Opinion
2 CA-JV 2023-0008 2 CA-JV 2023-0014
06-01-2023
In re Dependency of T.O. and C.O.,
Southern Arizona Law PLLC, Tucson By Justin D. Gettler Counsel for Appellant Jesus O. Pima County Office of Children's Counsel By David Miller, Tucson Counsel for Appellants T.O. and C.O. 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Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court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. JD20180100 The Honorable Bunkye Olson, Judge Pro Tempore VACATED AND REMANDED
Southern Arizona Law PLLC, Tucson
By Justin D. Gettler
Counsel for Appellant Jesus O.
Pima County Office of Children's Counsel
By David Miller, Tucson
Counsel for Appellants T.O. and C.O.
Kristin K. Mayes, Arizona Attorney General
By Dawn R. Williams, Assistant Attorney General, Tucson
Counsel for Appellee Department of Child Safety
Chief Judge Vasquez authored the decision of the Court, in which Presiding Judge Eppich and Judge Gard concurred.
MEMORANDUM DECISION
VASQUEZ, CHIEF JUDGE:
¶1 Appellants T.O., born July 2011; C.O., born June 2013; and their father, Jesus O., challenge the juvenile court's order adjudicating the children dependent. The Department of Child Safety (DCS) concedes the court abused its discretion in finding the children dependent, and, for the reasons that follow, we agree.
¶2 Under A.R.S. § 8-201(15)(a), a "[d]ependent 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," is "[d]estitute," or "whose home is unfit by reason of abuse, neglect, cruelty or depravity." 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). We view the evidence in the light most favorable to sustaining the court's finding that DCS proved the allegations of the petition by a preponderance of the evidence. Willie G. v. Ariz. Dep't of Econ. Sec., 211 Ariz. 231, ¶ 21 (App. 2005); A.R.S. § 8-844(C)(1) (allegations of dependency petition must be proved by preponderance of evidence). We will affirm the order "unless the findings upon which it is based are clearly erroneous and there is no reasonable evidence" supporting it. In re Pima Cty. Juv. Dependency Action No. 118537 , 185 Ariz. 77, 79 (App. 1994).
¶3 In February 2018, T.O. and C.O. were removed from the custody of their mother, Diana Z., after DCS received reports that Diana neglected the children and had broken into her parents' home, accusing the children's maternal grandfather of sexually abusing the children. DCS investigators found that Diana's home had no running water or power, had "drug paraphernalia laying around," and was "trashed." Diana told DCS that she had not been in contact with Jesus, who was reported to be the children's father, for "about a year."
¶4 DCS filed a dependency petition and petition for paternity, alleging the children were "dependent due to abuse and/or neglect as to Diana" and Jesus. It alleged that Jesus had "abandoned the children," did not have a custody or child support order for them, and neglected them by failing to protect them from Diana's neglect and the maternal grandfather's sexual abuse. The children were adjudicated dependent as to Jesus in September 2018, after he admitted amended allegations. After the parents participated in services, the children were returned to Diana's care, and the dependency was dismissed in October 2019.
¶5 In September 2022, the children were removed from Diana's custody when she was arrested after methamphetamine and paraphernalia were found in her home. The home was in "disarray," with trash, old food, dirty diapers, and other items strewn around. At the time of Diana's arrest, T.O. and C.O. were in school, and they were placed in foster care.
¶6 At the time set for a contested dependency hearing, DCS informed the court that Jesus's home had been inspected and, once DCS could help him procure beds for the children, DCS had "no reason to suspect that there wouldn't be a positive home analysis." DCS asked for a continuation of the hearing, after which it anticipated it "would move for an in-home dependency." The parties also discussed Jesus opening a special paternity action, which would be consolidated with the dependency proceeding, to put a parenting-time plan in place.
¶7 Jesus filed the special paternity action, and he and Diana agreed on a parenting plan. At the next status hearing, DCS reported that Jesus had not yet gotten "everything in his house in order and contact[ed]" DCS, so the home assessment had not been done. Jesus asked the juvenile court to dismiss the dependency, noting that the parenting plan was done and the parents were ready for "final orders." The court declined to do so and set the matter for a contested dependency hearing.
¶8 At the dependency hearing, the family's DCS specialist testified that Jesus had obtained the children's beds and a positive assessment of the home had been done. But she explained that she had continuing concern about Jesus not recognizing substance use in others, so that he might leave the girls in a home with unsafe conditions. The specialist explained that if she had seen Diana's home, she would have been concerned about their safety there; therefore, Jesus should have been concerned. She acknowledged, however, that Jesus had told her he had no knowledge of the state of the home and that Jesus had not been directed to "inspect" Diana's home after the past dependency proceedings. She further testified that she had no personal knowledge of Jesus's interactions with Diana and her home during his drop-offs of the children and that the children would not have told him about the conditions in the home.
