Luis S. v. Dcs ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
LUIS S., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, M.S., NAVAJO NATION, Appellees.
No. 1 CA-JV 21-0066
FILED 7-27-2021
Appeal from the Superior Court in Maricopa County
No. JD39969
The Honorable Sam J. Myers, Judge
AFFIRMED
COUNSEL
Thomas A. Vierling Attorney at Law, Phoenix
By Thomas A. Vierling
Counsel for Appellant
Arizona Attorney General’s Office, Phoenix
By Doriane F. Neaverth
Counsel for Appellee Department of Child Safety
Law Office of Ed Johnson, PLLC, Peoria
By Edward D. Johnson
Counsel for Appellee M.S.
LUIS S. v. DCS, et al.
Decision of the Court
MEMORANDUM DECISION
Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Cynthia J. Bailey and Judge Jennifer M. Perkins joined.
C R U Z, Judge:
¶1 Luis S. (“Father”) appeals from the superior court’s order
adjudicating his daughter M.S. a dependent child. Because M.S. is an
enrolled member of the Navajo Nation (“the Nation”), this matter is subject
to the Indian Child Welfare Act (“ICWA”), 25 United States Code (“U.S.C.”)
sections 1901 to 1963. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 M.S. was born in January 2006. When M.S. was about two
years old, Father was deported to Mexico. After Father was deported, M.S.
saw him infrequently and had minimal phone contact with him.
¶3 In 2014 M.S.’s mother (“Mother”) died. After Mother’s death
M.S. went to live with her maternal grandmother and then with her adult
half-sister, who is also a member of the Navajo Nation. The sister tried to
obtain guardianship of M.S., but Father objected. He sought to have M.S.
placed with his parents in Tucson. Fifteen-year-old M.S. did not want to
live with her grandparents in Tucson because she did not know them well
and the grandparents exclusively speak Spanish—M.S. did not speak or
understand Spanish. M.S. wanted to remain in the care of her sister. She
did not want to live with Father in Mexico because she was unfamiliar with
the culture and did not have a good relationship or bond with Father.
¶4 The superior court appointed a guardian ad litem (“GAL”) for
M.S. in the guardianship matter, and the GAL filed a private dependency
petition. The petition alleged that Father had neglected M.S. by failing to
meet her needs and not providing her with support for twelve years. The
petition further alleged that Father had only a few in-person visits with M.S.
since he was deported and that the contacts he had with her via a messaging
application frequently ended with Father verbally abusing M.S. Finally, the
petition alleged that M.S. was dependent due to domestic violence because
Father engaged in domestic violence with Mother, leading to the breakup
of the family.
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LUIS S. v. DCS, et al.
Decision of the Court
¶5 The superior court ordered the Department of Child Safety
(“DCS”) to conduct an investigation, and it did so. DCS interviewed Father,
who indicated he was not requesting reunification with M.S. but was
instead seeking to have M.S. placed with his parents. Father did not request
reunification services. Nevertheless, DCS set a case plan of reunification
and provided Father with a referral for supervised visitation. Visitation
occurred infrequently, however, because M.S. did not want to have contact
with Father.
¶6 DCS found the sister’s home to be appropriate, and it
reported to the court that Father had not parented or provided support for
M.S. since she was two years old. In addition, DCS learned that Father had
recently verbally abused M.S., calling her “stupid” and “fragile,” and
telling her that she should get a DNA test because if she was not his
daughter she could “fuck off.”
¶7 Father contested the dependency petition, and the superior
court held a dependency adjudication hearing. DCS, the Nation, and M.S.
agreed that the superior court should grant the GAL’s dependency petition
and that M.S. should remain placed with her sister. M.S. told the court she
would consent to a guardianship with the sister as her guardian. The court
adjudicated M.S. dependent and changed the case plan to guardianship. It
found that M.S. was dependent due to Father’s failure to provide support
for M.S. over an extended period of time, that continued custody of M.S. by
Father was likely to result in serious emotional or physical danger to her,
and that active efforts had been made to provide remedial services and
rehabilitative programs designed to prevent the breakup of the Indian
family and those efforts were unsuccessful. See 25 U.S.C. § 1912(d), (e). The
court found that the domestic violence allegation had not been proven.
