In Re Dependency as to A.S. ( 2023 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
IN RE DEPENDENCY AS TO A.S.
No. 1 CA-JV 22-0283
FILED 5-25-2023
Appeal from the Superior Court in Maricopa County
No. JD534974
The Honorable Amanda M. Parker, Judge
AFFIRMED
COUNSEL
John L. Popilek PC, Scottsdale
By John L. Popilek
Counsel for Appellant
Arizona Attorney General’s Office, Mesa
By Amanda Adams
Counsel for Appellee Department of Child Safety
IN RE DEPENDENCY AS TO A.S.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Jennifer M. Perkins delivered the decision of the Court, in
which Judge Angela K. Paton and Judge D. Steven Williams joined.
P E R K I N S, Judge:
¶1 Maria S. (“Mother”) appeals the juvenile court’s order
adjudicating her daughter, A.S. (“Child”), dependent based on Child’s
behaviors and neglect. A.R.S. § 8-201(15)(a)(i), (iii). For the following
reasons, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Mother is the biological aunt and adoptive mother of Child,
born in 2005. Mother adopted Child as a single parent when Child was one
year old. She is married to Maurice S. (“Husband”), who is not Child’s legal
father.
¶3 Child has been diagnosed with asthma, attention-deficit
hyperactivity disorder (“ADHD”), oppositional defiant disorder, and
learning disabilities. She has had an individualized education plan (“IEP”)
in place since 2017 to address her emotional, behavioral, and learning
needs.
¶4 In December 2020, Child stole $550 worth of jewelry from
Mother. Mother reported the incident to law enforcement, and Child
admitted to the investigating officer that she stole the jewelry after an
argument with Mother and Husband. Mother declined to file charges but
no longer allowed Child to be in the home without supervision.
¶5 Child began running away from home in October 2021.
Mother was uncertain exactly how many times Child ran away, but it was
“excessive.” She filed at least four missing person reports for Child between
October 2021 and April 2022. One officer’s follow-up report described Child
as a “habitual runaway who does not listen to her mother and returns home
whenever she wants.” Mother eventually learned that Child often resided
with her friend, Blake (we use a pseudonym to protect the minor child’s
identity). Between October 2021 and August 2022, Mother contacted Blake’s
family twice to check on Child.
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IN RE DEPENDENCY AS TO A.S.
Decision of the Court
¶6 Approximately four months after Child started running
away, Mother and Husband moved into a two-bedroom apartment. Before
the move, Child had her own bedroom. But because Child began smoking
marijuana in her bedroom and stashed Mother and Husband’s personal
belongings there on occasion, Mother did not permit Child to have her own
room in the new apartment. She permitted Child to sleep in the same room
as her—while Husband slept in the other room—though Child elected to
sleep on the living room sofa. Mother stated that although Child had a
dresser for her clothes, she “refused to use it,” and kept her clothes around
the living room.
¶7 On August 25, 2022, the Department of Child Safety (“DCS”)
obtained temporary custody of Child after she reported conflict in the home
and feeling unwanted and unsupported by Mother and Husband. DCS
filed a dependency petition five days later. The petition, as summarized by
the juvenile court, focused on two categories of alleged neglect by Mother:
(1) locking Child out of the home with no plan in place for shelter or food,
and (2) failing to obtain medical and behavioral services for Child.
¶8 Specifically, DCS alleged Mother has an “extremely negative
perception” of Child and has not engaged in any services to address her
behavioral needs since Child began running away. DCS also alleged
Mother was not properly caring for Child’s asthma, and locked Child out
of the home if she missed her curfew. The juvenile court set a dependency
hearing, finding that, based on DCS’s allegations, it would be contrary to
Child’s welfare to remain in the home.
¶9 At the three-day contested dependency hearing, the court
heard testimony from Mother, Mother’s two biological sons, and the
Department’s investigative case manager. Though the court found
Mother’s sons to be credible, it concluded that their testimony “added little”
to its determinations because neither resided with Mother or Child during
the relevant time periods.
¶10 The court concluded it is more likely than not that Mother
failed to obtain proper behavioral and mental health services for Child. It
found that Mother’s only effort in seeking treatment for Child’s mental and
behavioral needs was attending a yearly IEP meeting at Child’s school. The
court ruled that Mother’s refusal to seek proper treatment for Child placed
her health and welfare at risk.
