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Williams v. Henson

Court of Appeals of Arizona, Second Division
Sep 30, 2024
2 CA-CV 2024-0108 (Ariz. Ct. App. Sep. 30, 2024)

Opinion

2 CA-CV 2024-0108

09-30-2024

Kenni Williams, Plaintiff/Appellee, v. Michelle Henson, Defendant/Appellant.

Michelle Henson, Tucson In Propria Persona


Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court

Appeal from the Superior Court in Pima County No. DV20232138 The Honorable Lisa Abrams, Judge AFFIRMED

Michelle Henson, Tucson

In Propria Persona

Judge Brearcliffe authored the decision of the Court, in which Presiding Judge Sklar and Vice Chief Judge Eppich concurred.

MEMORANDUM DECISION

BREARCLIFFE, JUDGE:

¶1 Michelle Henson appeals an order of protection issued in favor of Kenni Williams on behalf of Henson's mother. Williams failed to file a responsive brief in this matter, and we could, in our discretion, deem that failure a confession of error. See Gonzales v. Gonzales, 134 Ariz. 437, 437 (App. 1982) ("Although we may regard [the] failure to respond as a confession of reversible error, we are not required to do so.") We do not do so, however, given the failure of Henson to identify any error by the trial court. For the following reasons, we affirm.

Factual and Procedural Background

¶2 We view the facts "in the light most favorable to upholding the trial court's ruling." Mahar v. Acuna, 230 Ariz. 530, ¶ 2 (App. 2012). In December 2023, Williams, an investigator for Adult Protective Services, sought an order of protection against Henson on behalf of A.H., Henson's mother. The petition for the protective order alleged: A.H. "does not have capacity and can not even feed herself. [A.H.] is very medically and mentally impaired and does not have the ability to make decisions." It asserted that Henson "continues to pull [A.H.] out of the Hospital against medical advice" and then "leaves her to live home alone with no services" and sometimes no food. It further claimed that Henson tells A.H. "the food is poisoned at the hospital so [A.H.] does not eat," "cancels all services lined up to assist [A.H.] such []as home health, and care giving," and "does not give [A.H.] her medications." It further stated that "[t]his pattern has continued for over a year and [A.H.] is so medically frail at this time, her death is imminent if she is not allowed [proper] medical care."

¶3 The petition further asserted that, despite A.H. "bleeding internally" and Henson being "instructed" to seek emergent care for A.H., Henson "refuses and then pulls [A.H.] out of the hospital against all medical advice." It asserted that "[s]ervices have been offered that will not cost [A.H.] any money and they are still refused putting [A.H.] at continued risk." It claimed that A.H.'s "son and Husband both starved to death in the same home that [Henson] leaves her in" and that A.H. "does not have the ability to call for help due to her impairments."

¶4 An ex parte order of protection was issued, and a contested hearing was held. Williams, Henson, and an employee of the Pima County Public Fiduciary testified. At the conclusion of the hearing, the trial court recited its findings on the record and also detailed them in a contemporaneously signed order.

The Pima County Public Fiduciary was appointed guardian for A.H. in January 2024.

¶5 The trial court found that Williams had proved her allegations by a preponderance of the evidence and that an order of protection barring Henson's contact with A.H. was necessary for A.H.'s protection. It found that Henson had committed acts of domestic violence against A.H., namely abuse of a vulnerable adult under A.R.S. § 13-3623.

¶6 The trial court specifically found that A.H. is "medically compromised," weighing only eighty pounds and, that she had been diagnosed with "failure to thrive," "abdominal aneurysm," "rectal prolapse, and [a] life-threatening blood pressure condition." The court found that A.H. has "moderate mental impairment" and "becomes confused at times." The court also noted that A.H. had previously lived with her son, who died in 2023, due, in part, to "failure to thrive," weighing "just over 90 pounds . . . at his death."

¶7 As to Henson's acts, the trial court found that she had repeatedly removed A.H. from the hospital over the course of a year, on one occasion removing A.H. from the hospital against medical advice after rejecting recommendations of palliative and hospice care and home health care for A.H. It found that the reason for the removal may have been financial. The court identified another occasion on which Henson removed A.H. from the hospital and left her "alone at [her] residence." A.H.'s home is over an hour away from Henson's home, has no properly functioning telephone, and, on at least one occasion, was described as having human "feces all over it." The court also found that Henson had told A.H. "that hospital food is poisoned" and that this "caused [A.H.] to not eat while at the hospital."

¶8 The trial court affirmed the order of protection, barring Henson from having contact with A.H., subject to any allowance for contact provided by A.H.'s guardian, and barring her from A.H.'s home. Henson appealed. We have jurisdiction pursuant to A.R.S. § 12-2101(A). See also Ariz. R. Protective Order P. 42(a)(2), (b)(2).

Discussion

¶9 We review the decision to continue an order of protection for an abuse of discretion. Cardoso v. Soldo, 230 Ariz. 614, ¶ 16 (App. 2012). The trial court abuses its discretion when it makes an error of law in reaching a discretionary conclusion or "when the record, viewed in the light most favorable to upholding the trial court's decision, is devoid of competent evidence to support the decision." Mahar v. Acuna, 230 Ariz. 530, ¶ 14 (App. 2012) (quoting Hurd v. Hurd, 223 Ariz. 48, ¶ 19 (App. 2009)). We review any questions of law de novo. In re Marriage of Pownall, 197 Ariz. 577, ¶ 7 (App. 2000).