Father timely appealed, and we have jurisdiction pursuant to Arizona
Revised Statutes (“A.R.S.”) sections 8-235(A), 12-2101(A)(1), and 12-
120.21(A)(1).
DISCUSSION
¶8 Father argues insufficient evidence supported the
dependency adjudication. He argues there was “no evidence” that he was
an unfit parent, that living with him in Mexico was contrary to M.S.’s
welfare, or that he neglected or abandoned her. Father also argues no
reasonable evidence supported the superior court’s ICWA findings.
¶9 A dependent child includes one “[i]n need of proper and
effective parental care and control . . . who . . . has no parent or guardian
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LUIS S. v. DCS, et al.
Decision of the Court
willing to exercise or capable of exercising such care and control,” or one
“whose home is unfit by reason of abuse, neglect, cruelty or depravity by a
parent.” A.R.S. § 8-201(15)(a)(i), (iii). Neglect includes “[t]he inability or
unwillingness of a parent . . . of a child to provide that child with
supervision, food, clothing, shelter or medical care if that inability or
unwillingness causes unreasonable risk of harm to the child’s health or
welfare.” A.R.S. § 8-201(25)(a).
¶10 The allegations in a dependency petition must be proven by a
preponderance of the evidence. A.R.S. § 8-844(C). 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). Because the primary consideration in a
dependency proceeding is the best interests of the child, the superior court
“is vested with a great deal of discretion.” Willie G., 211 Ariz. at 235, ¶ 21
(citation and internal quotation marks omitted).
¶11 Here, the dependency petition alleged that Father had
neglected M.S. by failing to meet her needs since she was two years old.
The superior court found that M.S. was dependent due to Father’s failure
to provide support for M.S. over an extended period of time, that custody
of M.S. by Father was likely to result in serious emotional or physical
danger to her, and that active efforts had been made to provide remedial
services and rehabilitative programs designed to prevent the breakup of the
Indian family and those efforts were unsuccessful. See 25 U.S.C. § 1912(d),
(e).
¶12 Reasonable evidence supported the superior court’s
dependency and ICWA findings. Father testified that he had not physically
parented M.S. since she was two years old. Father had not seen M.S. in
person since 2019. At that time, Father gave M.S. $20 “because [he] couldn’t
offer her more.” Father testified that he had not provided M.S. with money
for housing or food, and that it was the responsibility of whoever was
taking care of M.S. to meet her needs. Father agreed that living with him
could impact M.S.’s emotional well-being, but nevertheless testified that
fifteen-year-old M.S. was not old enough to decide where she lived.
Father’s testimony at the dependency adjudication hearing established that
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LUIS S. v. DCS, et al.
Decision of the Court
he had neglected M.S. for most of her life and was continuing to neglect her.
¶13 In addition, DCS case manager Michael Carrillo testified that
Father had not supported M.S. financially or emotionally since Mother
died. He testified that returning M.S. to Father would cause her emotional
trauma due to her lack of a bond with Father. The Nation’s qualified ICWA
expert, Cassandra Gorman, testified that based on the particular facts of this
case, DCS made active efforts to provide remedial efforts and rehabilitative
programs designed to prevent the breakup of the Indian family. Further,
Gorman testified that any effort to reunify M.S. and Father would be
unsuccessful and likely result in serious emotional or physical damage to
M.S. Gorman’s “worst fear” was that M.S. would run away if placed with
Father.
¶14 Father argues that DCS provided “no services” to prevent the
breakup of the Indian family. DCS contends he waived this argument by
failing to raise the issue before the dependency adjudication hearing. See
Shawanee S. v. Ariz. Dep’t of Econ. Sec., 234 Ariz. 174, 178-79, ¶¶ 16-18 (App.
2014) (any claim that DCS is failing to provide appropriate reunification
services must be timely raised in the superior court or the issue is waived).
When DCS became involved in the case Father indicated he did not seek to
reunify with M.S. and did not need reunification services. And thereafter,
he did not raise any issue in the superior court concerning reunification
services. Even if Father did not waive his argument about active efforts, the
superior court did not err by basing its active efforts finding on the Nation’s
ICWA expert’s testimony that DCS made active efforts based on the
particular circumstances of this case.
CONCLUSION
¶15 For the foregoing reasons, we affirm the superior court’s
order adjudicating M.S. dependent.
AMY M. WOOD • Clerk of the Court
FILED: AA
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