Opinion
No. 1 CA-JV 16-0485
05-02-2017
ZAVION H., Appellant, v. DEPARTMENT OF CHILD SAFETY, M.W., Appellees.
COUNSEL John L. Popilek, P.C., Scottsdale By John L. Popilek Counsel for Appellant Arizona Attorney General's Office, Phoenix By Amber E. Pershon Counsel for Appellees
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. JD30607
The Honorable Sally Schneider Duncan, Judge
AFFIRMED
COUNSEL John L. Popilek, P.C., Scottsdale
By John L. Popilek
Counsel for Appellant Arizona Attorney General's Office, Phoenix
By Amber E. Pershon
Counsel for Appellees
MEMORANDUM DECISION
Presiding Judge Randall M. Howe delivered the decision of the Court, in which Judge Lawrence F. Winthrop and Judge Jon W. Thompson joined. HOWE, Judge:
¶1 Zavion H. ("Father") appeals the juvenile court's order adjudicating his child, M.W., dependent as to him. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Before M.W.'s birth, M.W.'s mother ("Mother") asked Father for assistance in obtaining an abortion but Father refused. Mother gave birth to M.W. in August 2007. Father met M.W. for the first time two years later when Mother asked Father for child support money. Father gave Mother money for M.W. and Mother did not contact Father again until she needed further assistance.
The juvenile court also adjudicated M.W. dependent as to Mother, who is not a party to this appeal. --------
¶3 Mother did not contact Father again until roughly two years later. Father agreed to watch M.W. for three days because he wanted M.W. to get to know his other children. Mother failed to pick up M.W. on the scheduled date so M.W. stayed with Father for a week. During that week, Father was unable to locate Mother, so he called the police and the Department of Child Safety (the "Department"). According to Father, the police and the Department told him that they could not help him because he had yet to establish paternity to M.W. The Department explained to Father that he could initiate a proceeding to establish paternity. Father did not initiate any proceeding, however, because he located Mother. Father saw M.W. one more time before moving to Texas with his other children in 2013.
¶4 In June 2015, M.W.'s guardian ad litem petitioned for a private dependency as to Mother after Mother abandoned M.W. The petition alleged that Mother would leave M.W. with various persons and was unable to care for M.W. because she was unemployed, homeless, and had a history of incarceration. The petition did not include Father because his whereabouts and relation to M.W. at the time were unknown. The Department substituted as petitioner in November 2015 and located Father in March 2016, who then established paternity. After Father established his paternity to M.W., the Department amended the initial dependency petition to include Father. The Department alleged that M.W. was dependent as to Father because he knew of her existence, failed to protect her from Mother's neglect, and neglected her by failing to provide for her basic needs.
¶5 During this time, M.W. resided in several group homes and often displayed negative behaviors. While at one group home, M.W. had over 50 negative incidents "regarding property damages, physical assault and high levels of intensifying behaviors and conduct." These behaviors caused her to be removed from two different group homes. Shortly thereafter, the Department gave Father a service letter with the case worker's contact information and Father began to have phone contact with M.W. Father also underwent a home study assessment to comply with the Interstate Compact for the Placement of Children ("ICPC") so that M.W. could potentially live with him in Texas.
¶6 The Department and Father took part in a dependency mediation to resolve certain issues before the dependency adjudication hearing. At the mediation, the Department informed Father that he could telephonically attend M.W.'s child and family team services ("CFTs"). By this time, the ICPC home study that Father completed was approved.
¶7 At the dependency adjudication hearing, Father testified that one reason his relationship with Mother ended was because Mother abused prescription medication. Father also acknowledged that he knew Mother "pawned" M.W. off on other people for extended time periods. By the time of the hearing, Father had yet to attend any CFTs. Father stated that he did not know when the CFTs were held but admitted that he never called or emailed the Department to ask about this service. Additionally, Father understood that M.W.'s case plan required that he participate in in-person visits to help M.W. transition from living at the group home to living with Father. Yet Father failed to have any in-person visits with M.W. Father stated that he was supposed to visit M.W. around the time of the dependency adjudication hearing; however, that did not happen because he canceled his trip to Arizona.
