Opinion
No. 2 CA-JV 2019-0036 No. 2 CA-JV 2019-0041 (Consolidated)
07-18-2019
COUNSEL Law Office of Ransom Young P.L.L.C., Tucson By Ransom Young Counsel for Appellant Tia S. The Huff Law Firm PLLC, Tucson By Daniel R. Huff Counsel for Appellant Louis T. Mark Brnovich, Arizona Attorney General By Michelle R. Nimmo, Assistant Attorney General, Tucson Counsel for Appellee Department of Child Safety
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f); Ariz. R. P. Juv. Ct. 103(G). Appeal from the Superior Court in Pima County
No. JD20180627
The Honorable Ken Sanders, Judge Pro Tempore
AFFIRMED
COUNSEL Law Office of Ransom Young P.L.L.C., Tucson
By Ransom Young
Counsel for Appellant Tia S. The Huff Law Firm PLLC, Tucson
By Daniel R. Huff
Counsel for Appellant Louis T. Mark Brnovich, Arizona Attorney General
By Michelle R. Nimmo, Assistant Attorney General, Tucson
Counsel for Appellee Department of Child Safety
MEMORANDUM DECISION
Chief Judge Vásquez authored the decision of the Court, in which Presiding Judge Staring and Judge Brearcliffe concurred. VÁSQUEZ, Chief Judge:
¶1 Tia S. and Louis T. appeal from the juvenile court's March 2019 order adjudicating their daughter, T.T., born in July 2004, a dependent child. Finding no error, we affirm.
We granted Louis's motion to consolidate the parents' appeals and to join in Tia's opening brief.
¶2 A dependent child includes one "[i]n need of proper and effective parental care and control . . . who has no parent . . . willing to exercise or capable of exercising such care and control," A.R.S. § 8-201(15)(a)(i), and also includes a child "whose home is unfit by reason of abuse, neglect, cruelty or depravity by a parent," § 8-201(15)(a)(iii). The statute also defines neglect in relevant part as "[t]he inability or unwillingness of a parent . . . of a child to provide that child with supervision . . . if that inability or unwillingness causes unreasonable risk of harm to the child's health or welfare." § 8-201(25)(a). The allegations in a dependency petition must be proven by a preponderance of the evidence, A.R.S. § 8-844(C), and, because the primary concern in a dependency proceeding is the best interests of the child, "the juvenile court is vested with a great deal of discretion," Willie G. v. Ariz. Dep't of Econ. Sec., 211 Ariz. 231, ¶ 21 (App. 2005) (quoting Ariz. Dep't of Econ. Sec. v. Superior Court, 178 Ariz. 236, 239 (App. 1994)). We defer 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.
¶3 On appeal, we view the evidence in the light most favorable to affirming the factual findings upon which the juvenile court's order is based. Willie G., 211 Ariz. 231, ¶ 21. In December 2018, the Department of Child Safety (DCS) took custody of then-fourteen-year-old T.T. and filed a dependency petition based on "abuse and/or neglect" after T.T. "was caught in a prostitution sex trafficking sting." In February 2019, the parents participated in a facilitated settlement conference, and they agreed there was a sufficient factual basis for a dependency but did not agree on the legal basis for that finding, which they addressed at a contested dependency hearing in March 2019.
It is undisputed that T.T. ran away multiple times, that she became a victim of sex trafficking and engaged in prostitution, and that the parents were unable to control her behavior or to keep her safe.
¶4 At the hearing, DCS asked the juvenile court to adjudicate T.T. dependent based on "abuse [or] neglect," § 8-201(15)(a)(iii), while the parents argued the court should base the adjudication on their inability or unwillingness to provide T.T. with "proper and effective parental care and control," § 8-201(15)(a)(i), without reference to "neglect." The court pointed out the similarity between the language in subsections one and three, noting that both subsections "hinge on an ability or willingness of the parent to provide effective parental care and control." It also referred to the definition of "[n]eglect" set forth in § 8-201(25)(a). The court then asked the parents to address the comments it had made about the statute; Tia responded that although she had not "willfully neglect[ed]" T.T., "at the end of the day she was unable to control her daughter" or "to physically keep her . . . in a place that would be safe for her," conduct she asserted did not constitute neglect.
