Shella H. v. Dcs

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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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

SHELLA H., Appellant,

v. DEPARTMENT OF CHILD SAFETY, J.G., G.H., A.H., A.H., I.H., Appellees.

No. 1 CA-JV 15-0140 FILED 10-20-2015

Appeal from the Superior Court in Maricopa County No. JD29771 The Honorable Connie Contes, Judge

AFFIRMED

COUNSEL

Maricopa County Public Advocate, Mesa By David C. Lieb Counsel for Appellant

Arizona Attorney General’s Office, Phoenix By JoAnn Falgout Counsel for Appellee

SHELLA H. v. DCS, et al. Decision of the Court

MEMORANDUM DECISION

Presiding Judge Kenton D. Jones delivered the decision of the Court, in which Judge Samuel A. Thumma and Judge Peter B. Swann joined.

J O N E S, Judge:

¶1 Shella H. (Mother) appeals the juvenile court’s order adjudicating J.R.H., G.R.H., A.D.H.H., A.H., and I.H. (the Children) dependent. For the following reasons, we affirm.

FACTS1 AND PROCEDURAL HISTORY

¶2 In January 2015, Mother left the Children, ages eleven, ten, seven, two, and six months, unsupervised in a hotel room where they were living, while she was passed out in the bathroom after vomiting blood on the floor and sink. When the Children found Mother unresponsive, they contacted a maternal aunt who called emergency services. Mother was admitted to the hospital where subsequent testing revealed her blood alcohol concentration was 0.24. Because the Children were unattended and their father (Father) was incarcerated in California at the time,2 the Department of Child Safety (DCS) assumed temporary custody of the Children placing them in licensed foster homes.

¶3 Subsequent investigation revealed a significant history of domestic violence between Mother and Father. In fact, Father’s recent incarceration resulted from an arrest in December 2014 after he choked Mother, punched her in the face four times, and “held her hostage” in the presence of the Children. When admitted at the hospital in January 2015, Mother reported she suffered several broken ribs from the altercation and

1 “On review of 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 (App. 2005).

2 The Children were adjudicated dependent as to Father on February 12, 2015 on the grounds of neglect, mental health issues, domestic violence, and substance abuse. He did not challenge this determination and is not a party to this appeal.

SHELLA H. v. DCS, et al. Decision of the Court

moved to Arizona to “escape” the abusive relationship. Father pled guilty to five counts of child endangerment on the same day the Children discovered their Mother unconscious in a pool of blood and vomit,3 and was sentenced to probation for two years plus time served. Mother told a DCS caseworker that the “domestic violence relationship” with Father had lasted for fifteen years with several arrests of, and orders of protection against, one or the other. The three oldest children confirmed regular physical arguments between their parents which had sometimes resulted in physical injury to the Children as well. They also reported Father having hit them with belts and other objects and slapped them across the face.

¶4 DCS was further concerned about the effect of the family’s transient lifestyle on the Children. The parents reported moving every few days from hotels, the family vehicle, and “the woods.” At the adjudication hearing, Mother was unable to provide a physical address for any prior residence.4 Aside from J.R.H. attending kindergarten for a short time, the Children had never attended school; neither had they received any regular medical care for at least the past six years. The two youngest children, along with a deceased son, were born in hotels. Additionally, Mother had a long history of alcohol abuse, and Father reported using marijuana on a regular basis.

¶5 DCS filed a petition alleging the Children were dependent as to Mother as a result of substance abuse, domestic violence, and neglect. At the dependency adjudication hearing held in March 2015, DCS called Mother as its first witness.

¶6 Mother testified the Children were removed while she was in the hospital because she was “sick” and throwing up blood but denied it resulted from her alcohol consumption. When questioned regarding the domestic violence with Father, Mother stated she “would agree that yes, there’s been arguing,” but it rose to the level of physical violence on only a

3 Mother initially testified her sister picked the Children up from school on this day, where they were later removed by DCS, suggesting the Children were never at the hotel with her. This statement is contrary to her later testimony that her children had not attended school since her now- sixth grader went to kindergarten.

4 Again, Mother testified inconsistently, first asserting she lived in Portland for the past eleven years, and then stating she moved to Arizona when her now seven-year-old son was born.

