Opinion
No. 2 CA-JV 2017-0206
03-28-2018
DOROTHY J., Appellant, v. DEPARTMENT OF CHILD SAFETY, J.D., AND A.J., Appellees.
COUNSEL Domingo DeGrazia, 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 Minors
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NOT FOR PUBLICATION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. JD20170266
The Honorable Patricia A. Green, Judge Pro Tempore
AFFIRMED
COUNSEL Domingo DeGrazia, 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 Minors
MEMORANDUM DECISION
Judge Brearcliffe authored the decision of the Court, in which Presiding Judge Staring and Chief Judge Eckerstrom concurred. BREARCLIFFE, Judge:
¶1 Dorothy J., mother of juveniles J.D., born in February 2002, and A.J., born in March 2010, challenges the juvenile court's November 2017 order adjudicating the children dependent as to her. For the reasons stated below, we affirm.
¶2 We view the evidence in the light most favorable to affirming the juvenile court's order. Willie G. v. Ariz. Dep't of Econ. Sec., 211 Ariz. 231, ¶ 21 (App. 2005). The Department of Child Safety (DCS) investigated the home in which Dorothy was living with the children and A.J.'s father, Brandon, after reports of domestic violence and alcohol abuse. Following a report of domestic violence in April 2017, Brandon was arrested. The following day the DCS investigator and the investigator from the Office of Child Welfare (OCW) went to the home, requesting assistance from the Pima County Sheriff's Office after Dorothy answered and then hung up the telephone when the investigators tried to reach her. They found the front door open, and observed multiple firearms throughout the house, a knife, alcohol in various places, and noted the house was unsanitary and unsafe. Dorothy was walking unsteadily and slurring her words. After talking to the children, the OCW investigator learned Brandon had grabbed J.D. by the neck and choked Dorothy when she tried to intercede. J.D. then began hitting Brandon to help her mother. The investigator testified at the dependency hearing that Dorothy acknowledged there had been a physical altercation and agreed with J.D.'s version of what had taken place. The DCS investigator testified as well, describing the unsafe and unsanitary condition of the home and the fact that Dorothy was incoherent when she and the OCW investigator first made contact with her.
¶3 The OCW investigator testified that, based on the history of the family she had previously obtained, she was aware Dorothy suffers from Huntington's disease, which the investigator described as a degenerative disease that affects the brain and can affect a person's gait and speech. She therefore asked Dorothy whether she had any medical conditions to determine if that was contributing to her impairment, but Dorothy said she did not. J.D. reported the day before that her mother suffers from Huntington's disease, which Brandon corroborated, telling the investigator the disease makes Dorothy more aggressive. The children were removed from the home, and DCS filed a dependency petition.
The DCS caseworker testified that when she received the file in May 2017, the fact that Dorothy has Huntington's disease was "well written up in the court report" but conceded she had not seen any of Dorothy's medical records. Although the entire family reported that Dorothy suffers from the disease and J.D. told the caseworker there is a family history of the disease, Dorothy denied having it.
¶4 DCS alleged in the petition that Dorothy neglects the children by exposing them to ongoing domestic violence and that Brandon physically abused J.D. With respect to the history of violence in the home, DCS alleged Brandon had threatened Dorothy with a gun in 2013 and was arrested, and Dorothy was arrested in 2016 for biting and scratching Brandon. DCS further alleged Dorothy neglects the children due to her excessive, daily consumption of alcohol, the home is unfit and unsafe for a variety of reasons, and Dorothy's ability to parent is impaired by her medical condition of Huntington's disease. DCS alleged the children were dependent as to their respective fathers as well. Following a contested dependency hearing over three days in September, October and November 2017, the juvenile court found DCS had proved the allegations of the petition by a preponderance of the evidence, and adjudicated the children dependent.
The juvenile court adjudicated A.J. dependent as to Brandon and J.D. as to her father as well. The fathers are not parties to this appeal. --------
¶5 Dorothy first contends that "Arizona should create a narrowly tailored rule in dependency cases that requires trial courts to consider additional safety measures and resource options calculated to facilitate children remaining in the home when the parent has a terminal illness." She argues DCS cannot give her more time to reunify because her illness will prevent that, and as a consequence the children will be deprived of time with their mother that "cannot be regained." Conceding Arizona has no "law or policy that contemplates the instant circumstance in dependency cases," she refers to statutes in other contexts, including "compassionate release" of prison inmates and expedited adoption proceedings upon motion and affidavit. Dorothy asks this court "to create an analogous rule that would require the trial court to consider whether a parent has a terminal illness, and if so, take an additional step to inquire whether the minors can [be] safely maintained in the home with extra protections to the minors and supports to the family."
