Maria J. v. Dcs, R.R. ( 2015 )


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  •                       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    UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
    MARIA J., Appellant,
    v.
    DEPARTMENT OF CHILD SAFETY, R.R., Appellees.
    No. 1 CA-JV 14-0300
    FILED 4-14-2015
    Appeal from the Superior Court in Yuma County
    No. S1400JD20140281
    The Honorable Kathryn Stocking-Tate, Judge
    AFFIRMED
    COUNSEL
    The Law Offices of Kelly A. Smith, Yuma
    By Kelly A. Smith
    Counsel for Appellant
    Arizona Attorney General’s Office, Tucson
    By Erika Z. Alfred
    Counsel for Appellee Department of Child Safety
    MARIA J. v. DCS, R. R.
    Decision of the Court
    MEMORANDUM DECISION
    Judge Lawrence F. Winthrop delivered the decision of the Court, in which
    Presiding Judge Kent E. Cattani and Judge Peter B. Swann joined.
    W I N T H R O P, Judge:
    ¶1           Maria J. (“Mother”) appeals the juvenile court’s order
    adjudicating her child, R.R., dependent as to her.1 For the reasons stated
    below, we affirm.
    FACTS AND PROCEDURAL HISTORY2
    ¶2           Mother, a Guatemalan national, is an undocumented
    immigrant living in southern California. In December 1997, while living in
    Oregon, Mother gave birth to R.R. In 1998, Mother and R.R. moved to
    Guatemala, where Mother gave birth to another child, V.J., in December
    1999.3
    ¶3            In 2003, Mother returned to the United States, leaving the
    children in the care of their maternal grandparents in Guatemala. Over the
    next eleven years, Mother did not visit the children or bring them to visit
    her in the United States, although she sent them some money. Meanwhile,
    1      The juvenile court also adjudicated R.R. dependent as to her
    biological father, Remigio R. (“Father”), who has not been located and is
    believed to be deceased. Father is not a party to this appeal.
    2       In reviewing an adjudication of dependency, we view the evidence
    in the light most favorable to sustaining the juvenile court’s findings. Willie
    G. v. Ariz. Dep’t of Econ. Sec., 
    211 Ariz. 231
    , 235, ¶ 21, 
    119 P.3d 1034
    , 1038
    (App. 2005).
    3      We refer to R.R. and V.J. collectively as “the children.”
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    MARIA J. v. DCS, R. R.
    Decision of the Court
    when R.R. was ten years old, she dropped out of school and began cleaning
    homes to support V.J., her grandparents, and herself.4
    ¶4            The children’s grandmother died in December 2013, and their
    grandfather died a few weeks later, in January 2014. The children began
    living with an uncle, but were unable to continue doing so.
    ¶5            In June 2014, the children boarded a bus in Guatemala and
    began a four-to-five day journey to the United States border.5 Along the
    way, they were assaulted by Mexican law enforcement officers, who took
    most of their money. When the children reached the port of entry in San
    Luis, Arizona, they were detained by federal authorities. No adult met the
    children at the border, and R.R., who possessed only twenty dollars and the
    clothes on her back, had no way to get to Mother’s apartment in California.
    ¶6            The Arizona Department of Child Safety (“DCS”) took R.R.
    into temporary custody.6 A DCS investigator called Mother to come and
    get R.R., but Mother refused, ostensibly because she did not want to risk
    4      At the dependency hearing, Mother testified that, while the children
    were living in Guatemala, she sent them “400 or $500 per month,” and R.R.
    “never worked.” The juvenile court, however, found Mother’s testimony
    was not credible. See Hamilton v. Municipal Court, 
    163 Ariz. 374
    , 377, 
    788 P.2d 107
    , 110 (App. 1989) (“The trial court is not bound to accept as true the
    uncontroverted testimony of an interested party.” (citation omitted)).
    5       Mother testified she “made arrangements” for the children to travel
    from Guatemala to the United States, but had not sent money for the
    journey because the children already had “the money that I usually sent to
    them.” She further testified the children traveled with a twenty-year-old
    sibling, who was taken into custody at the United States border by federal
    officials because “she doesn’t have papers.” No other evidence supported
    Mother’s claim, and as previously noted, the juvenile court found she was
    not credible.