SHELLA H. v. DCS, et al. Decision of the Court

single occasion, in December 2014.5 She also denied sustaining any injury or seeking medical treatment after the incident, maintaining Father “was not convicted of that,” and his child endangerment convictions “w[ere] for yelling in front of them.” Mother testified she did obtain an order of protection against Father, but only because she was advised by DCS to do so, and expressed having no concern, at any time, for her safety or that of the Children. She further denied making any of the comments to the contrary that were reflected in reports from medical personnel and the DCS caseworker.

¶7 On cross-examination, Mother’s counsel focused her presentation upon evidence suggesting out-of-home care was no longer necessary. Mother provided significant evidence and testimony describing her compliance with random urinalysis testing demonstrating she was substance free and her participation in parent aide services, substance abuse treatment, AA meetings, domestic violence counseling, couples counseling, parenting classes, and visitation. Her counsel argued DCS could, and should, continue to provide substance abuse testing and treatment while the Children remained in her care and implement a safety plan to address the domestic violence. Mother further argued DCS failed to present any evidence the Children were actually harmed by her religious-based objections to traditional schooling and medical care.

¶8 The current DCS case manager confirmed DCS had requested Mother participate in urinalysis testing, substance abuse treatment, and parent aide services, that these services were initiated quickly after the Children were removed, and Mother had not tested positive for any substances since the removal. The juvenile court sustained only one relevance objection, determining that whether DCS requested Mother complete domestic violence counseling was not relevant to the dependency adjudication.

¶9 After taking the matter under advisement, the juvenile court issued a ruling finding DCS had proven by a preponderance of the evidence the Children were dependent as to Mother on all three grounds alleged. Mother timely appealed. We have jurisdiction pursuant to Arizona Revised

5 This position is inconsistent with prior documented arrests and reports to child protective service agencies in other states, as well as Mother’s initial request that Father not participate in the team decision- making meeting.

SHELLA H. v. DCS, et al. Decision of the Court

Statutes (A.R.S.) sections 8-235(A),6 12-120.21(A)(1), and -2101(A)(1) and Arizona Rules of Procedure for the Juvenile Court 103(A). See Yavapai Cnty. Juv. Action No. J-8545, 140 Ariz. 10, 14 (1984) (holding “orders declaring children dependent . . . are final orders subject to appeal by aggrieved parties”).

DISCUSSION

¶10 Mother argues the juvenile court erred in considering whether the Children were dependent at the time they were removed by DCS, rather than whether the Children remained dependent at the time of the adjudication. DCS concedes on appeal that the court must determine whether a child is dependent under the circumstances existing at the time of the adjudication hearing. See A.R.S. § 8-201(14)(a)(i) (defining a dependent child in the present tense as one who “has no parent or guardian, or one who has no parent or guardian willing to exercise or capable of exercising such care and control”) (emphasis added), (iii) (defining a dependent child in the present tense as one whose “home is unfit by reason of abuse, neglect, cruelty or depravity by a parent”) (emphasis added); see also A.R.S. § 8-844(B) (requiring the court to consider present circumstances that would “eliminate the need for removal of the child”), (C)(1) (directing the court to determine “that the allegations contained in the petition are true”) (emphasis added). DCS argues, however, the court applied the correct standard in adjudicating the Children dependent by reason of domestic violence, and because the order is supported by reasonable evidence, we should affirm.

¶11 A finding of dependency requires proof by a preponderance of the evidence. A.R.S. § 8-844(C)(1). We review an order adjudicating a child dependent for an abuse of discretion, deferring to the juvenile court’s ability to weigh and analyze the evidence. Louis C. v. Dep’t of Child Safety, 237 Ariz. 484, 488, ¶ 12 (App. 2015). We will therefore only disturb a dependency adjudication if no reasonable evidence supports it. Id. (citing Willie G., 211 Ariz. at 235, ¶ 21).

¶12 A child may be dependent where the parent is unwilling or unable to protect the child from abuse. See Pima Cnty. Juv. Action No. J- 77188, 139 Ariz. 389, 392 (App. 1983) (“Effective parental care clearly implies prevention of sexual as well as other physical abuse.”); see also Pima Cnty. Juv. Dependency Action No. 96290, 162 Ariz. 601, 605 (App. 1990) (“A

6 Absent material revisions from the relevant date, we cite a statute’s current version.

SHELLA H. v. DCS, et al. Decision of the Court

finding of dependency may be predicated on one parent’s failure to prevent abuse by another parent.”) (citing Pima Cnty. Juv. Dependency Action No. 97247, 158 Ariz. 55, 57 (App. 1988)). In adjudicating the Children dependent as to Mother on the ground of domestic violence, the juvenile court relied on the following findings:

 Mother admitted she and Father had been in a violent relationship for fifteen years and also identified two instances, one in 2012 and one in 2014, where either Mother or Father had been arrested for domestic violence.