¶6 It is not for the courts to "rewrite statutes," rather it is for the legislature to determine "the appropriate wording" of a statute and "the court may not substitute its judgment for that of the Legislature." City of Phoenix v. Butler, 110 Ariz. 160, 162 (1973); see also Parker v. City of Tucson, 233 Ariz. 422, ¶ 20 (App. 2013). The legislature has defined a dependent child broadly as 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.R.S. § 8-201(15)(a)(i). A dependent child is also defined as one "whose home is unfit by reason of abuse, neglect, cruelty or depravity by a parent." § 8-201(15)(a)(iii). That section defines neglect as "[t]he inability or unwillingness of a parent . . . to provide [the] 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." § 8-201(25)(a). The statutes make no exception for a parent whose ability to parent is diminished, whether entirely or in part, by illness.
¶7 The primary focus in a dependency proceeding is on the child, including the condition of the child's home, whether the child's needs are being met, and whether the child is at risk of abuse or neglect. See Diana H. v. Rubin, 217 Ariz. 131, ¶ 31 (2007) ("[U]nder Arizona's statutory scheme, it is the best interests of the child, not the parent, that are paramount in a dependency proceeding."), citing to A.R.S. § 8-843(A) ("At any dependency hearing, the court's primary consideration shall be the protection of a child from abuse or neglect."). To the extent Dorothy is asking this court to engraft on the relevant statutes a factor that negates or is an exception to the statutory bases for the adjudication of a child as dependent, we may not and will not do so.
¶8 The record shows the juvenile court considered Dorothy's medical condition together with other relevant circumstances, stating it "understood the concern that [Dorothy's] medical condition may impact the ability" to parent but that it could not "overlook" the fact that it does have an effect. The court considered other factors that contributed to an unsafe environment for the children, including her denial that there had been incidents of domestic violence as well as alcohol abuse that affected Dorothy's ability to parent. Based on the plain language of the statute, the court did not err.
¶9 To the extent Dorothy is asking this court to create what she refers to as "a compassionate-release" type of dispositional alternative for dependent children of terminally ill parents, we similarly refuse that request. The legislature has specified the dispositional alternatives available to a court in A.R.S. § 8-845(A). The statute further provides that "the court shall consider the health and safety of the child as a paramount concern," setting forth the criteria a court must consider. § 8-845(B). Pursuant to § 8-845(A)(2) and (B), the juvenile court has broad discretion in determining the proper placement of a dependent child, but its primary concern must always be the child's best interest. Antonio P. v. Ariz. Dep't of Econ. Sec., 218 Ariz. 402, ¶ 8 (App. 2008). We will not disturb a court's placement order absent an abuse of that discretion. Id.
¶10 We agree with DCS that the statutes are broad enough to permit a court to consider a parent's illness and its effect on the parent's ability to adequately care for the child in deciding whether to place the child with the parent or outside of the home. At the end of the dependency hearing, Dorothy's guardian ad litem asserted that the chief issue in the case is primarily a medical issue. She urged the juvenile court to consider the importance of permitting the children to spend as much time as possible with Dorothy in order to allow them "to develop memories," before her condition deteriorated. The guardian ad litem added that the family would be "robbed of an awful lot of that." Dorothy's counsel similarly urged the court, if it was to find the children dependent, not to follow the typical case plan with significantly limited parenting time, but to consider the limited amount of time left for Dorothy to be with the children, urging the court to take that into consideration in ruling.
¶11 The record shows that, ruling from the bench, the juvenile court considered this and all other relevant circumstances when it adjudicated the children dependent and when it entered a disposition order. Acknowledging the concerns because of Dorothy's deteriorating health, the court directed DCS to give Dorothy "as much parenting time . . . as is reasonably possible," and to "make every effort to identify a relative to provide some supervised parenting time for" Dorothy. The court also stressed that DCS was to tailor the services it would be providing to the results of the neuro-psychological evaluation scheduled to be conducted later. Based on the statute and given the consideration the court gave to Dorothy's medical condition, we cannot and will not grant Dorothy's request to remand this matter to the juvenile court "with instructions to consider compassionate placement and review any other support options available to the family."
¶12 Dorothy also asserts there was insufficient evidence to support the finding that the children are dependent. Her entire argument is based on her own testimony that there was no domestic violence in the home, her insistence that the children were simply "play fighting," her testimony that the last time she consumed alcohol was "six months ago," and her assertion that she is therefore able to adequately care for the children.
¶13 Dorothy is essentially asking this court to reweigh the evidence and in doing so, to give greater weight to her own testimony than to other evidence. But we review a dependency adjudication 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, ¶ 12 (App. 2015). This court does not reweigh the evidence. See Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, ¶ 12 (App. 2002). And as we previously stated, we view the evidence in the light most favorable to sustaining the court's finding that DCS has met its burden of proving the allegations of the dependency petition by a preponderance of the evidence. See Willie G., 211 Ariz. 231, ¶ 21. There was ample evidence, including police reports, refuting Dorothy's denial of domestic violence. Evidence showed the parents argued frequently and on occasion became physical and violent, exposing the children to domestic violence. The home was unsanitary and unsafe, and the parents used alcohol constantly and excessively, escalating the conflict between them and contributing to Dorothy's inability to care for the children. Based on the record before us, there was sufficient evidence to support the adjudication.
¶14 For the reasons stated, we affirm the juvenile court's November 2017 order adjudicating J.D. and A.J. dependent.