Opinion
2 CA-JV 2022-0023
06-29-2022
Charleen G., Appellant, v. Department of Child Safety, A.G., C.C., and J.C., Appellees.
Sarah Michele Martin, Tucson Counsel for Appellant Mark Brnovich, Arizona Attorney General By James W. Rappaport, 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Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court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. JD20140450 The Honorable Laurie B. San Angelo, Judge
Sarah Michele Martin, Tucson Counsel for Appellant
Mark Brnovich, Arizona Attorney General By James W. Rappaport, Assistant Attorney General, Tucson Counsel for Appellee Department of Child Safety
Presiding Judge Eppich authored the decision of the Court, in which Vice Chief Judge Staring and Judge Brearcliffe concurred.
MEMORANDUM DECISION
EPPICH, Presiding Judge
¶1 Charleen G. appeals from the juvenile court's February 2022 ruling adjudicating her children, Amy (born in April 2010), Clark (born in October 2017), and Joseph (born in June 2019), dependent based on neglect.She challenges the sufficiency of the evidence to support the dependency adjudication. For the following reasons, we affirm.
For ease of reference, we use pseudonyms for each of the children throughout this decision.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to upholding the juvenile court's findings. See Louis C. v. Dep't of Child Safety, 237 Ariz. 484, ¶ 2 (App. 2015). Charleen has five children, listed in order from oldest to youngest: Amy, Ashley (born in April 2014), Jordan (born in April 2016), Clark, and Joseph. Anthony K. is the father of Amy, and David H. is the father of Ashley. Christian C., with whom Charleen currently resides, is the father of Jordan, Clark, and Joseph.
Anthony entered a no contest plea, and the court adjudicated Amy dependent as to Anthony. He is not a party to this appeal.
As part of this proceeding, the juvenile court also adjudicated Clark and Joseph dependent as to Christian. He is not a party to his appeal.
¶3 In June 2014, the Department of Child Safety (DCS) received a report that Amy's paternal uncle had sexually abused her, and, during the investigation that followed, Amy tested positive for methamphetamine. Thereafter, DCS filed a dependency petition as to Amy and Ashley, alleging abuse and neglect. In September 2014, Charleen admitted the allegations in an amended petition, and the children were adjudicated dependent as to her. Over the next two years, Charleen participated in a number of services, including supervised visitation; psychological evaluation; individual counseling and therapy; parenting education; substance abuse treatment, education, and relapse prevention; random drug testing; home visits; and parent support coaching. The dependency was terminated in July 2016.
¶4 Less than a year later, in January 2017, DCS received two separate reports regarding the family-first, that Amy, Ashley, and Jordan had been left home alone while Charleen went shopping, and, second, that Amy had been spanked with a belt, resulting in bruises. The following month, DCS filed a second dependency petition, alleging that Christian had abused the children and that Charleen had failed to protect them. In March 2017, Charleen admitted the allegations in the petition, and the juvenile court adjudicated Amy, Ashley, and Jordan dependent as to her. Several months later, DCS filed an additional dependency petition as to Clark after he was born. Charleen admitted those allegations, and the court adjudicated Clark dependent as to her in December 2017. Clark remained in Charleen's care, and Amy was also returned to Charleen in May 2018, but Ashley and Jordan continued living with a maternal great aunt.
¶5 In November 2018, DCS received a report that Jordan, who was apparently home for a visit, was "wandering around" Charleen's apartment complex. An unidentified individual found Jordan and called the police. Charleen reported to the officers that she had allowed Jordan, Ashley, and Amy to play "on the grassy area right outside of their apartment" and that the last time she had seen them was approximately twenty minutes before because she was inside caring for Clark. The police later located Ashley and Amy in a neighbor's apartment. DCS continued to offer Charleen services, including individual and group therapy; parent-child relationship assessment and therapy; in-home services; recovery coaching; parenting classes; daycare; supervised visitation; and case management. The parties agreed to name the maternal great aunt as permanent guardian of Ashley and Jordan, which the court subsequently ordered in July 2019. That month, the court also dismissed the dependency.
¶6 In July 2021, DCS received a report that Clark was transported by ambulance to a hospital after Charleen could not wake him. It was later determined that Clark had ingested THC gummies. Charleen and Christian ("the parents") were unable to explain how Clark had obtained the gummies, which Christian previously used for pain management and stored on a top shelf in their bedroom closet. Clark was ultimately released from the hospital and suffered no permanent damage.