    6       Because V.J. is not a United States citizen, federal officials took him
    into custody and later released him. According to Mother, V.J. is currently
    in her custody. Even if true, however, we do not consider this information
    dispositive. Mother has provided no evidence or argument that the federal
    government is in any way subject to or regularly follows the Interstate
    Compact on the Placement of Children (“ICPC”), much less that it did so in
    V.J.’s case.
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    MARIA J. v. DCS, R. R.
    Decision of the Court
    the possibility of being apprehended at a Border Patrol checkpoint while
    traveling to Yuma, Arizona. Mother suggested her “significant other”
    might be able to pick up R.R., but DCS determined that would not be
    appropriate because he had a criminal history and had never met R.R.
    Mother refused to provide further contact information.
    ¶7            On June 18, 2014, DCS filed a petition alleging R.R. was
    dependent because Mother had neglected and abandoned her. In part, DCS
    maintained Mother was unable or unwilling to provide R.R. with the basic
    necessities of life, including medical care, proper supervision, and
    education; had left R.R. with relatives in Guatemala, where she did not
    attend school or receive medical care; had failed to pick up R.R. after she
    travelled through Mexico to the United States; and had refused to allow for
    inspection of Mother’s residence to ensure R.R.’s safety.
    ¶8            A guardian ad litem was appointed for R.R., and counsel was
    appointed for Mother. On June 20, 2014, the juvenile court held a
    preliminary protective hearing, and an initial dependency hearing was held
    on July 7, 2014.
    ¶9           Sometime after DCS filed the dependency petition, Mother
    provided the DCS investigator with contact information for a maternal aunt
    (“Aunt”) who might be able to pick up R.R. and transport her to California.
    Aunt, however, was unable to drive and stated she would have to rely on
    her husband (“Uncle”) to get R.R. Uncle, however, had a criminal history,
    including charges of domestic violence. Mother eventually gave Aunt a
    power of attorney authorizing her to take custody of R.R., ostensibly for the
    purpose of transporting R.R. to Mother, but because Aunt and Uncle were
    not Arizona residents, DCS officials concluded DCS was required under the
    ICPC to assess them in terms of placement before placing R.R. in their
    custody.7 However, DCS was unable to gather the necessary information
    to conduct an ICPC investigation for Aunt and Uncle.
    ¶10            While awaiting the dependency hearing, DCS placed R.R.
    with a foster family, who ensured she was attending school. R.R. was also
    given medical attention, receiving her first immunization shots.
    7      See generally Ariz. Rev. Stat. (“A.R.S.”) § 8-548; see also Ariz. Dep’t of
    Econ. Sec. v. Leonardo, 
    200 Ariz. 74
    , 77-78, ¶¶ 8-9, 
    22 P.3d 513
    , 516-17 (App.
    2001) (discussing Arizona’s adoption of the ICPC, and its purpose and
    policy in facilitating cooperation between states in the protection,
    placement, and monitoring of dependent children).
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    MARIA J. v. DCS, R. R.
    Decision of the Court
    Additionally, a visit to the dentist disclosed she had fifteen cavities, all of
    which ultimately required fillings.
    ¶11           DCS sent a referral for parenting classes and counseling to
    Mother in California, and started an ICPC process for Mother. DCS also
    offered Mother supervised visits and telephone contact with R.R., and
    Mother participated in telephonic visits with her approximately two or
    three times per week. However, Mother continued to refuse to come to
    Arizona to visit or get R.R. Further, DCS was unable to verify Mother’s
    claim that she was living in a one-bedroom apartment with V.J., or
    otherwise assess the current living situation, and was unable to verify
    Mother’s claim that she was currently employed or whether Mother had
    the financial means to care for R.R.
    ¶12           On September 3, 2014, the juvenile court held a contested
    dependency hearing. DCS presented testimony from the DCS investigator
    and the DCS caseworker assigned to the case. At the close of the State’s
    case, Mother moved for judgment as a matter of law as to both alleged
    grounds for dependency. The juvenile court denied Mother’s motion on
    the neglect ground, but granted the motion on the abandonment ground.
