Opinion
2 CA-JV 2023-0020
09-05-2023
In re Dependency of D.P.,
Cochise County Office of the Legal Advocate, Bisbee By Xochitl Orozco, Legal Advocate Counsel for Appellant Kristin K. Mayes, Arizona Attorney General By Autumn Spritzer, 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Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court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 Cochise County No. JD202200069 The Honorable John F. Kelliher Jr., Judge
Cochise County Office of the Legal Advocate, Bisbee By Xochitl Orozco, Legal Advocate Counsel for Appellant
Kristin K. Mayes, Arizona Attorney General By Autumn Spritzer, Assistant Attorney General, Tucson Counsel for Appellee Department of Child Safety
Judge Gard authored the decision of the Court, in which Judge Kelly and Judge O'Neil concurred.
MEMORANDUM DECISION
GARD, JUDGE
¶1 In this appeal, Caekara B. challenges the juvenile court's order adjudicating her son D.P., born July 2007, dependent. She argues the court abused its discretion by finding D.P. dependent on the ground that she had neglected him and that the court violated her due process rights by cutting short testimony at the dependency hearing. Finding no error, we affirm.
¶2 On review of a dependency adjudication, we view the evidence in the light most favorable to affirming the court's findings. Willie G. v. Ariz. Dep't of Econ. Sec., 211 Ariz. 231, ¶ 21 (App. 2005). In October 2022, the Department of Child Safety (DCS) received a report of neglect as to D.P. from his grandmother. He had been left at a hospital "due to being highly intoxicated on alcohol and marijuana." DCS determined D.P. had been living with his grandmother, who had a power of attorney, while Caekara lived in Illinois. Caekara had sent D.P. to Arizona in August "to stay with his friends and attend school," but he had been told to leave their homes and had gone to live with his grandmother. His grandmother told DCS that she could not "safely parent him," and Caekara reported she could not bring him back to Illinois. Because there was "no parent or legal caregiver" willing or able to care for D.P., he was taken into DCS custody.
¶3 In November 2022, DCS filed a dependency petition alleging Caekara had neglected D.P. by sending him to Arizona, where he had no stable home, by failing to address his substance use, and by being "unwilling and unable" to have him return to her care. After a contested dependency trial in January 2023, the juvenile court adjudicated D.P. dependent as to Caekara.
¶4 A dependent child includes 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 whose "home is unfit by reason of abuse, neglect, cruelty or depravity by a parent." A.R.S. § 8-201(15)(a)(i), (iii). DCS was required to prove the allegations in its dependency petition by a preponderance of the evidence. See A.R.S. § 8-844(C). 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). Accordingly, "[w]e will only disturb a dependency adjudication if no reasonable evidence supports it." Id.
¶5 Caekara first argues the juvenile court "abused its discretion when it found neglect as a basis for the dependency." She contends "[t]here was insufficient evidence to find D.P. dependent" because at the time he was removed he had been provided food, shelter, and supervision. Caekara also alleges the court "did not look at the situation at the time of the dependency adjudication." This argument, however, overlooks the evidence presented at the dependency hearing.
¶6 When D.P. was removed from his grandmother's care, she was unwilling to continue to care for him, his mother reported that her home in Illinois was unsafe for him, and DCS could find no other family placements. After his removal, although DCS offered her transportation, D.P.'s grandmother had only visited him in his placement once and was not participating in team meetings about his care. Caekara continued to tell DCS that her home in Illinois was not safe for D.P. until December 2022, at which point she agreed to begin the process of a home study in Illinois. Her caseworker testified, however, that she still had continuing concerns about Caekara parenting D.P. based on her failure to adequately address D.P.'s mental and physical health concerns. Thus, the evidence at the dependency hearing supported the court's determination that no home had been deemed safe as a placement for D.P. See A.R.S. § 8-201(25)(a) (generally, neglect means parent, guardian, or custodian's inability or unwillingness "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").