¶7 DCS took custody of Amy, Clark, and Joseph and subsequently filed a dependency petition, alleging, in part, that Charleen had been a party to two prior dependencies, that she has a "history of failing to properly supervise her children," and that she was unaware how or when Clark had accessed and ingested THC gummies. Clark and Joseph were ultimately placed in a foster home in Fort Mohave, while Amy was placed in a group home in Tucson. The parents provided hair and urine samples, which showed no drug use. A dependency hearing was set for November 2021.
¶8 At the end of August, the parents filed a motion for return of the children, pursuant to Rule 59, Ariz. R. P. Juv. Ct. The juvenile court held a hearing approximately three weeks later, but the parties needed additional time to present their evidence, and, due to scheduling conflicts among the court and counsel, the hearing was continued in thirty- and sixty-minute segments over several weeks.
¶9 In October 2021, Christian was hospitalized after an automobile accident. Because he was unable to assist his attorney or to testify, the juvenile court continued both the hearing on the Rule 59 motion and the dependency hearing. And because the hearing on the Rule 59 motion ultimately coincided with the dependency hearing, the court combined the matters to allow it to consider the evidence presented as to both.
¶10 In January 2022, anticipating Clark and Joseph's current placement would be disrupted, the juvenile court ordered that the boys be returned home to the parents "on a temporary basis" with a safety plan and other appropriate services in place, provided the only other placement option was "the welcome center or a group home" or if the boys would be separated into different foster homes. Shortly thereafter, the court also ordered that Amy be returned home to the parents as a "temporary placement" once the nurturing parenting program was in place and under the same safety plan that had been implemented for the boys. The court heard the final testimony and took the Rule 59 motion and the dependency adjudication under advisement at the beginning of February 2022.
¶11 Later that month, the juvenile court issued its under-advisement ruling. It found Charleen had neglected the children and adjudicated Amy, Clark, and Joseph dependent as to her. With respect to the Rule 59 motion, the court explained that it "require[d] evidence of how the children are doing and how the parents are cooperating with the safety plan and services under the temporary orders." The court indicated it would rule on the Rule 59 motion after hearing that evidence at the disposition hearing. This appeal followed.
Discussion
¶12 Charleen argues, "The juvenile court's dependency adjudication was an abuse of discretion, unsupported by any evidence, contrary to the legislative purpose of our Arizona child welfare laws, and a violation of [her] statutorily and constitutionally protected rights." At bottom, she appears to be challenging the sufficiency of the evidence to support the dependency adjudication. We review a dependency adjudication for an abuse of discretion, "deferring 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). "We will only disturb a dependency adjudication if no reasonable evidence supports it." Id.
¶13 As defined in A.R.S. § 8-201(15)(a), a dependent child includes one:
(i) In need of proper and effective parental care and control and 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.
... (iii) . . . [W]hose 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.
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 unreasonable risk of harm to the child's health or welfare." § 8-201(25)(a). The juvenile court "must determine whether a child is dependent based upon the circumstances existing at the time of the adjudication hearing." Shella H., 239 Ariz. 47, ¶ 12.
¶14 In its February 2022 ruling, the juvenile court found that Charleen had neglected the children based on Clark's ingestion of THC gummies. The court explained that she had "failed to ensure that the gummies were stored safely from the children" and had "failed to properly supervise th[e] children, causing an unreasonable risk of harm to their health and welfare." The court also noted that a lack of proper supervision had been a concern in the 2017 dependency and that there had been a "substantiated report" to DCS in November 2018 when Jordan was seen "wandering around" the apartment complex. Finally, the court noted that Charleen remains in a relationship with Christian, who "continues to exercise poor judgment and decision-making," based on his "serious" automobile accident.
¶15 Charleen argues, "There was no evidence whatsoever of abuse or neglect of any of their children." She maintains that there was "no evidence of substance abuse, of violence, or of criminal behavior." In addition, she challenges the juvenile court's finding regarding Christian's automobile accident, asserting he was not "cited, arrested, or found to be at fault" and the children were not with him at the time.
¶16 First, the juvenile court did not make a finding of substance abuse, violence, or criminal behavior-except as it related to Christian's automobile accident-nor was it required to. See § 8-201(15)(a), (25)(a). Instead, the court found DCS had proven the allegations in the dependency petition-specifically, that Charleen had neglected the children by failing to properly supervise them, most recently when Clark had consumed THC gummies. Sufficient evidence supports the court's findings. See Shella H., 239 Ariz. 47, ¶ 13.
¶17 The parents placed THC gummies, which look like candy, next to actual candy; the children knew where the candy was stored; and the gummies were in a "pouch makeup bag" with a zipper, which Clark generally knew how to open. The parents were both home at the time of the incident and were not sure how or when it happened, despite being in the bedroom, where the gummies had been stored in the closet. Although the gummies were removed from the home thereafter, Charleen still had not taken full responsibility for her role in the incident.