    ¶13            Mother, who was appearing telephonically and spoke
    through an interpreter, then testified she lives in an apartment with V.J.,
    who was placed with her by the federal government.8 She claimed she is
    employed by a small company during the week, cleans houses on
    weekends, has a weekly income of $580, and has the financial means to care
    for the children, including providing medical care, which she believes could
    be obtained through Medicaid. Mother further testified that V.J. is
    attending school, and she has looked into placing R.R. in a school. She
    stated she could not provide proof of her income, however, because she
    receives most of her income in the form of cash, and only a small amount
    through checks. She also stated she would not run the risk of coming to
    pick up R.R. due to her “legal status,” but Aunt and Uncle had come to
    Yuma and were present the day of the hearing.
    ¶14         At the conclusion of the hearing, the juvenile court
    adjudicated R.R. dependent after concluding DCS had proved by a
    8     Mother testified the apartment is leased by her “brother-in-law,” and
    although she is also listed as a tenant on the lease, V.J. is not. (Although the
    record is not clear, it appears the “brother-in-law” is Mother’s boyfriend’s
    brother.) She also testified the lease contains no condition limiting the
    number of people living in the apartment.
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    MARIA J. v. DCS, R. R.
    Decision of the Court
    preponderance of the evidence that Mother was unable to parent R.R. and
    Mother’s inability to parent caused an unreasonable risk of harm to R.R. In
    part, the court found Mother’s testimony was not credible, no parent
    willing and able to care for R.R. was physically present, Mother had failed
    to show proof of her housing arrangements or income, and Mother had
    neglected R.R. by failing to make appropriate plans for her care after her
    grandparents had died and allowing R.R. to assume the risk of traveling
    from Guatemala to the United States on a bus unsupervised, while Mother
    refused to even risk traveling to the border to get her. A case plan of family
    reunification was set, with a current target date of June 14, 2015.9
    ¶15           We have jurisdiction over Mother’s timely appeal pursuant to
    A.R.S. § 8–235(A).
    ANALYSIS
    ¶16           Mother argues the juvenile court erred in denying her motion
    for judgment as a matter of law as to the allegation of neglect and abused
    its discretion in finding R.R. dependent as to her.10 In effect, Mother’s
    9       DCS is currently offering the following services as part of its
    permanency plan: allowances and subsidies, case management services,
    medical and dental services, parent locate services, placement services,
    visitation services, and young adult services. The juvenile court has held
    periodic report and review hearings, and has found that DCS has made
    reasonable efforts to identify and assess placement with a member of the
    child’s extended family or persons with a significant relationship with the
    child, but no family members or persons with a significant relationship
    have yet been identified as an appropriate placement.
    10     DCS argues that, by failing to provide the standard of review or
    applicable case law, Mother has waived her argument regarding the denial
    of her motion for judgment as a matter of law. See ARCAP 13(a)(6)
    (requiring that, for each contention, “the proper standard of review on
    appeal shall be identified, with citations to relevant authority”); City of
    Tucson v. Clear Channel Outdoor, Inc., 
    218 Ariz. 172
    , 195, ¶ 88, 
    181 P.3d 219
    ,
    242 (App. 2008) (concluding that a party’s failure to adequately develop its
    argument resulted in waiver). In light of the significant interests in dispute,
    however, we address the merits of Mother’s argument.
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    MARIA J. v. DCS, R. R.
    Decision of the Court
    argument is that substantial and reasonable evidence does not support the
    court’s finding of dependency.