¶7 Caekara also alleges the juvenile court violated her right to due process because it did not allow her "to present her full case or full arguments." She bases her argument on the court's denial of her request to continue the dependency hearing to allow D.P.'s grandmother to testify. We review an order denying a continuance for an abuse of discretion. See Yavapai Cnty. Juv. Action No. J-9365 , 157 Ariz. 497, 499 (App. 1988). Whether a party is afforded due process presents a question of law reviewed de novo. Jeff D. v. Dep't of Child Safety, 239 Ariz. 205, ¶ 6 (App. 2016).
¶8 At the start of the hearing, the parties discussed who was present telephonically and whether anyone had invoked the rule of exclusion of witnesses. See Ariz. R. Evid. 615. D.P.'s grandmother was on the phone, despite there having been no motion for her to appear telephonically, because her back was injured. Caekara's counsel explained she had listed the grandmother as a witness, but intended "only [to] call her as an impeachment witness as to the police report." DCS indicated it would object to the grandmother testifying telephonically if Caekara sought to call her.
¶9 After a lunch break in the proceeding, approximately forty-five minutes before the scheduled end of the hearing, Caekara requested a continuance to allow D.P.'s grandmother to testify in person. She explained that she believed "the home situation" with his grandmother and "what she is willing to do," as well as testimony about steps Caekara had taken to ensure D.P.'s care with her, was "relevant to the dependency finding." The juvenile court, however, stated that it did not think such evidence was relevant to the adjudication as to Caekara because, regardless of the proposed testimony, "a safety plan . . . would need to be started and worked" before D.P. could be placed with his grandmother. DCS indicated it would be willing to agree to telephonic testimony, but the court again stated D.P.'s grandmother would not "testify to anything relevant" based on Caekara's representations.
¶10 The juvenile court did, however, allow Caekara to make an offer of proof. In that offer, Caekara explained that D.P.'s grandmother would testify about the arrangements made when D.P. came to Arizona, the fitness of her home, and her current willingness to have him live with her. The court stated that, based on the offer of proof, "There's nothing [it was] going to . . . hear that [was] going to change . . . what [DCS] ha[d] presented." It then found D.P. dependent.
¶11 As DCS points out, Caekara did not present a due process argument in support of her request to continue the hearing. Likewise, she did not object on due process grounds to comments by the juvenile court that she now argues denied her the opportunity to be heard. She has not argued on appeal that the court committed fundamental error. Rather, she contends in her reply brief that her arguments below were sufficient to preserve the issue because their context allowed DCS to address a due process issue and the court to rule on that issue. But the portions of the record she cites to support her position do not establish that she preserved a due process claim.
¶12 Caekara first cites an exchange with the juvenile court in addressing an objection to a matter unrelated to the grandmother's testimony. Because it was unrelated to the subject testimony, that exchange could not have given DCS or the court the opportunity to consider a due process argument as to the request to continue. Second, Caekara points to her counsel's stating, "I haven't finished" in response to the court's indicating its belief that testimony from D.P.'s grandmother would not be relevant to its dependency determination, based on "what [it had] heard so far" and what Caekara had offered. We cannot agree that a statement that counsel was not yet "finished" was sufficient to preserve a due process argument. It is true that "a specific word is not required to make an objection or to preserve an issue for appeal." State v. Foshay, 239 Ariz. 271, ¶ 27 (App. 2016). But "a general objection," such as counsel's statement that she was not finished, "is insufficient to preserve an issue for appeal." State v. Lopez, 217 Ariz. 433, ¶ 4 (App. 2008).
¶13 In any event, following that exchange, the juvenile court allowed Caekara to make a formal offer of proof, after which it determined that nothing she had offered would "change" the dependency determination, based on the evidence already presented by DCS. Cf. State v. Nilsen, 134 Ariz. 433, 435-36 (App. 1982) (no error refusing to grant evidentiary hearing on "due process defense" when court "carefully reviewed the appellants' offers of proof and arguments"), aff'd as modified, 134 Ariz. 431 (1983). In view of the testimony that D.P. could not then have been returned to his grandmother, the court's determination was supported by reasonable evidence. Shella H., 239 Ariz. 47, ¶ 13.
¶14 We affirm the juvenile court's order adjudicating D.P. dependent as to Caekara.