Robert Z., Susan. v. Dcs, A.Z. ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
ROBERT Z., SUSAN Z., Appellants,
v.
DEPARTMENT OF CHILD SAFETY, A.Z., Appellees.
No. 1 CA-JV 21-0083
FILED 12-14-2021
Appeal from the Superior Court in Maricopa County
No. JD39223
The Honorable Karen A. Mullins, Judge (Retired)
AFFIRMED
COUNSEL
Terrea L. Arnwine PLLC, Tempe
By Terrea L. Arnwine
Counsel for Appellant Robert Z.
Crider Law PLLC, Mesa
By Brad J. Crider
Counsel for Appellant Susan Z.
Arizona Attorney General’s Office, Phoenix
By Emily M. Stokes
Counsel for Appellee Department of Child Safety
ROBERT Z., SUSAN Z. v. DCS, A.Z.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Randall M. Howe delivered the decision of the court, in
which Judge Brian Y. Furuya and Judge Michael J. Brown joined.
H O W E, Judge:
¶1 Robert Z. (“Father”) and Susan Z. (“Mother”) (collectively
“Parents”) appeal the juvenile court’s finding that their child, born March
2003, is dependent. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 We view the facts 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 (App. 2005). The married parties are the biological parents of the
child. The Department became involved when the child was 17 years old
and lived with Parents and her older adult sister. Parents regularly became
intoxicated and fought with the children. As a result, the child feared
Parents, had previously voiced that she had thoughts about committing
suicide and harming herself, and requested counseling, but Parents did not
address her mental-health concerns. In March 2020, a particular argument
escalated in the family, during which the child voiced her desire to harm
herself and Father stated that he would buy a gun to kill the family and
himself—a statement he had made more than once—and would buy a gun
for the child to kill herself. The day after the argument, Parents went to
Sedona for five days, leaving the child and her sister alone. Meanwhile, the
child and her sister left the home and checked into a motel. A few days later,
they moved in with the child’s classmate’s family. That same day, the
Department obtained a court order to remove the child from Parents’ home,
and the classmate’s family became the child’s placement.
¶3 A year later, the juvenile court found by a preponderance of
the evidence that the child was dependent as to Parents based on neglect,
specifically that (1) their excessive alcohol consumption made them
“incapable of exercising proper and effective parental care and control and
rendering the parents’ home unfit by reason of neglect”; (2) their failure to
address the child’s mental health through services, or ensure her safety after
she revealed her thoughts of suicide and self-harm to them, created “an
unreasonable risk of harm to [the child’s] health and welfare”; (3) Mother
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Decision of the Court
failed and was unwilling “to exercise proper and effective parental care and
control” in not protecting the child from Father’s threats to buy a gun and
kill the family and buy a gun so the child could shoot herself; and (4) Father
failed and was unwilling “to exercise proper and effective parental care and
control” in making those threats. However, the court ordered that the
dependency be dismissed three days later, the day that the child turned 18
years old. Father and Mother timely appealed.
DISCUSSION
¶4 Parents argue that the Department did not prove the
dependency by a preponderance of the evidence, and Mother separately
argues that the court abused its discretion in making an adverse inference
against her for not testifying at the dependency adjudication hearing. We
will review a dependency adjudication for an abuse of discretion. Louis C.
v. Dep’t of Child Safety, 237 Ariz. 484, 488 ¶ 12 (App. 2015). Because the
juvenile court was in the “best position to weigh the evidence, judge the
credibility of the parties, observe the parties, and make appropriate factual
findings,” In re Pima Cty. Dependency Action No. 93511, 154 Ariz. 543, 546
(App. 1987), we 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).
¶5 The Department argues that this case is moot because the
child is now 18 years old. A juvenile court’s jurisdiction ends by operation
of law when a juvenile becomes 18 years old. A.R.S. § 8–246(A); Matter of
Appeal in Maricopa Cty., Juv. Action No. JD-6236, 178 Ariz. 449, 451 (App.
