Shella H. v. Department of Child Safety

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 1-12-2016

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 Appellees

OPINION

Presiding Judge Kenton D. Jones delivered the opinion of the Court, in

which Judge Samuel A. Thumma and Judge Peter B. Swann joined.

SHELLA H. v. DCS, et al.

Opinion of the Court

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. We hold the juvenile court must consider the circumstances as

they exist at the time of the dependency adjudication hearing in

determining whether a child is a dependent child. Because the record

contains reasonable evidence to support the court’s order finding the

Children were dependent as to Mother on the ground of domestic violence

at the time of the dependency adjudication hearing, 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; 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 and

placed 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

moved to Arizona to “escape” the abusive relationship. On the same day

the Children discovered their Mother unconscious in a pool of blood 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.

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SHELLA H. v. DCS, et al.

Opinion of the Court

vomit,3 Father pled guilty to five counts of child endangerment and was

sentenced to probation for two years plus time served. Upon his release,

Father immediately attempted to reestablish contact with Mother and the

Children.

¶4 Mother told a DCS caseworker that the “domestic violence

relationship” with Father had lasted for fifteen years. As a result, both

parents had been arrested and both had obtained orders of protection

against 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 hit them with belts

and other objects and slapped them across the face.

¶5 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.

¶6 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.

¶7 Mother testified the Children were removed while she was in

the hospital because she was “sick” and throwing up blood but denied her

ill health resulted from alcohol consumption. When questioned regarding

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.

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SHELLA H. v. DCS, et al.

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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

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 said she had no concern, at any time, for her safety or that of the

Children. She further denied making any of the contrary comments that

were reflected in reports from medical personnel and the DCS case

manager.

¶8 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, Alcoholics Anonymous meetings, domestic violence

counseling, couples counseling, parenting classes, and visitation. Her

counsel argued DCS could, and should, continue to provide services 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.

¶9 At the conclusion of DCS’s presentation, Mother’s counsel

called the current DCS case manager to testify. Counsel for DCS questioned

the relevance of testimony from an individual who did not receive the case

until “well over a month after removal,” and the juvenile court judge

agreed, stating evidence regarding Mother’s efforts to remedy “would

come after a dependency finding.” The judge allowed the testimony, but

advised she would only give that evidence the weight she believed it

deserved, explicitly noting her understanding that DCS’s burden was “to

prove the allegations as they existed at the time the dependency was filed

. . . not whether or not Mother has remedied those.” The judge further

advised she would not “expand this beyond a dependency adjudication”

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.

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SHELLA H. v. DCS, et al.

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and cautioned she “may well sustain an objection to going beyond the scope

of necessary evidence for the dependency adjudication.”

¶10 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.

¶11 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

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

¶12 Mother argues the juvenile court erred by focusing on

whether the Children were dependent at the time they were removed,

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 based upon 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’s order

adjudicating the Children dependent is supported by reasonable evidence

establishing Mother remained unable or unwilling to parent at the time of

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

current version.

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the adjudication hearing as a result of domestic violence, and therefore, we

should affirm.7

¶13 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 only disturb a dependency

adjudication if no reasonable evidence supports it. Id. (citing Willie G., 211

Ariz. at 235, ¶ 21).

¶14 A child may be dependent when 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

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 made

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.

7 DCS does not argue on appeal that the order adjudicating the

Children dependent should be upheld on the grounds of substance abuse

or neglect.

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SHELLA H. v. DCS, et al.

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 Mother voluntarily released the order of protection she

obtained against Father following the December 2014

altercation after only one day.

¶15 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 at the

adjudication hearing to elicit information, she would have been able to

demonstrate that the circumstances giving rise to the removal on the basis

of domestic violence had been eliminated. Mother testified first, before any

discussion regarding the applicable standard; she had an opportunity to

discuss, at length, her sobriety, her housing situation, and her participation

in services including domestic violence counseling.8 Yet, when given the

opportunity to establish that the Children would be safe in her care, she

chose instead to test the court’s tolerance with implausible testimony.

¶16 And, contrary to Mother’s assertion, 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 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

8 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 DCS asked Mother to complete domestic violence 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.

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particularly true where, as here, the parent 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.

¶17 Although the juvenile court articulated the wrong moment in

time when the dependency must be found to have existed, in its discussions

with counsel during the adjudication hearing it ultimately concluded

“[M]other is unable to provide for her children due to domestic violence.”

(Emphasis added). Viewing the evidence in the light most favorable to

upholding the court’s ruling, we 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 a 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 denial of

the issue. This assessment provides an additional basis to find she is

presently unable or unwilling to parent and protect the Children. Thus, the

court’s 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 the ground of domestic

violence at the time of the adjudication hearing.

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CONCLUSION

¶18 The order of the juvenile court finding the Children

dependent as to Mother is affirmed.

:ama

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