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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
SHELLA H., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, J.G., G.H., A.H., A.H., I.H., Appellees.
No. 1 CA-JV 15-0140
FILED 10-20-2015
Appeal from the Superior Court in Maricopa County
No. JD29771
The Honorable Connie Contes, Judge
AFFIRMED
COUNSEL
Maricopa County Public Advocate, Mesa
By David C. Lieb
Counsel for Appellant
Arizona Attorney General’s Office, Phoenix
By JoAnn Falgout
Counsel for Appellee
SHELLA H. v. DCS, et al.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Kenton D. Jones delivered the decision of the Court, in
which Judge Samuel A. Thumma and Judge Peter B. Swann joined.
J O N E S, Judge:
¶1 Shella H. (Mother) appeals the juvenile court’s order
adjudicating J.R.H., G.R.H., A.D.H.H., A.H., and I.H. (the Children)
dependent. For the following reasons, we affirm.
FACTS1 AND PROCEDURAL HISTORY
¶2 In January 2015, Mother left the Children, ages eleven, ten,
seven, two, and six months, unsupervised in a hotel room where they were
living, while she was passed out in the bathroom after vomiting blood on
the floor and sink. When the Children found Mother unresponsive, they
contacted a maternal aunt who called emergency services. Mother was
admitted to the hospital where subsequent testing revealed her blood
alcohol concentration was 0.24. Because the Children were unattended and
their father (Father) was incarcerated in California at the time,2 the
Department of Child Safety (DCS) assumed temporary custody of the
Children placing them in licensed foster homes.
¶3 Subsequent investigation revealed a significant history of
domestic violence between Mother and Father. In fact, Father’s recent
incarceration resulted from an arrest in December 2014 after he choked
Mother, punched her in the face four times, and “held her hostage” in the
presence of the Children. When admitted at the hospital in January 2015,
Mother reported she suffered several broken ribs from the altercation and
1 “On review of an adjudication of dependency, we view the evidence
in the light most favorable to sustaining the juvenile court’s findings.”
Willie G. v. Ariz. Dep’t of Econ. Sec., 211 Ariz. 231, 235, ¶ 21 (App. 2005).
2 The Children were adjudicated dependent as to Father on February
12, 2015 on the grounds of neglect, mental health issues, domestic violence,
and substance abuse. He did not challenge this determination and is not a
party to this appeal.
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SHELLA H. v. DCS, et al.
Decision of the Court
moved to Arizona to “escape” the abusive relationship. Father pled guilty
to five counts of child endangerment on the same day the Children
discovered their Mother unconscious in a pool of blood and vomit,3 and
was sentenced to probation for two years plus time served. Mother told a
DCS caseworker that the “domestic violence relationship” with Father had
lasted for fifteen years with several arrests of, and orders of protection
against, one or the other. The three oldest children confirmed regular
physical arguments between their parents which had sometimes resulted
in physical injury to the Children as well. They also reported Father having
hit them with belts and other objects and slapped them across the face.
¶4 DCS was further concerned about the effect of the family’s
transient lifestyle on the Children. The parents reported moving every few
days from hotels, the family vehicle, and “the woods.” At the adjudication
hearing, Mother was unable to provide a physical address for any prior
residence.4 Aside from J.R.H. attending kindergarten for a short time, the
Children had never attended school; neither had they received any regular
medical care for at least the past six years. The two youngest children, along
with a deceased son, were born in hotels. Additionally, Mother had a long
history of alcohol abuse, and Father reported using marijuana on a regular
basis.
¶5 DCS filed a petition alleging the Children were dependent as
to Mother as a result of substance abuse, domestic violence, and neglect. At
the dependency adjudication hearing held in March 2015, DCS called
Mother as its first witness.
¶6 Mother testified the Children were removed while she was in
the hospital because she was “sick” and throwing up blood but denied it
resulted from her alcohol consumption. When questioned regarding the
domestic violence with Father, Mother stated she “would agree that yes,
there’s been arguing,” but it rose to the level of physical violence on only a
3 Mother initially testified her sister picked the Children up from
school on this day, where they were later removed by DCS, suggesting the
Children were never at the hotel with her. This statement is contrary to her
later testimony that her children had not attended school since her now-
sixth grader went to kindergarten.