    ¶17            We review de novo the denial of a motion for judgment as a
    matter of law. Warne Invs., Ltd. v. Higgins, 
    219 Ariz. 186
    , 194, ¶ 33, 
    195 P.3d 645
    , 653 (App. 2008); Tobias v. Dailey, 
    196 Ariz. 418
    , 420, ¶¶ 6-7, 
    998 P.2d 1091
    , 1093 (App. 2000). In our analysis, however, we view the evidence and
    all reasonable inferences therefrom in the light most favorable to the
    nonmoving party. Warne Invs., 219 Ariz. at 194, ¶ 33, 
    195 P.3d at 653
    ; Tobias,
    
    196 Ariz. at 420, ¶ 7
    , 
    998 P.2d at 1093
    ; Monaco v. HealthPartners of S. Ariz.,
    
    196 Ariz. 299
    , 302, ¶ 6, 
    995 P.2d 735
    , 738 (App. 1999). A trial court should
    only grant a motion for judgment as a matter of law “if the facts produced
    in support of the claim or defense have so little probative value, given the
    quantum of evidence required, that reasonable people could not agree with
    the conclusion advanced by the proponent of the claim or defense.” Orme
    Sch. v. Reeves, 
    166 Ariz. 301
    , 309, 
    802 P.2d 1000
    , 1008 (1990). We will affirm
    if substantial evidence exists that could lead reasonable persons to find the
    ultimate facts to support the verdict.11 Goodman v. Physical Res. Eng’g, Inc.,
    
    229 Ariz. 25
    , 28, ¶ 6, 
    270 P.3d 852
    , 855 (App. 2011) (citations omitted); Acuna
    v. Kroack, 
    212 Ariz. 104
    , 111, ¶ 24, 
    128 P.3d 221
    , 228 (App. 2006).
    ¶18            Additionally, we review a juvenile court’s ultimate ruling in
    a contested dependency hearing for an abuse of discretion. See Willie G.,
    211 Ariz. at 235, ¶ 21, 119 P.3d at 1038. We will not disturb a dependency
    adjudication unless the findings on which it is based are clearly erroneous;
    that is, unless no reasonable evidence supports them. See id.; Pima Cnty.
    Juv. Dependency Action No. 118537, 
    185 Ariz. 77
    , 79, 
    912 P.2d 1306
    , 1308 (App.
    1994).
    11      Judgment as a matter of law during a trial without a jury is permitted
    if “a party has been fully heard on an issue and the court after determining
    the facts finds against the party on that issue.” Ariz. R. Civ. P. 52(c); see also
    S.S. v. Superior Court, 
    178 Ariz. 423
    , 424, 
    874 P.2d 980
    , 981 (App. 1994)
    (recognizing that this court may resort to the civil rules “where the juvenile
    rules are silent and where the civil rules are readily adaptable and necessary
    to the dependency proceedings”). If no findings of fact are requested or
    made, this court must presume the trial court found the necessary facts
    upon which to predicate its judgment, provided evidence exists in the
    record to support the presumption. Upton v. East-West Realty Co., 
    81 Ariz. 58
    , 60, 
    299 P.2d 646
    , 647 (1956); see also Ariz. R. Civ. P. 52(a), (c) (explaining
    findings of fact and conclusions of law are only necessary if requested).
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    MARIA J. v. DCS, R. R.
    Decision of the Court
    ¶19            The juvenile court, as the trier of fact in a dependency
    proceeding, is “in the best position to weigh the evidence, judge the
    credibility of the parties, observe the parties, and make appropriate factual
    findings.” Pima Cnty. Dependency Action No. 93511, 
    154 Ariz. 543
    , 546, 
    744 P.2d 455
    , 458 (App. 1987). Thus, the resolution of conflicting evidence is
    within the unique province of the juvenile court, and we will not reweigh
    the evidence. Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 
    207 Ariz. 43
    , 47, ¶ 8, 
    83 P.3d 43
    , 47 (App. 2004); Jesus M. v. Ariz. Dep’t of Econ. Sec., 
    203 Ariz. 278
    ,
    282, ¶ 12, 
    53 P.3d 203
    , 207 (App. 2002).
    ¶20            Under A.R.S. § 8-201(14)(a)(i), a dependent child is one who
    is “[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 child may also be dependent if the child’s “home is
    unfit by reason of abuse, neglect,[12] cruelty or depravity by a parent, a
    guardian or any other person having custody or care of the child.” A.R.S.
    § 8-201(14)(a)(iii). However, the focus of the dependency statutes is “not on
    the conduct of the parents but rather the status of the child.” Santa Cruz
    Cnty. Juv. Dependency Action Nos. JD-89-006 & JD-89-007, 
    167 Ariz. 98
    , 102,
    
    804 P.2d 827
    , 831 (App. 1990).