¶11 The court also concluded it is more likely than not that Child
was often locked out of the home with no plan in place for shelter. The court
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Decision of the Court
found it “very relevant” that Mother and Husband moved into a new
apartment after Child started running away and did not provide Child with
her own room at the new home. The court found it more likely than not that
Mother and Husband moved to this new residence “with no intention of
providing a home for [Child], and with no intention of seeking treatment
for her behaviors.”
¶12 The juvenile court adjudicated Child dependent based on its
finding that Mother failed to provide for Child’s basic needs, including
adequate shelter, and that she failed to obtain proper behavioral and mental
health services for Child. Mother timely appealed. We have jurisdiction.
Ariz. Const. art. VI, § 9; A.R.S. §§ 8-235(A), 12-120.21(A)(1), 12-2101(A)(1).
DISCUSSION
¶13 We review a dependency finding for an abuse of discretion,
Louis C. v. Dep’t of Child Safety, 237 Ariz. 484, 488, ¶ 12 (App. 2015), and will
affirm a dependency adjudication “unless no reasonable evidence supports
it,” Oscar F. v. Dep’t of Child Safety, 235 Ariz. 266, 267, ¶ 6 (App. 2014)
(quotation omitted). The juvenile court is in the best position to weigh the
evidence, and “we will not reweigh the evidence on review.” Louis C., 237
Ariz. at 488, ¶ 14.
¶14 The allegations in a dependency petition must be proven by a
preponderance of the evidence. A.R.S. § 8-844(C)(1). This standard requires
the factfinder to determine whether a fact sought to be proved is more
probable than not. Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 25 (2005).
Because the primary concern in a dependency case is always the child’s best
interests, Joelle M. v. Dep’t of Child Safety, 245 Ariz. 525, 527, ¶ 10 (App. 2018),
the juvenile court “is vested with a great deal of discretion.” Willie G. v. Ariz.
Dep’t of Econ. Sec., 211 Ariz. 231, 235, ¶ 21 (App. 2005) (quotation omitted).
¶15 A dependent child is one “[i]n need of proper and effective
parental care and control . . . who has no parent . . . willing to exercise or
capable of exercising such care and control,” A.R.S. § 8-201(15)(a)(i), or a
child “whose home is unfit by reason of abuse, neglect, cruelty or depravity
by a parent,” A.R.S. § 8-201(15)(a)(iii). “Neglect” means “[t]he inability or
unwillingness of a parent . . . of a child to provide that child with
supervision . . . if that inability or unwillingness causes substantial risk of
harm to the child’s health or welfare.” A.R.S. § 8-201(25)(a).
¶16 The juvenile court found, by a preponderance of the evidence,
that Child is in need of effective parental care and control, and Mother is
unwilling to provide this care and control. The court relied on Mother’s
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Decision of the Court
failure to engage Child in proper health services—despite Child’s
escalating behaviors, mental health conditions, and tendency to run away.
¶17 The court also relied on the fact that between October 2021
and August 2022, Mother only contacted Blake’s family twice to check on
Child or offer any support. It found that Mother’s testimony about Child’s
access into the home was inconsistent, and the fact that Child did not have
her own room indicated that Mother and Husband were not intending for
Child to reside there.
¶18 Mother contends the record is devoid of any evidence
establishing neglect, or demonstrating dependency is in Child’s best
interests. She argues that Child is not dependent merely because Child is
“an emotionally troubled young woman.”
¶19 Reasonable evidence shows that Mother was unwilling or
unable to provide effective supervision of Child. Mother failed to seek
proper services as Child demonstrated difficult behaviors and consistently
ran away. When DCS offered family counseling services, Mother declined
to participate. And she did not communicate any willingness to have Child
back in her home until she was asked at trial. Reasonable evidence in the
record supports the juvenile court’s findings. See Jesus M. v. Ariz. Dep’t of
Econ. Sec., 203 Ariz. 278, 282, ¶ 12 (App. 2002) (we do not reweigh the
evidence and will defer to the court’s resolution when supported by the
record).
CONCLUSION
¶20 We affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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