a preponderance of the evidence and adjudicated A.W. dependent as to
Mother and Father. Mother timely appealed and we have jurisdiction
pursuant to Arizona Revised Statutes (“A.R.S.”) § 8-235(A).
DISCUSSION
¶6 A child may be adjudicated dependent “whose home is unfit
by reason of abuse, neglect, cruelty or depravity by a parent, a guardian or
any other person having custody or care of the child.” A.R.S. § 8-
201(15)(a)(iii). The court must find a child dependent by a preponderance
of the evidence. Louis C. v. DCS, 237 Ariz. 484, 490, ¶ 23 (App. 2015). We
review a court’s dependency determination for an abuse of discretion, and
we will affirm unless no reasonable evidence supports the court’s findings.
Joelle M. v. DCS, 245 Ariz. 525, 527, ¶ 9 (App. 2018). We view the evidence
in the light most favorable to sustaining the court’s findings. Louis C., 237
Ariz. at 486, ¶ 2. We review the sufficiency of a court’s findings of fact de
novo as a mixed question of fact and law. Francine C. v. DCS, 249 Ariz. 289,
296, ¶ 14 (App. 2020).
¶7 Mother does not contest the court’s finding that Father abused
A.W. Rather, Mother contends the court’s dependency determination was
clearly erroneous because its findings are unsupported by reasonable
evidence and only addressed circumstances that existed prior to the time of
the adjudication hearing. While the court must make its dependency
determination based on the circumstances existing at the time of the
hearing, the court may consider prior events that create a substantiated and
unresolved threat to a child. Shella H. v. DCS, 239 Ariz. 47, 50–51, ¶¶ 12, 16
(App. 2016). For example, a child may be found dependent where their
parent has previously demonstrated an inability to protect the child from
the abuse of another parent. Id. at 50, ¶ 14. This prior inability to protect a
child may also be reasonable evidence of a parent’s continuing inability to
care for the child when: “(1) the prior conditions were sufficient to declare
the child dependent; (2) the threat giving rise to those conditions remains
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Decision of the Court
unresolved; and (3) the threat continues to pose an imminent risk of harm
to the child.” Francine C., 249 Ariz. at 299, ¶ 28.
¶8 In adjudicating A.W. dependent as to Mother, the court found
Mother had “fail[ed] to protect the child from physical abuse,” and this
finding is supported by the record. See A.R.S. § 8-201(2) (defining abuse to
include, in relevant part, “infliction or allowing of physical injury,
impairment of bodily function or disfigurement”).
¶9 Specifically, the court noted Mother took photos of A.W.’s
facial bruising “on two separate occasions after the child had a visit with
Father,” “continued to allow visitation that ultimately resulted in” two
brain hemorrhages that required surgery, and only took A.W. to the
hospital after A.W.’s aunt had noticed his condition within an hour of
caring for him. The court also found that “continuation in the home would
be contrary to the welfare of the child,” and trial testimony supports this
finding. The ongoing DCS caseworker testified A.W. would remain at risk
of abuse or neglect until Mother successfully completed her parent-aide
referral. And upon completion of the parent-aide referral, DCS planned for
Mother to receive training in specialized care for A.W.’s lasting medical
conditions. Construing the facts in the light most favorable to sustaining the
court’s dependency determination, reasonable evidence supports the
court’s finding of dependency, and Mother has not shown an abuse of
discretion. See Louis C., 237 Ariz. at 486, ¶ 2.
¶10 Mother also argues that the court made insufficient findings
of fact and conclusions of law in its dependency determination and ignored
her engagement in parent-aide services. Our legislature and supreme court
have established clear findings a superior court must make in determining
the dependency of a child to protect the fundamental rights of parents in
juvenile dependency proceedings. See A.R.S. § 8-844(C)(1)(a)(ii); Ariz. R.P.
Juv. Ct. 55(E). “The primary purpose for requiring a court to make express
findings of fact and conclusions of law is to allow the appellate court to
determine exactly which issues were decided and whether the lower court
correctly applied the law.” Ruben M. v. Ariz. Dep’t of Econ. Sec., 230 Ariz.
236, 239, ¶ 17 (App. 2012).
¶11 While the court must include the essential and determinative
facts upon which its conclusion was reached, the court need not detail every
fact that supports its ruling. Francine C., 249 Ariz. at 296, ¶ 14. We may also
infer that the court “made whatever additional findings are necessary to
sustain its judgment” so long as such findings “are reasonably supported
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Decision of the Court
by the evidence and do not conflict with any of the court’s express
findings.” Id. at 297, ¶ 19.
¶12 Here, the court’s findings are sufficient to allow appellate
review, see supra ¶¶ 2–5, 9. While the court did not make express findings
regarding Mother’s active engagement in services, the record reflects such
evidence was before the court. Accordingly, we may infer the court found—
despite Mother’s engagement—that the conditions leading to A.W.’s abuse
remained unresolved and posed a continued and imminent risk to A.W. See
Francine C., 249 Ariz. at 297, ¶ 19.
CONCLUSION
¶13 For the foregoing reasons, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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