    ¶21           To an extent, Mother’s arguments ask us to reweigh the
    evidence, which, as we have recognized, we will not do. See Mary Lou C.,
    207 Ariz. at 47, ¶ 8, 83 P.3d at 47. Moreover, although Mother asserts the
    juvenile court erroneously shifted the burden of proof to her on the issues
    of her employment and housing, and otherwise characterizes several of the
    court’s findings as mere speculation, we conclude the underlying findings
    necessary for the court’s adjudication of dependency are supported by
    substantial, reasonable evidence, independent of any employment and
    housing issues.
    ¶22         In this case, Mother’s actions throughout have exhibited
    ongoing neglect supporting the conclusion that R.R. is dependent as to her.
    From the time Mother left R.R. in 2003, Mother never visited her, and
    12     Under A.R.S. § 8-201(24)(a), “neglect” is defined in pertinent part as:
    The inability or unwillingness of a parent, guardian or
    custodian 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 . . . .
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    MARIA J. v. DCS, R. R.
    Decision of the Court
    although Mother asserts she sent money for the children, it was clearly
    insufficient because R.R. had to drop out of school at a very young age and
    work to support her family, and she never received any medical or dental
    care. After R.R.’s grandparents died, Mother made no appropriate plans to
    get the children or bring them to live with her. Instead, five months later,
    Mother’s only “arrangements” consisted of a long, dangerous, and
    unsupervised bus trip through a foreign country with no additional funds
    made available to the children.13 Further, when the children reached the
    border, no adult met them, and with only twenty dollars, R.R. had no way
    to get to Mother’s home in California. Only after R.R. was in DCS’s
    protective custody did Mother suggest her “significant other” — who had
    a criminal history and had never met R.R. — could pick up R.R., and only
    after the dependency petition was filed did Mother suggest Aunt and Uncle
    could pick her up. DCS was unable to assess them in terms of placement,
    however, and Uncle had a criminal history. Many of these events are
    recent, and no evidence was presented that Mother’s ongoing inability or
    unwillingness to exercise proper judgment or provide proper parental
    supervision has changed. Accordingly, substantial, reasonable evidence
    supports the juvenile court’s conclusions that Mother “put the children in
    unreasonable risk of harm” and neglected the children because “she should
    have been making plans [when the grandparents died] to either go back to
    Guatemala and parent her children or . . . get the children up to the U.S,”
    and because she allowed the children to assume the risk of traveling
    through Mexico by themselves.
    ¶23            Moreover, after taking R.R. into temporary protective
    custody, DCS gave Mother an opportunity to come get her, but Mother
    refused to do so, and later testified she was unwilling to risk crossing the
    California border because she was undocumented. By the time of the
    dependency hearing, Mother still had not come to Arizona to see or get R.R.,
    and she continued to refuse to do so. Substantial, reasonable evidence
    therefore supported the juvenile court’s determination that R.R. was
    dependent because there was no parent “able or willing to take custody of
    [her]” at the time of trial.14
    13     Even Mother admitted the children could have come into harm
    traveling unsupervised through Mexico, and in fact, they were assaulted
    and robbed.
    14     Mother asserts she was willing and able to parent R.R. because she
    “sent someone with a legal valid power of attorney to pick her child up.”
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    MARIA J. v. DCS, R. R.
    Decision of the Court
    ¶24            Because substantial, reasonable evidence otherwise supports
    the juvenile court’s finding of dependency, we need not consider Mother’s
    assertion that the juvenile court shifted the burden of proof on the issues of
    her employment and housing. See Oscar F. v. Dep’t of Child Safety, 
    235 Ariz. 266
    , 269 n.5, ¶ 11, 
    330 P.3d 1023
    , 1026 n.5 (App. 2014) (holding that this court
    need not consider one reason for a dependency if sufficient evidence
    supports another). In any case, it appears the juvenile court was merely
    unpersuaded by the evidence Mother presented to counter DCS’s evidence
    that R.R. was dependent. Moreover, the uncertainty of Mother’s (and
    Aunt’s) living situation was relevant to the need for an ICPC home study
    for a child who was otherwise dependent.