4 Again, Mother testified inconsistently, first asserting she lived in
Portland for the past eleven years, and then stating she moved to Arizona
when her now seven-year-old son was born.
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SHELLA H. v. DCS, et al.
Decision of the Court
single occasion, in December 2014.5 She also denied sustaining any injury
or seeking medical treatment after the incident, maintaining Father “was
not convicted of that,” and his child endangerment convictions “w[ere] for
yelling in front of them.” Mother testified she did obtain an order of
protection against Father, but only because she was advised by DCS to do
so, and expressed having no concern, at any time, for her safety or that of
the Children. She further denied making any of the comments to the
contrary that were reflected in reports from medical personnel and the DCS
caseworker.
¶7 On cross-examination, Mother’s counsel focused her
presentation upon evidence suggesting out-of-home care was no longer
necessary. Mother provided significant evidence and testimony describing
her compliance with random urinalysis testing demonstrating she was
substance free and her participation in parent aide services, substance
abuse treatment, AA meetings, domestic violence counseling, couples
counseling, parenting classes, and visitation. Her counsel argued DCS
could, and should, continue to provide substance abuse testing and
treatment while the Children remained in her care and implement a safety
plan to address the domestic violence. Mother further argued DCS failed
to present any evidence the Children were actually harmed by her
religious-based objections to traditional schooling and medical care.
¶8 The current DCS case manager confirmed DCS had requested
Mother participate in urinalysis testing, substance abuse treatment, and
parent aide services, that these services were initiated quickly after the
Children were removed, and Mother had not tested positive for any
substances since the removal. The juvenile court sustained only one
relevance objection, determining that whether DCS requested Mother
complete domestic violence counseling was not relevant to the dependency
adjudication.
¶9 After taking the matter under advisement, the juvenile court
issued a ruling finding DCS had proven by a preponderance of the evidence
the Children were dependent as to Mother on all three grounds alleged.
Mother timely appealed. We have jurisdiction pursuant to Arizona Revised
5 This position is inconsistent with prior documented arrests and
reports to child protective service agencies in other states, as well as
Mother’s initial request that Father not participate in the team decision-
making meeting.
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SHELLA H. v. DCS, et al.
Decision of the Court
Statutes (A.R.S.) sections 8-235(A),6 12-120.21(A)(1), and -2101(A)(1) and
Arizona Rules of Procedure for the Juvenile Court 103(A). See Yavapai Cnty.
Juv. Action No. J-8545, 140 Ariz. 10, 14 (1984) (holding “orders declaring
children dependent . . . are final orders subject to appeal by aggrieved
parties”).
DISCUSSION
¶10 Mother argues the juvenile court erred in considering
whether the Children were dependent at the time they were removed by
DCS, rather than whether the Children remained dependent at the time of
the adjudication. DCS concedes on appeal that the court must determine
whether a child is dependent under the circumstances existing at the time
of the adjudication hearing. See A.R.S. § 8-201(14)(a)(i) (defining a
dependent child in the present tense as one who “has no parent or guardian,
or one who has no parent or guardian willing to exercise or capable of
exercising such care and control”) (emphasis added), (iii) (defining a
dependent child in the present tense as one whose “home is unfit by reason
of abuse, neglect, cruelty or depravity by a parent”) (emphasis added); see
also A.R.S. § 8-844(B) (requiring the court to consider present circumstances
that would “eliminate the need for removal of the child”), (C)(1) (directing
the court to determine “that the allegations contained in the petition are
true”) (emphasis added). DCS argues, however, the court applied the
correct standard in adjudicating the Children dependent by reason of
domestic violence, and because the order is supported by reasonable
evidence, we should affirm.
¶11 A finding of dependency requires proof by a preponderance
of the evidence. A.R.S. § 8-844(C)(1). We review an order adjudicating a
child dependent 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, 488, ¶ 12 (App. 2015). We will therefore only disturb a
dependency adjudication if no reasonable evidence supports it. Id. (citing
Willie G., 211 Ariz. at 235, ¶ 21).