¶10 On appeal, Henson chiefly objects to the testimony and evidence below, claiming it was false, and generally asserting that it does not justify an order of protection. She additionally argues that the trial court was "biased" against her.

I. Insufficient Evidence

¶11 A defendant is entitled to a hearing to contest an ex parte order of protection. A.R.S. § 13-3602(L). But the trial court will affirm an ex parte order at that hearing if the plaintiff shows by a preponderance of the evidence "that there is reasonable cause to believe . . . [t]he defendant may commit" or "has committed an act of domestic violence within the past year." § 13-3602(E)(1), (2); see also Ariz. R. Protective Order P. 38(g)(3). On appeal, it is not enough, in challenging the sufficiency of the evidence supporting an order of protection, to assert that there was contrary evidence. The trial court is in the best position to weigh evidence and determine which witnesses to believe and which piece of competing evidence to credit; we will not reweigh the evidence on appeal. Cardoso, 230 Ariz. 614, ¶ 17; Savord v. Morton, 235 Ariz. 256, ¶ 10 (App. 2014). We will affirm if the record contains competent evidence to support the court's decision. Mahar, 230 Ariz. 530, ¶ 14.

¶12 The trial court here, following the contested hearing, made the principal finding in the order of protection that it had "reasonable cause to believe that [Henson] may commit an act of domestic violence or has committed an act of domestic violence within the past year." The court's relevant remaining findings are supported by the record. Williams' testimony-both based on her first-hand observations and her review of the Adult Protective Services records-demonstrated Henson had committed acts against A.H. that, at a minimum, placed A.H. "in a situation" where her health was endangered, and had threatened to commit acts doing the same in the future. See § 13-3623(A). Henson's removal of A.H. from the hospital against medical advice, refusal of medical care when the need for medical treatment was indicated, and effort to place A.H. back in her home, which, based on the testimony, is not suitable of habitation, were sufficient to justify the order of protection. See id. Nonetheless, each of the court's relevant findings were sufficiently supported, albeit contested by Henson. The court did not err.

II. Judicial Bias

¶13 As to her remaining argument, Henson asserts that "the judge was prejud[iced] in favor of" Williams. She fails to demonstrate any bias.

¶14 In Arizona, "[a] party challenging a trial judge's impartiality must overcome the presumption that trial judges are 'free of bias and prejudice.'" Simon v. Maricopa Med. Ctr., 225 Ariz. 55, ¶ 29 (App. 2010) (quoting State v. Rossi, 154 Ariz. 245, 247 (1987)). Judicial rulings alone do not support a finding of bias or partiality without a showing of an extrajudicial source of bias or a deep-seated favoritism. State v. Schackart, 190 Ariz. 238, 257 (1997). Henson has failed to demonstrate by competent evidence or reference to the record that the trial court was biased against her.

¶15 Henson asserts that Williams "provided insufficient evidence, actually no evidence, and [Henson] was not allowed to testify in response to an accusation, which excluded evidence unfairly." She thus maintains the "ruling was arbitrary and not based on evidence." Specifically, Henson asserts: (1) the judge "heard that [Williams] was an [Adult Protective Services] Investigator and decided that anything she said must be the truth"; (2) the judge "didn't even look at the admitted evidence"; (3) the judge "didn't remember" some testimony; and (4) "[t]he judge failed to demand that [Williams] produce any evidence that would support her claims."

¶16 As to the first and second bases, Henson does not demonstrate, based on the record, that the judge "decided that anything" said by the witness "must be the truth" or that the judge did not "look at the admitted evidence." This is purely speculation, and speculation does not establish a claim of bias. See Costa v. Mackey, 227 Ariz. 565, ¶ 12 (App. 2011) (challenge to judge for cause not warranted if based merely on "speculation, suspicion, apprehension, or imagination" (quoting State v. Ellison, 213 Ariz. 116, ¶ 37 (2006))). Moreover, without indication to the contrary, we assume the trial court "fully considered" all the evidence before it. See Fuentes v. Fuentes, 209 Ariz. 51, 55-56, ¶ 18 (App. 2004).

¶17 As to the third basis-the judge's purported failure to remember testimony-Henson does not demonstrate when that occurred. And without more-and no more is shown-this claim does not support a conclusion of judicial bias. To the extent the judge failed to include in her ruling any recitation of evidence, or misstated any evidence, such was immaterial given our finding of sufficient, competent evidence to support the order of protection.

¶18 As to the final basis, a trial court is not required to "demand" that a party produce particular evidence: the court merely may rule against a party who has failed to produce sufficient evidence to support a claim. A court's "failure" to demand particular evidence of a party does not amount to judicial bias. Moreover, as we determined above, there was sufficient evidence in the record, chiefly in the form of witness testimony, to support the order of protection without the need for any additional evidence.

Disposition

¶19 For the foregoing reasons, we affirm the trial court's order of protection.


Summaries of

Williams v. Henson

Court of Appeals of Arizona, Second Division
Sep 30, 2024
2 CA-CV 2024-0108 (Ariz. Ct. App. Sep. 30, 2024)
Case details for

Williams v. Henson

Case Details

Full title:Kenni Williams, Plaintiff/Appellee, v. Michelle Henson…

Court:Court of Appeals of Arizona, Second Division

Date published: Sep 30, 2024

Citations

2 CA-CV 2024-0108 (Ariz. Ct. App. Sep. 30, 2024)