    ¶25             As we have noted, Mother maintains the juvenile court
    should have allowed Aunt to transport R.R. to her based on the power of
    attorney Mother signed allowing Aunt to take custody of R.R. But given
    R.R.’s status as a child in the temporary protective custody of DCS, the
    ICPC prohibited the juvenile court from simply placing her with Aunt or
    enabling Aunt to take her to Mother in California. See A.R.S. § 8-548, art.
    III(a)-(b), (d); Ariz. Dep’t of Econ. Sec. v. Stanford, 
    234 Ariz. 477
    , 480-81,
    ¶¶ 17-18, 
    323 P.3d 760
    , 763-64 (App. 2014). When a parent’s rights have
    been diminished by a court order — as compared to a parent who has full
    legal rights prior to placing a child — “no inference of fitness for placement
    may be made.” Leonardo, 
    200 Ariz. at 81, ¶ 20
    , 
    22 P.3d at 520
     (concluding
    that the ICPC applies to the out-of-state placement of children made
    temporary wards of the juvenile court). Instead, the parent “must be
    investigated to ensure that the child would be safe if placed with that parent
    and, thereafter, provided any necessary services.” 
    Id.
     When a parent lives
    in another state, the ICPC requires the other state to “investigate and
    monitor the placement.” 
    Id.
     This is because “the primary purpose of the
    ICPC is to protect children by making certain they are placed in a safe
    environment.” 
    Id. at 82, ¶ 22
    , 
    22 P.3d at 521
    .
    ¶26           Further, the ICPC prohibits the juvenile court from sending a
    child into a receiving state without complying with the ICPC’s
    requirements or regulations. See Stanford, 234 Ariz. at 480-82, ¶¶ 17-23, 323
    P.3d at 763-65; A.R.S. § 8-548. A violation of the ICPC not only endangers
    However, when a parent executes a power of attorney, “the juvenile court
    d[oes] not err in refusing to give preclusive effect to the mother’s delegation
    of parental authority in relation to the dependency proceeding.” Maricopa
    Cnty. Juv. Action No. JD-05401, 
    173 Ariz. 634
    , 639-40, 
    845 P.2d 1129
    , 1134-35
    (App. 1993). The juvenile court therefore did not err in finding the power
    of attorney alone was insufficient.
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    MARIA J. v. DCS, R. R.
    Decision of the Court
    a child sent into another state without supervision, but also jeopardizes
    Arizona’s future ability to place children in the other state. See A.R.S. § 8-
    548, art. IV (providing that any “violation of the laws respecting placement
    of children . . . shall constitute full and sufficient grounds for the suspension
    or revocation of any license, permit, or other legal authorization held by the
    sending agency which empowers or allows it to place, or care for children”).
    ¶27           Neither Aunt nor Mother lives in Arizona. Mother provided
    mostly non-verifiable information at the dependency hearing, and
    continued to insist R.R. be released into Aunt’s care. As the DCS case
    manager testified, however, to place R.R. with Aunt or allow her to take
    custody of R.R., Aunt and Uncle would have had to comply with the
    requirements of the ICPC to ensure R.R. was in a safe environment. DCS
    was unable to gather the necessary information to conduct an ICPC
    investigation for Aunt and Uncle, however, and even without an
    investigation done through the ICPC, DCS discovered Aunt was unable to
    drive, Aunt relied on Uncle for transportation, and Uncle had a criminal
    conviction for domestic violence. Releasing a child into such a situation
    would thus be inappropriate under the ICPC. Further, sending R.R. to
    Mother in another state by any means would have violated the ICPC unless
    the juvenile court determined R.R. was not dependent. The ICPC
    prohibited the juvenile court from placing R.R. with Aunt or enabling Aunt
    to take her to Mother in California. Accordingly, substantial evidence
    supports the juvenile court’s denial of Mother’s motion for judgment as a
    matter of law, and reasonable evidence supports the court’s order finding
    R.R. dependent under A.R.S. § 8-201(14).
    CONCLUSION
    ¶28           Because substantial, reasonable evidence supports the
    juvenile court’s order of dependency, we affirm.
    :ama
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