Opinion
No. 2 CA-JV 2017-0164
03-13-2018
ANGELA M., Appellant, v. DEPARTMENT OF CHILD SAFETY AND E.A., Appellees.
COUNSEL Emily Danies, Tucson Counsel for Appellant Mark Brnovich, Arizona Attorney General By Michelle R. Nimmo, Assistant Attorney General, Tucson Counsel for Appellee Department of Child Safety Pima County Office of Children's Counsel, Tucson By John Walters Counsel for Minor
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f); Ariz. R. P. Juv. Ct. 103(G). Appeal from the Superior Court in Pima County
No. JD204952
The Honorable Brenden J. Griffin, Judge
AFFIRMED
COUNSEL Emily Danies, Tucson
Counsel for Appellant Mark Brnovich, Arizona Attorney General
By Michelle R. Nimmo, Assistant Attorney General, Tucson
Counsel for Appellee Department of Child Safety Pima County Office of Children's Counsel, Tucson
By John Walters
Counsel for Minor
MEMORANDUM DECISION
Chief Judge Eckerstrom authored the decision of the Court, in which Judge Brearcliffe and Judge Vásquez concurred. ECKERSTROM, Chief Judge:
¶1 Angela M. appeals from the juvenile court's September 2017 order adjudicating her daughter, E.A., born in May 2001, a dependent child. Finding no error, we affirm.
¶2 A dependent child includes 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). The allegations in a dependency proceeding must be proven by a preponderance of the evidence, A.R.S. § 8-844(C), and, because the primary concern in a dependency proceeding is the best interests of the child, "the juvenile court is vested with a great deal of discretion," Willie G. v. Ariz. Dep't of Econ. Sec., 211 Ariz. 231, ¶ 21 (App. 2005), quoting Ariz. Dep't of Econ. Sec. v. Superior Court, 178 Ariz. 236, 239 (App. 1994). We defer to the juvenile court's ability to weigh and analyze the evidence. Shella H. v. Dep't of Child Safety, 239 Ariz. 47, ¶ 13 (App. 2016). Accordingly, "[w]e will only disturb a dependency adjudication if no reasonable evidence supports it." Id.
¶3 On appeal, we view the evidence in the light most favorable to affirming the factual findings upon which the juvenile court's order is based. Willie G., 211 Ariz. 231, ¶ 21. In October 2013, Angela admitted the allegations in an amended dependency petition initiated by the Department of Child Safety (DCS), which included allegations related to drug use, noncompliance with required drug testing, and possible mental health issues, and E.A. was adjudicated dependent as to her. In December 2014, E.A. and Angela consented to the appointment of N.Y. (Angela's former husband, who E.A. viewed as her "psychological father"), as E.A.'s permanent guardian; the court then appointed N.Y. as guardian and terminated the dependency. But in June 2016, Angela filed a petition to revoke the permanent guardianship for various reasons, including that E.A. was then living with her. Neither DCS nor E.A. objected to the petition to revoke the guardianship, which the court granted, and E.A. was returned to Angela's custody.
The Department of Child Safety is substituted for the Arizona Department of Economic Security in this decision. See 2014 Ariz. Sess. Laws 2d Spec. Sess., ch. 1, § 20.
¶4 In May 2017, V.R. (N.Y.'s mother, who characterized herself as E.A.'s "psychological grandmother"), filed a private dependency petition alleging Angela had abused E.A., failed to protect her from sexual molestation by Angela's boyfriend, used methamphetamine and alcohol, previously attempted to commit suicide, and was on probation for a felony offense. Angela contested the petition, and the juvenile court held a dependency adjudication hearing in September 2017. The record showed that E.A. had a troubled history, including multiple instances of running away, bipolar and anxiety disorders, possible chronic trauma, and that the family had been reported to DCS multiple times. Although E.A. was present at the hearing, she had been "on the run since before the [Dependency] Petition was authored and filed."
DCS informed the juvenile court it did not want to intervene as the petitioner.
¶5 The juvenile court permitted E.A.'s attorney to summarize her testimony instead of having her testify. He stated sixteen-year-old E.A. wanted to be placed in a group home and was willing to participate in services. He explained that she "fe[lt] uncomfortable" and unsafe in Angela's home; she had been the victim of physical and emotional abuse by Angela; and, she had been "raped . . . and sexually assaulted" by an individual she believed to be Angela's "significant other," conduct she had reported to Angela. E.A.'s attorney also asserted that he had "no doubt" that Angela was willing to parent E.A., but "she's unable to."
¶6 E.A.'s thirteen-year-old brother, K.Y. (Angela's and N.Y.'s son), testified about Angela's abusive conduct toward E.A. N.Y. similarly testified about the physical and emotional abuse E.A. had experienced in Angela's care. In contrast, Angela testified as follows: she had never physically or emotionally abused E.A., nor had E.A. told her about a sexual assault; V.R. treated E.A. inappropriately; there were orders of protection prohibiting V.R. and N.Y. from having contact with E.A.; and, Angela hoped to facilitate providing services for E.A. Angela also stated, "If we don't help my daughter now, I'm afraid of what her future is."
