Opinion
2 CA-JV 2023-0113
03-13-2024
In re Dependency of K.B. and M.B.,
The Huff Law Firm, Tucson By Laura J. Huff Counsel for Appellant Kristin K. Mayes, Arizona Attorney General By Ingeet P. Pandya, 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Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court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. JD20230069 The Honorable Janet C. Bostwick, Judge
The Huff Law Firm, Tucson By Laura J. Huff Counsel for Appellant
Kristin K. Mayes, Arizona Attorney General By Ingeet P. Pandya, Assistant Attorney General, Tucson Counsel for Appellee Department of Child Safety
Judge Gard authored the decision of the Court, in which Presiding Judge Eppich and Chief Judge Vasquez concurred.
MEMORANDUM DECISION
GARD, JUDGE
¶1 Andrew B. appeals from the juvenile court's order adjudicating his son, K.B., born in February 2009, and daughter, M.B., born in July 2013, dependent. For the following reasons, 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). From August 2022 through February 2023, the Department of Child Safety (DCS) received five reports of neglect concerning K.B. and M.B.'s family. In August, Andrew and the children's mother, Julie B., were arguing when Andrew told K.B. and M.B. to "pack their shit and get the fuck out," forcing them to leave with Julie. In response, K.B. stated that he would rather commit suicide than go with Julie. In December, Julie smacked K.B. in the back of the head, and K.B. responded by punching Julie multiple times. Later that month, Julie admitted she could not control M.B.'s violent behaviors, which included biting, scratching, and hitting. In January, Julie took M.B. to the hospital for suicidal ideations. Doctors recommended level one inpatient treatment for M.B., but Andrew refused, blaming M.B.'s behavior on Julie. In February, Julie called the Crisis Response Center due to M.B.'s continued aggressive behaviors, but, in response, Julie was verbally aggressive with DCS workers.
The juvenile court also adjudicated the children dependent as to their mother after she pled no contest to the allegations. She is not a party to this appeal.
¶3 DCS removed the children in February 2023. Later that month, DCS filed a dependency petition, alleging that K.B. and M.B. were dependent as to Andrew due to neglect. Specifically, DCS asserted that Andrew was unable to provide proper and effective parental care and control due to domestic violence and that he had failed to provide for the children's basic needs, in part, because "the dysfunction in the home triggers behavioral issues for the children." DCS offered Andrew a variety of services, including the Nurturing Parenting Program, drug testing, anger management, parenting time, mental health resources, and ongoing case management. Andrew, however, indicated that he would not participate in domestic violence services.
¶4 K.B. has been diagnosed with attention-deficit/hyperactivity disorder, autism, mild cognitive impairment, adjustment disorder with mixed disturbance of emotions and conduct, and major depressive disorder. M.B. has been diagnosed with bipolar disorder and intermittent explosive disorder.
¶5 After a contested hearing that began in May and ended in August, the juvenile court adjudicated the children dependent. The court explained, "Grounds for the dependency include a pattern of domestic violence and aggressiveness that has affected and involved the minors, and includes both parents as documented in the court reports and the testimony, which include altercations that escalate to the extent of police contact several times since 2022 began ...." Recognizing that Andrew had begun participating in services by the end of the hearing, the court further noted that he was not yet able to control his "aggressive issues" and that he needed additional time for services and to benefit therefrom to enable him and Julie to co-parent. This appeal followed.
Discussion
¶6 Andrew argues that the juvenile court erred in adjudicating the children dependent as to him "when the circumstances that brought the children to DCS's attention no longer existed at the time of the adjudication." "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 the 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).
¶7 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). The petitioner-in this case, DCS-must prove the allegations in a dependency proceeding by a preponderance of the evidence based on the circumstances existing at the time of the hearing. A.R.S. § 8-844(C); see Shella H., 239 Ariz. 47, ¶ 12.
¶8 Andrew contends that DCS "took custody of the children because of allegations that [he and Julie] did not adequately address the children's behavioral-health needs and because the parents had a history of domestic violence." He maintains "the evidence shows that [they] did address the children's behavioral-health needs" and "that the parents have not engaged in domestic violence since their separation in August 2022." He additionally asserts that there was no evidence he "had ever been physically aggressive or inappropriate with either child."
¶9 Andrew misconstrues the dependency allegations. While the dependency petition alleged a history of domestic violence between Andrew and Julie, DCS was also concerned that Andrew was unable to control his anger and impulses and that "the children have learned their behaviors through their parents' inability to manage their own emotional needs appropriately." Consistent with those allegations, the juvenile court determined that the children were dependent as to Andrew because of his unresolved history of domestic violence and aggressiveness. Cf. In re Maricopa Cnty. Juv. Action No. JD-6123 , 191 Ariz. 384, 392 (App. 1997) (father's involvement in "emotionally and physically violent relationships" supported dependency). Notably, "domestic violence need not be continuous or actively occurring at the time of the adjudication hearing to support a finding of dependency." Shella H., 239 Ariz. 47, ¶ 16. "[T]he substantiated and unresolved threat is sufficient," particularly "where, as here, the parent denies the alleged conduct." Id.
¶10 As to the children's behavioral health needs, the evidence shows the parents were attempting to address them. However, Andrew did not appear to comprehend the severity of the situation or how his behaviors contributed to K.B.'s and M.B.'s problems.
¶11 Julie and Andrew's relationship included physical violence and intimidation dating back to 2010. The children were consistently exposed to these behaviors essentially their entire lives. In turn, K.M. and M.B. were both aggressive and had extensive behavioral health needs. Both Julie and the paternal grandmother recognized that the children's behaviors were, at least in part, the result of their exposure to domestic violence between Andrew and Julie. Andrew, however, was adamant that he played no role in the children's conduct.
¶12 Throughout the dependency proceeding, Andrew continued to display aggressive, intimidating, and antagonistic conduct, which, as the DCS caseworker explained, is concerning because he is modeling unhealthy behavior for K.B. and M.B. DCS asked Andrew to participate in various behavioral health and anger management services, but he had barely started individual therapy by the end of the contested hearing in August 2023. Andrew also continued to deny the scope of his aggression, stating that "DCS has a misconception of me."
¶13 Although Andrew and Julie were separated at the time of the contested hearing, their divorce proceedings had only recently begun, and there were no official parenting time orders in place. As the juvenile court noted, Andrew needed additional time to benefit from services so that he and Julie could successfully co-parent rather than falling back into their pattern of fighting and domestic violence. Because reasonable evidence supports the dependency adjudication, the court did not err. See Louis C., 237 Ariz. 484, ¶ 12.
Disposition
¶14 For the foregoing reasons, we affirm the juvenile court's order adjudicating K.B. and M.B. dependent as to Andrew.