¶18 In addition, as the juvenile court noted, a failure to properly supervise was a concern in the 2017 dependency, which began after then six-year-old Amy had been left home alone with Ashley and Jordan and during which two-year-old Jordan was found "wandering around" the apartment complex. As the DCS caseworker discovered during this proceeding, Charleen continues to leave Amy home by herself and with her younger siblings. Charleen's conduct establishes a pattern of inadequate supervision, which as the caseworker pointed out, is particularly concerning because she previously participated in-and apparently benefited from-services but DCS had to intervene again.
¶19 Second, the juvenile court's finding with respect to Christian's automobile accident was not based upon him being cited, arrested, or at fault. Instead, the court observed that Christian was driving on a suspended license-an undisputed fact-and that his license had been suspended because of speeding. In addition, the court found that Christian was speeding at the time of the accident. Regardless of whether the children were with him, Christian's conduct, which left him hospitalized for four days with fractured ribs, a concussion, and his front row of teeth knocked out, demonstrates "poor judgment and decision-making," as the court found. Cf. Joelle M. v. Dep't of Child Safety, 245 Ariz. 525, ¶¶ 15-16 (App. 2018) (mother's "unreliable, unresponsive and careless" behavior established her inability to provide proper and effective parental care and control). And his conduct is particularly noteworthy because this accident occurred the weekend before the scheduled dependency hearing and at the time he and Charleen were seeking return of the children.
¶20 As to Charleen's argument that her "statutorily and constitutionally protected rights" were violated, she seems to point to the fact that Clark and Joseph were placed at a foster home in Fort Mohave, six hours away from her and also Amy, who was placed at a group home in Tucson. But the caseworker explained that there was no closer foster home available where the children could be placed together. See A.R.S. § 8-513(D) (requiring DCS to make "reasonable" efforts to place siblings together). And DCS arranged telephonic and in-person visits between Amy and her brothers, as well as the parents. See id. In addition, when the Fort Mohave placement was going to disrupt, the juvenile court ordered the boys returned home to the parents on a temporary basis, if no other suitable arrangements could be made. Shortly thereafter, the court also ordered Amy returned home on a temporary basis.
¶21 Charleen also suggests that the juvenile court's "refusal to rule" on the Rule 59 motion "for over six months" violated her state and federal constitutional rights. But it is not clear what remedy she seeks, given that the children were returned home in January 2022, although the court had not technically ruled on the motion. Cf. ASH, Inc. v. Mesa Unified Sch. Dist. No. 4, 138 Ariz. 190, 191-92 (App. 1983) (plaintiff's appeal moot where challenged contract had been fully performed and plaintiff had not effectively preserved issue on appeal by failing to seek available procedural remedies to stay performance of contract). In any event, a Rule 59 motion is generally reviewable by special action. See Ariz. R. P. Spec. Act. 3(a); see also J.W. v. Dep't of Child Safety, 252 Ariz. 184, ¶ 7 (App. 2021); Brionna J. v. Dep't of Child Safety, 247 Ariz. 346, ¶¶ 10-12 (App. 2019). But Charleen does not meaningfully develop her argument. See Ariz. R. Civ. App. P. 13(a)(7)(A) (opening brief must contain argument with supporting reasons, legal citations, and record references); see also Ariz. R. P. Juv. Ct. 106(A). Notably, she does not even discuss the basis of the motion-Rule 59.Accordingly, we decline to exercise special action jurisdiction and do not address this argument further. See J.W., 252 Ariz. 184, ¶ 11 ("We may reject an argument based on lack of proper and meaningful argument alone."); Arpaio v. Figueroa, 229 Ariz. 444, ¶ 5 (App. 2012) (decision to accept special action jurisdiction is highly discretionary).
Rule 59(B) requires the juvenile court to set a hearing within thirty days of a request for return of the child. Here, the court set its first hearing within that time period, but because the parties needed additional time to present their evidence, the hearing was continued multiple times over several months. In order to achieve speedy resolution of these requests in the future, we encourage the court and counsel to prioritize these hearings and to limit the presentation of evidence as appropriate. See Dep't of Child Safety v. Stocking-Tate, 247 Ariz. 108, ¶ 20 (App. 2019) (Rule 59 requires court "to act quickly," provides parent with "reasonable opportunity to present argument and evidence," and represents "careful balance" between competing interests of protecting child's health and welfare and parent's right to custody and control).
Disposition
¶22 For the foregoing reasons, we affirm the juvenile court's ruling adjudicating Amy, Clark, and Joseph dependent as to Charleen.