 The Children witnessed Mother and Father engaging in violent altercations many times, which included watching Father choke Mother, and reported that Father is scary during these events.

 A.D.H.H. suffered a broken wrist on one occasion when he attempted to intervene on Mother’s behalf during an altercation.

 Mother voluntarily released the order of protection she obtained against Father following the December 2014 altercation after only one day.

¶13 Importantly, the juvenile court made a specific finding that “during her own testimony, [M]other attempted to minimize the length, scope, and nature of domestic violence history between [M]other and [F]ather.” We will not second-guess the court’s assessment of Mother’s credibility as a witness. See Christina G. v. Ariz. Dep’t of Econ. Sec., 227 Ariz. 231, 234, ¶ 13 (App. 2011) (“The juvenile court is in the best position to weigh the evidence, observe the parties, judge the credibility of witnesses, and make appropriate findings.”) (citing Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 280, ¶ 4 (App. 2002)). Moreover, this finding contradicts Mother’s contention that, had she been granted greater opportunity, she would have been able to demonstrate that the circumstances giving rise to the removal on the basis of domestic violence had been eliminated by the time of the adjudication hearing. Mother testified first, before any discussion regarding the applicable standard; she was granted opportunity to discuss, at length, her sobriety, her housing situation, and her participation in services including domestic violence counseling.7 Yet,

7 The court sustained only one of DCS’s objections to the relevance of the testimony sought to be elicited by Mother’s attorney, determining that whether Mother was requested by DCS to complete domestic violence

SHELLA H. v. DCS, et al. Decision of the Court

when given the opportunity to establish that the Children would be safe in her care, she chose instead to test the court’s tolerance by presenting incredulous testimony.

¶14 And, contrary to Mother’s assertion otherwise, domestic violence need not be continuous or actively occurring at the time of the adjudication hearing to support a finding of dependency on these grounds; the substantiated and unresolved threat is sufficient. See No. 96290, 162 Ariz. at 604 (rejecting argument that juvenile court erred in adjudicating a child dependent when he was born after events giving rise to a finding of dependency for his older siblings, and noting instead that “[a]ssuming that the state can prove the conditions creating the dependency as to the older children, and that those conditions pose an imminent risk of harm to the newborn, the statute does not preclude the state from acting to protect the newborn until a specific injury has been inflicted upon him”). This is particularly true where, as here, the parent simply denies the alleged conduct. As we have previously held, this Court:

will not hesitate to affirm a finding of dependency as to parents who presently deny that they are responsible for past abuse and neglect for the obvious reason that such denial of responsibility supports a finding that their children do not have parents presently willing to or capable of exercising proper and effective parental care and control. To hold otherwise would permit an abusive or neglectful parent to defeat an allegation of dependency by the mere passage of time.

Id.

¶15 Although the juvenile court erred in considering the circumstances at the time the dependency was filed rather than at the time of the adjudication hearing, viewing the evidence in the light most favorable to upholding its ruling, we nonetheless conclude substantial evidence exists to support a finding that domestic violence regularly occurred between Mother and Father, in the presence of the Children, and sometimes causing serious physical injury to both Mother and the Children, and at the time of the hearing, Father had been released from jail to serve

counseling was not relevant to the dependency adjudication. Mother has not and cannot establish prejudice from preclusion of that information where she had already presented testimony and evidence that she had self- referred and was actively engaged in domestic violence counseling.

SHELLA H. v. DCS, et al. Decision of the Court

his term of probation and remained a present and viable threat to the well- being of the Children. Substantial evidence also supports a determination that Mother failed to even acknowledge, let alone address, these concerns through her blanket denial of the circumstances. This assessment provides an additional basis to find she is presently unable or unwilling to parent and protect the Children. Thus, regardless of how the court heard, weighed, and interpreted the evidence, its specific findings are supported by the record and are objectively sufficient to show DCS proved, by a preponderance of the evidence, that the Children were dependent as to Mother on this ground.

CONCLUSION

¶16 The order of the juvenile court finding the Children dependent as to Mother is affirmed.

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