Opinion
2 CA-JV 2023-0076
08-15-2023
In re Dependency of E.S. and S.S.,
Sarah Michele Martin, Tucson Counsel for Appellant Kristin K. Mayes, Arizona Attorney General By Dawn R. Williams, Assistant Attorney General, Tucson Counsel for Appellee Department of Child Safety
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pima County No. JD20220422 The Honorable Cathleen Linn, Judge Pro Tempore
Sarah Michele Martin, Tucson Counsel for Appellant
Kristin K. Mayes, Arizona Attorney General By Dawn R. Williams, Assistant Attorney General, Tucson Counsel for Appellee Department of Child Safety
Judge O'Neil authored the decision of the Court, in which Vice Chief Judge Staring and Judge Sklar concurred.
MEMORANDUM DECISION
O'NEIL, JUDGE
¶1 Kimberley D. appeals from the juvenile court's order adjudicating her sons, E.S., born in October 2009, and S.S., born in October 2010, dependent. She challenges the sufficiency of the evidence to support the dependency. We affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to upholding the juvenile court's findings. See Willie G. v. Ariz. Dep't of Econ. Sec., 211 Ariz. 231, ¶ 21 (App. 2005). In July 2022, the Department of Child Safety (DCS) received a report that E.S. had called 9-1-1 during an incident of domestic violence between Kimberley, who appeared to be under the influence, and her boyfriend, Tommy E. DCS also learned of several additional incidents over the prior two months, in which police had responded to the residence after Tommy assaulted Kimberley and the children. In August 2022, E.S., who had a black eye, reported to the school nurse that Tommy had punched him the night before when he attempted to defend Kimberley.
From August 2004 through February 2022, there were nine additional reports to DCS concerning the family, but those reports were found to be unsubstantiated.
¶3 In September 2022, DCS filed a dependency petition, alleging that E.S. and S.S. were dependent as to Kimberley because she was "neglecting to provide proper and effective parental care and control due to domestic violence." DCS also alleged that the home was "unfit by reason of [Kimberley's] failure to protect from abuse" and that she was "unwilling or unable to provide proper and effective parental care and control due to substance abuse." The children were placed with their father, Eric S.
The juvenile court also adjudicated the children dependent as to their father, Eric. He is not a party to this appeal.
¶4 At the preliminary protective hearing later that month, the juvenile court ordered DCS to provide Kimberley with visitation services, and DCS also requested that she participate in drug testing. Kimberley missed or was unable to provide a sample at the first eleven requested tests. In October 2022, she tested positive for methamphetamine. After missing several additional tests, she tested positive for methamphetamine twice and for amphetamine once in December 2022.
¶5 Also in December 2022, upon DCS's motion, the juvenile court found that Eric was "using abusive physical discipline on the children" and ordered them removed from his care. The children were ultimately placed with Eric's girlfriend, with a safety plan that Eric would not stay at the same residence. Kimberley tested positive for methamphetamine again in February 2023.
¶6 After a contested dependency hearing held over several days from January to April 2023, the juvenile court adjudicated E.S. and S.S. dependent. The court found that Kimberley was unable to provide "proper, effective parental care and control" due to both domestic violence and substance abuse and that her home was unfit "by reason of [her] inability to protect [the children] from abuse." This appeal followed.
In March 2023, DCS filed a motion for change of physical custody of the children from Eric's girlfriend to DCS. After the dependency adjudication, the juvenile court ordered that E.S. immediately be placed with Kimberley's former husband, pending a home inspection. The court also ordered S.S. to join E.S. after the school year ended.
Discussion
¶7 Kimberley challenges the sufficiency of the evidence to support the dependency. "We review an order adjudicating a child dependent for an abuse of discretion ...." Shella H. v. Dep't of Child Safety, 239 Ariz. 47, ¶ 13 (App. 2016). In doing so, we defer to a juvenile court's ability to judge the credibility of witnesses, observe the parties, and weigh the evidence. Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, ¶ 4 (App. 2002). Thus, we will only disturb a dependency adjudication if no reasonable evidence supports it. Louis C. v. Dep't of Child Safety, 237 Ariz. 484, ¶ 12 (App. 2015).