¶8 The evidence at the hearing showed that Father and M.W. got along well and that M.W. enjoyed talking with Father. Father called M.W. roughly 15 times in the two months preceding the dependency adjudication hearing. Although Father knew that he needed to visit in person to help with the transition, he stated that he believed that his relationship with M.W. did not need any additional time to develop. When asked if he ever sent letters, cards, or gifts to M.W., Father denied knowing how to do that, despite the Department providing him with a service letter containing the case worker's contact information.
¶9 After the hearing, the juvenile court found M.W. dependent as to Father. The court stated that Father knew that he was M.W.'s father, treated M.W. as his child, knew Mother had a drug problem, knew Mother pawned M.W. off, and yet did not seek to secure M.W.'s safety. The court found that the allegations in the dependency petition were true by a preponderance of the evidence. Additionally, the juvenile court stated that it believed the service letter the Department provided had directed Father to send all correspondence to the Department for it to be delivered to M.W. and that Father needed to be more engaged with the Department. Father timely appealed.
DISCUSSION
¶10 Father argues that insufficient evidence existed at the time of the dependency hearing to warrant a neglect finding. We review a dependency order for an abuse of discretion and defer to the juvenile court's ability to weigh and analyze the evidence. Shella H. v. Dep't of Child Safety, 239 Ariz. 47, 50 ¶ 13, 366 P.3d 106, 109 (App. 2016). "Thus, we will not disturb a dependency adjudication for insufficient evidence unless no reasonable evidence supports it." Louis C. v. Dep't of Child Safety, 237 Ariz. 484, 488 ¶ 12, 353 P.3d 364, 368 (App. 2015). Because sufficient evidence existed at the time of the dependency hearing to establish neglect, the juvenile court did not err.
¶11 A dependent child is one "[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" as well as one "whose home is unfit by reason of . . . neglect." A.R.S. § 8-201(15)(a)(i), (iii). Neglect means the inability or unwillingness of a parent to provide their child with "supervision, food, clothing, shelter or medical care if that inability or unwillingness causes unreasonable risk of harm to the child's health or welfare." A.R.S. § 8-201(25)(a).
¶12 Sufficient evidence supports the juvenile court's ruling. At the time of the dependency adjudication hearing, Father had yet to fully engage in M.W.'s case plan. The Department explained to Father at the mediation that he could attend M.W.'s CFTs but Father never attended. Father never visited M.W. from the time that he established paternity until the dependency adjudication hearing. Moreover, although Father stated that he was unaware he could send letters, pictures, and gifts to M.W., the juvenile court specifically found that the service letter the Department provided directed Father to send any correspondence through the case worker for M.W.
¶13 Father argues that because he established paternity before the dependency adjudication hearing, his failure to establish paternity while living in Arizona should not be held against him. But Father's establishment of paternity before the dependency adjudication hearing does not negate Father's role in how M.W. came into the Department's care. Father admitted during the hearing that he knew Mother abused prescription medication and that she "pawned" M.W. off on other people. Although Father knew this before moving to Texas, he failed to follow the Department's advice and initiate a proceeding to establish paternity, which would have protected M.W. from Mother's abandonment and neglect.
¶14 Father contends that the evidence for a neglect finding needs to be considered at the time of the dependency hearing, Shella H., 239 Ariz. at 48 ¶ 1, 366 P.3d at 107, and that no evidence existed to support the juvenile court's ruling here. Specifically, Father argues that the Department failed to provide any relevant evidence during the dependency adjudication hearing. This is untrue. The Department provided evidence that Father (1) did not attend any CFTs, (2) did not have any in-person visits with M.W. even though he understood that the Department required such visitation to successfully transition M.W. to Father's care, and (3) communicated with M.W. on the phone no more than twice a week and failed to send her any letters, pictures, or gifts during the entirety of the case. Accordingly, the juvenile court did not abuse its discretion by finding M.W. dependent as to Father at the time of the dependency adjudication hearing.
CONCLUSION
¶15 For the foregoing reasons, we affirm.