¶9 When the DCS investigator was sworn in, the juvenile court stated, "I am inclined to find a dependency, but order an in-home dependency and return the children." The court further indicated to DCS that it should direct its presentation to evidence pertinent to that situation rather than "the reasons that the children came into care." The investigator testified that she too believed Jesus posed a risk to the children "if he is not able to safely protect and identify any possible threats or any safety threats to his children." But, she also testified that Jesus had told her he was unaware of the conditions in Diana's home and that she was also unaware of the type of in-person contact Jesus was having with Diana.
¶10 After the investigator's testimony, the juvenile court noted that only seven minutes remained in the hearing and asked Jesus's counsel if she wished to call him. Counsel noted they could set more time, and the court stated, "[I]f we are going to continue this, I am not going to make any findings today to return the children to father. We can continue it.... I was inclined to order it today and do an in-home dependency." When counsel asked why the court would not order the children returned, the court explained it "was inclined to order that the children be returned to the father with a safety plan," but it did not know when DCS could implement a plan. The court asked if counsel wanted to talk to Jesus as to whether to continue the hearing and went on to state, "I can make the findings at the end of the dependency trial or I can find the dependency and order the children go home." Counsel responded, "I'm feeling a little blackmailed, I guess, Judge." The court explained that had not been its intention, but it was "not inclined to make any orders until the testimony is complete" and that further testimony might lead it to "have different opinions." The parties eventually agreed to extend the hearing to allow Jesus to testify.
¶11 Jesus testified that two other children were currently living with him and had not been removed. He also testified that he had been unaware of the conditions in Diana's home, explaining that he had dropped the children off and "they would come out dressed and they never had [any]thing negative to say." Diana would also come out to speak with him and was "dressed," "looked normal [and] healthy," and did not speak or act unusually. He indicated that although he did not think he needed the classes DCS was recommending, he would take them in order "to learn more."
¶12 After Jesus's testimony he and the children both asked the juvenile court to dismiss the dependency. The court then asked DCS if it could "amend the dependency petition based on lack of parenting orders," and Jesus objected to such an amendment. The court found the original allegations proven, as well as the new allegation that Jesus had not obtained parenting-time orders, and adjudicated the children dependent, ordering an "in-home dependency." This appeal followed.
¶13 On appeal, Jesus and the children challenge the propriety of the juvenile court's having added "a third allegation to the dependency petition." DCS concedes the court's action was in error. Indeed, this court has concluded that a court may not "amend the petition after all the evidence ha[s] been presented . . . without any opportunity for [a parent] to challenge the factual basis for the dependency determination that had not been alleged," because this violates the parent's due process rights and his or her "fundamental liberty interest to parent [the] child." Carolina H. v. Ariz. Dep't of Econ. Sec., 232 Ariz. 569, ¶ 12 (App. 2013).
¶14 DCS also concedes Jesus and the children are correct in claiming that sufficient evidence did not support the juvenile court's finding that the children were dependent. We agree.
¶15 As the parties point out, no evidence supported a finding that Jesus knew or should have known about Diana's "drug use or the condition of her home." As detailed above, evidence at the hearing uniformly established that Jesus had not known, that the children had not told him, and that he had not been in the home. As set forth above, a dependent child is one "whose home is unfit by reason of . . . neglect . . . by a parent." § 8-201(15)(a)(iii). A parent neglects a child by being unwilling or unable to provide the "child with supervision, food, clothing, shelter or medical care." § 8-201(25)(a). In this case, nothing presented to the juvenile court suggested Jesus's own home was unfit or that he was otherwise unwilling to provide for the children. And, the DCS specialist acknowledged that DCS had returned the children to Diana's care without any requirement that Jesus continuously monitor her. She further testified that it would have been inappropriate for Jesus to have questioned the children about their time with Diana and that it was not unusual for him to drop them off for their visits with her. There being no evidence that Jesus was unwilling or unable to properly supervise the children at the time of the dependency hearing, see Francine C. v. Dep't of Child Safety, 249 Ariz. 289, ¶ 35 (App. 2020), the court abused its discretion in finding the children dependent, see Pima Cty. Juv. Dependency Action No. 118537 , 185 Ariz. at 79.
¶16 We vacate the juvenile court's dependency order and remand for further proceedings consistent with this decision.