¶8 A dependent child is 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" or one "whose home is unfit by reason of abuse, neglect, cruelty or depravity by a parent, a guardian or any other person having custody or care of the child." A.R.S. § 8-201(15)(a)(i), (iii). "Neglect" means "[t]he inability or unwillingness of a parent, guardian or custodian of a child to provide that child with supervision, food, clothing, shelter or medical care if that inability or unwillingness causes substantial risk of harm to the child's health or welfare." § 8-201(25)(a). DCS must prove the allegations in a dependency petition by a preponderance of the evidence based on the circumstances existing at the time of the hearing. A.R.S. § 8-844(C); Shella H., 239 Ariz. 47, ¶¶ 12, 17.
¶9 Kimberley argues that "there was no evidence whatsoever presented at trial that would support a dependency adjudication." She maintains that "she was willing and capable of providing proper and effective care and control of her children" and that she "had stable housing and steady employment." She further asserts that, although she and the children "had been the victims of domestic violence," "the perpetrator was no longer in their lives."
Contrary to Kimberley's suggestion, neither DCS alleged nor the juvenile court found a dependency based on § 8-201(15)(a)(ii).
¶10 At bottom, Kimberley's argument amounts to a request that we reweigh the evidence. We will not do so. See Jesus M., 203 Ariz. 278, ¶ 4. Instead, we review the record for reasonable evidence supporting the dependency adjudication, and such evidence exists here. See Louis C., 237 Ariz. 484, ¶ 12.
¶11 As to the domestic violence allegations, although Tommy was no longer living with Kimberley, she had a long history of domestic violence with him and of repeatedly letting him return to her home- including after taking out an order of protection against him. In addition, Kimberley minimized the severity of the abuse, which had resulted in physical harm to the children, who were frequently present for the altercations between their mother and Tommy. Kimberley also has a history of domestic violence with Eric.
¶12 As to the substance abuse allegation, Kimberley failed to drug test dozens of times and also tested positive for methamphetamine on several occasions. Yet she continued to deny the use of illegal drugs. In addition, after Kimberley attended substance abuse classes, she noted an "understanding" of why "other addicts" use, but she failed to recognize her own substance use problems. The DCS case manager explained that "even if she's completely unaware of how she is getting [the drugs] into her system, that's still extremely concerning that you don't know how you are ingesting methamphetamine." According to the case manager, methamphetamine is "a very dangerous substance" for children, and "something in [Kimberley's] life obviously has methamphetamine in it and if she doesn't even know what that is, how will she protect the kids from that." Notably, Kimberley does not meaningfully challenge the juvenile court's substance abuse finding on appeal. See Christina G. v. Ariz. Dep't of Econ. Sec., 227 Ariz. 231, n.6 (App. 2011) (failure to develop argument on appeal results in abandonment and waiver).
¶13 Kimberley also contends that the "juvenile court's dependency adjudication was a violation of [her] fundamental rights under the United States and Arizona Constitutions." She maintains DCS "presented no evidence of a sufficiently compelling governmental interest to serve as a valid basis for this dependency adjudication." We disagree.
¶14 "Parents unquestionably have a fundamental liberty interest 'in the care, custody, and management of their children.'" Dep't of Child Safety v. Beene, 235 Ariz. 300, ¶ 13 (App. 2014) (quoting Santosky v. Kramer, 455 U.S. 745, 753 (1982)). However, "DCS has a 'compelling interest in protecting child welfare,' including protecting the best interests of the children." Id. (quoting Ruben M. v. Ariz. Dep't of Econ. Sec., 230 Ariz. 236, ¶ 12 (App. 2012)). As discussed above, Kimberley has a well-documented history of exposing the children to domestic violence, and of methamphetamine use that she continues to deny. These substantiated and unresolved threats to the children are sufficient to support a dependency. See Shella H., 239 Ariz. 47, ¶ 16. Because reasonable evidence supports the dependency adjudication, the juvenile court did not abuse its discretion. See id. ¶ 13.
Disposition
¶15 We affirm the juvenile court's order adjudicating E.S. and S.S. dependent as to Kimberley.