¶5 The juvenile court then determined "that despite the parents' best efforts, they were simply unable to exercise proper supervision" of T.T. or "to keep her safe and in control," conclusions supported by the record and the parents' own admissions. Noting that the general definition of a dependent child found in § 8-201(15)(a)(i) includes the "neglect component" found in § 8-201(15)(a)(iii), as defined in § 8-201(25)(a), the court adjudicated T.T. dependent based on "neglect."
¶6 On appeal, the parents do not appear to challenge the fact that T.T. was adjudicated dependent, nor do they question the evidence the juvenile court considered, which, as previously noted, included their own admissions that they were unable to control T.T. or keep her safe. Instead, they contend the court incorrectly adjudicated T.T. dependent under § 8-201(15)(a)(i) by relying on the definition of neglect found in § 8-201(25)(a). Acknowledging that the definition of neglect is "very similar[]" to the definition of a dependent child in § 8-201(15)(a)(i), the parents argue that the former is more explicit in that it addresses the situation where a parent's inability or unwillingness to provide the child with "supervision, food, clothing, shelter or medical care . . . causes unreasonable risk of harm to the child's health or welfare."
¶7 The parents further assert that by incorporating the definition of neglect into § 8-201(15)(a)(i) rather than § 8-201(15)(a)(iii), the juvenile court essentially rendered the definition in § 8-201(25)(a) "redundant and superfluous" and "cast[] doubt on any meaningful purpose fulfilled" by § 8-201(15)(a)(iii). They also contend that if the court adjudicated T.T. dependent based "solely" on the parents' inability to "exercis[e] proper and effective parental care and control," as set forth in § 8-201(15)(a)(i), "then no finding of neglect is necessary or proper." They ask that we remand and direct the court "to make a finding of dependency based on a meaningful operation of the legislature's statutory scheme."
We decline to address whether the juvenile court did, in fact, incorporate the language of § 8-201(25)(a) into § 8-201(15)(a)(i).
In light of our ruling, we decline the parents' request that we engage in a de novo review of the juvenile court's interpretation of § 8-201(15)(a). --------
¶8 The two statutory provisions, § 8-201(15)(a)(i) and (iii), are directed at two different circumstances: subsection one describes a child who is dependent because the child is "[i]n need of proper and effective parental care and control," and subsection three describes a child who is dependent because the child's home is unfit for any number of reasons, including neglect, but also abuse, cruelty, or depravity by a parent, conduct which need not be directed at the child. Section 8-201(25)(a) more broadly provides the definition of neglect, as that term is used in the statute generally. That definition certainly includes similar language as the grounds for a dependency stated in § 8-201(15)(a)(i), but it also provides a much broader concept of neglect beyond just a lack of proper parental care and control. So, while a child may be dependent due to neglect for the purposes of § 8-201(15)(a) in a number of ways, one way is by the failure or unwillingness of a parent to provide her with proper care and control.
¶9 And although it is not entirely clear which subsection of the statute the juvenile court relied upon in its ruling, it is clear that the uncontested evidence established that T.T., who was involved in sex trafficking and prostitution, is a dependent child, based on her parents' admissions that they are unable to protect or control her. See § 8-201(15)(a). And notably, despite the parents' claim that the court incorrectly adjudicated T.T. dependent due to neglect under § 8-201(15)(a)(i), they nonetheless assert, "weighing all the evidence and using the facts presented," the court here "could make a determination that T.T. is dependent due to neglect" if the parents were unable to provide her with proper supervision, causing "an unreasonable risk of harm to [her] health or welfare."
¶10 Because the juvenile court did, in fact, correctly determine that, although "[t]he parents were willing to provide proper parental care and control over their daughter" and "[d]espite [their] best efforts," they were "unable to exercise proper supervision" over her or "to keep her safe and in control," we will not disturb the dependency adjudication. See Shella H., 239 Ariz. 47, ¶ 13 (appellate court will only disturb dependency adjudication if no reasonable evidence supports it). Moreover, the parents have not directed us to any authority requiring a juvenile court to provide the specific statutory basis for its dependency adjudication. Cf. Ariz. R. P. Juv. Ct. 55(E) (court required to provide factual findings supporting dependency "as defined by law" in dependency-adjudication order).
¶11 Accordingly, we affirm the juvenile court's order adjudicating T.T. dependent.