1994). Because the juvenile court no longer has jurisdiction over the child, a
favorable ruling from this court on many of the issues that Parents raise on
appeal—that the Department did not make reasonable efforts to unify the
child with them, that the court relied too heavily on the child’s wishes about
therapeutic visitation, and that they were entitled to obtain their own
private services—will not affect their legal rights and responsibilities to the
child. “A question is moot when any action the court may take will have no
effect on the parties to the action.” Rohan Mgmt., Inc. v. Jantzen, 246 Ariz.
168, 172 ¶ 9 (App. 2019) (quoting Lord v. City of Tucson, 10 Ariz.App. 54, 55
(App. 1969)). Because a ruling on these issues would have no effect, we need
not address them.
¶6 Nevertheless, this appeal is not moot because the resolution
of one issue will affect Parents: whether the juvenile court properly found
that they neglected the child. A finding of dependency based on neglect will
place a parent on the central registry of child abuse reports maintained by
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Decision of the Court
the Department. A.R.S. § 8–804(A). Being placed on the registry may affect
a person’s ability to become foster parents, their fitness to adopt a child,
employment opportunities, and certain licensing abilities. A.R.S. § 8–804(B).
A ruling affirming or reversing the juvenile court’s determination of
dependency based on neglect will affect Parents’ rights and abilities.
¶7 Turning to the merits of the issue of neglect, the juvenile court
did not abuse its discretion in finding that the child is dependent as to
Mother and Father based on neglect because reasonable evidence supports
that finding. A child is dependent when the Department proves by a
preponderance of the evidence, A.R.S. § 8–444(C)(1), that she is “[i]n need
of proper and effective parental care and control,” her parents are not
“willing to exercise or capable of exercising such care and control,” and her
“home is unfit by reason of . . . neglect” from the parents, A.R.S.
§ 8–201(15)(a). The evidence supports the juvenile court’s finding that
Parents neglected the child in maintaining an unfit home through their
regular intoxication, creating an unreasonable risk of harm to the child’s
health and welfare by failing to address her mental-health concerns, and
subjecting the child to Father’s threats.
¶8 Parents argue that the Department did not prove the
dependency by a preponderance of the evidence. Mother argues that the
Department has interfered in “family drama” and that the child does not
have mental-health issues because she did not show signs of emotional
distress. Further, Father argues that the child is delinquent, not dependent,
and the Department did not offer evidence of abuse from a mental-health
professional. Evidence from an expert witness is not required here,
however, because the dependency finding was based on neglect and not
abuse. Parental abuse results in “serious emotional damage . . . diagnosed
by a medical doctor or psychologist,” A.R.S. § 8–201(2), while parental
neglect results if parents’ unwillingness to provide the child with medical
care “causes unreasonable risk of harm to the child’s health or welfare,”
A.R.S. § 8–201(25)(a). Further, in determining a dependency, the court
considers “the circumstances as they exist at the time of the dependency
adjudication hearing.” Shella H. v. Dep’t of Child Safety, 239 Ariz. 47, 48 ¶ 1
(App. 2016). Thus, reasonable evidence supports the court’s finding that the
child was dependent based on neglect.
¶9 Mother also argues that the court abused its discretion in
making an adverse inference against her for not testifying at the
dependency adjudication hearing. She argues that because she testified at
the Rule 59 hearing and had given her statement to the Foster Care Review
Board, her testimony at the dependency adjudication hearing would have
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Decision of the Court
been redundant. The court did not abuse its discretion because a negative
inference is appropriate when a party declines to testify. Melissa W. v. Dep’t
of Child Safety, 238 Ariz. 115, 117 ¶ 5 (App. 2015); cf. Gordon v. Liguori, 182
Ariz. 232, 236 (App. 1995) (an adverse inference is appropriate “under
limited circumstances” when a party fails to call a witness). The court stated
that Mother’s refusal to testify “justifies the inference that her testimony
would have been unhelpful.” Because reasonable evidence supports the
juvenile court’s findings, the court did not abuse its discretion.
CONCLUSION
¶10 For the foregoing reasons, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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