Based on the record before us, it is unclear if K.Y. and E.A. are half or full siblings.
¶7 The juvenile court ruled from the bench at the conclusion of the hearing, adjudicating E.A. dependent as to Angela. The court reasoned:
My focus is balancing parental rights versus what the Court thinks is in the best interest of the child. In this case, it's [E.A.]. If [E.A.] is just a recalcitrant rebellious teenager, then I don't think I should interfere with parental rights.
If there is something more going on with [E.A.], something along the lines of underlying trauma and abuse, something that needs concentrated therapeutic intervention, then I think it is okay for the Court to interfere with parental rights.
I think that's what's going on here. I do think there is more than just normal teenage behavior.
For that reason, I am finding under A.R.S. 8-201.15(A)(i), that there is a Dependency.
If the Minute Entry could specifically note that the Court is finding that the mother is willing, but that the mother is not able to
exercise the proper and effective care and control that the Court thinks [E.A.] needs.This appeal followed.
At the conclusion of the dependency hearing, the juvenile court found DCS was a party, ordered it to intervene, gave it legal and physical custody of E.A., and ordered it to file a dependency petition. That petition, filed in October 2017, is not the subject of this appeal. DCS did not file an answering brief on appeal.
¶8 On appeal, Angela generally contends that the juvenile court erred by adjudicating E.A. dependent. But Angela has ignored the court's factual findings, including that it is in E.A.'s best interests to adjudicate her dependent because Angela "is not able to exercise the proper and effective care and control" that E.A. needs. See A.R.S. § 8-201(15)(a)(i). Angela has not established that the court's findings, set forth above, are incorrect or explained how they fail to support the court's ruling that E.A. is dependent. Nor has she explained how placing E.A. in the care of DCS is not in E.A.'s best interests. Rather, she maintains she "has put in place every service possible to afford [E.A.] significant help for her problems and living situations," and that adjudicating her dependent will not make her more compliant with those necessary services.
¶9 However, as E.A.'s attorney correctly argued at the hearing, "a dependent child[] is a minor who is in need of parental control," see A.R.S. § 8-201(15)(a)(i), and despite Angela's "best efforts, she is not able to [provide proper and effective parental care and control], just by virtue of the fact that [E.A.] is refusing to be parented by her mother, [for which] she has her reasons." In response to questions from the juvenile court, E.A.'s attorney explained that E.A. wants the court to intervene and "would do anything that resulted in her not being in her mother's care and custody," and added that adjudicating E.A. dependent would permit her to take advantage of the services she needs and would help "keep[] her safe," rather than having her continue to run away.
¶10 Notably, the juvenile court was aware of E.A.'s troubled past and of Angela's continuing efforts to help E.A., including her attempts to provide services for E.A. In fact, the author of the Preliminary Protective Hearing and Initial Dependency Hearing Report, which was admitted at the dependency hearing, extensively documented Angela's efforts to advocate for E.A. In addition, Angela's attorney argued that the services Angela could arrange were "more than likely, no different" than the services DCS would offer. The court nonetheless responded, "And, I get that. What I'm trying to focus in on, is not [Angela's] willingness, but [her] inability" to make E.A. "go with the flow" and stop running away.
¶11 To the extent Angela asks us to reconsider the testimony presented to the juvenile court, including her own testimony about K.Y., N.Y., and V.R.; the parties' compliance with the orders of protection; E.A.'s conduct; and her own sobriety, she is essentially asking that we reweigh the evidence presented, which we will not do. Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, ¶ 12 (App. 2002) ("The resolution of . . . conflicts in the evidence is uniquely the province of the juvenile court as the trier of fact; we do not re-weigh the evidence on review."). In summary, the court was presented with reasonable evidence showing that E.A. was "[i]n need of proper and effective parental care and control," § 8-201(15)(a)(i); Angela was not "capable of exercising such care and control," id.; and, adjudicating E.A. dependent was in her best interests, a finding well within the court's discretion to make. See Willie G., 211 Ariz. 231, ¶ 21.
¶12 Additionally, Angela maintains that E.A.'s "behavior of truancy, runaway status, and refusing to participate in psychological [services]" shows she is incorrigible rather than dependent, and asks that we "remand to determine whether [E.A.] is an incorrigible child." See A.R.S. § 8-201(19)(c). Notably, a dependency adjudication is different from one based on incorrigibility. See JV-502820 v. Superior Court, 181 Ariz. 243, 245 (App. 1995); compare A.R.S. § 8-201(15)(a)(i), with § 8-201(19). And, because this appeal arises solely from the juvenile court's dependency adjudication, we limit our decision to that ruling.
Although Angela asserts her attorney argued below that E.A. was incorrigible, the record instead shows counsel asserted E.A. was delinquent. --------
¶13 We affirm the juvenile court's order adjudicating E.A. dependent.