¶12 A child may be dependent where the parent is unwilling or
unable to protect the child from abuse. See Pima Cnty. Juv. Action No. J-
77188, 139 Ariz. 389, 392 (App. 1983) (“Effective parental care clearly
implies prevention of sexual as well as other physical abuse.”); see also Pima
Cnty. Juv. Dependency Action No. 96290, 162 Ariz. 601, 605 (App. 1990) (“A
6 Absent material revisions from the relevant date, we cite a statute’s
current version.
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SHELLA H. v. DCS, et al.
Decision of the Court
finding of dependency may be predicated on one parent’s failure to prevent
abuse by another parent.”) (citing Pima Cnty. Juv. Dependency Action No.
97247, 158 Ariz. 55, 57 (App. 1988)). In adjudicating the Children dependent
as to Mother on the ground of domestic violence, the juvenile court relied
on the following findings:
Mother admitted she and Father had been in a violent relationship
for fifteen years and also identified two instances, one in 2012 and
one in 2014, where either Mother or Father had been arrested for
domestic violence.
The Children witnessed Mother and Father engaging in violent
altercations many times, which included watching Father choke
Mother, and reported that Father is scary during these events.
A.D.H.H. suffered a broken wrist on one occasion when he
attempted to intervene on Mother’s behalf during an altercation.
Mother voluntarily released the order of protection she obtained
against Father following the December 2014 altercation after only
one day.
¶13 Importantly, the juvenile court made a specific finding that
“during her own testimony, [M]other attempted to minimize the length,
scope, and nature of domestic violence history between [M]other and
[F]ather.” We will not second-guess the court’s assessment of Mother’s
credibility as a witness. See Christina G. v. Ariz. Dep’t of Econ. Sec., 227 Ariz.
231, 234, ¶ 13 (App. 2011) (“The juvenile court is in the best position to
weigh the evidence, observe the parties, judge the credibility of witnesses,
and make appropriate findings.”) (citing Jesus M. v. Ariz. Dep’t of Econ. Sec.,
203 Ariz. 278, 280, ¶ 4 (App. 2002)). Moreover, this finding contradicts
Mother’s contention that, had she been granted greater opportunity, she
would have been able to demonstrate that the circumstances giving rise to
the removal on the basis of domestic violence had been eliminated by the
time of the adjudication hearing. Mother testified first, before any
discussion regarding the applicable standard; she was granted opportunity
to discuss, at length, her sobriety, her housing situation, and her
participation in services including domestic violence counseling.7 Yet,
7 The court sustained only one of DCS’s objections to the relevance of
the testimony sought to be elicited by Mother’s attorney, determining that
whether Mother was requested by DCS to complete domestic violence
6
SHELLA H. v. DCS, et al.
Decision of the Court
when given the opportunity to establish that the Children would be safe in
her care, she chose instead to test the court’s tolerance by presenting
incredulous testimony.
¶14 And, contrary to Mother’s assertion otherwise, domestic
violence need not be continuous or actively occurring at the time of the
adjudication hearing to support a finding of dependency on these grounds;
the substantiated and unresolved threat is sufficient. See No. 96290, 162
Ariz. at 604 (rejecting argument that juvenile court erred in adjudicating a
child dependent when he was born after events giving rise to a finding of
dependency for his older siblings, and noting instead that “[a]ssuming that
the state can prove the conditions creating the dependency as to the older
children, and that those conditions pose an imminent risk of harm to the
newborn, the statute does not preclude the state from acting to protect the
newborn until a specific injury has been inflicted upon him”). This is
particularly true where, as here, the parent simply denies the alleged
conduct. As we have previously held, this Court:
will not hesitate to affirm a finding of dependency as to
parents who presently deny that they are responsible for past
abuse and neglect for the obvious reason that such denial of
responsibility supports a finding that their children do not
have parents presently willing to or capable of exercising
proper and effective parental care and control. To hold
otherwise would permit an abusive or neglectful parent to
defeat an allegation of dependency by the mere passage of
time.
Id.
¶15 Although the juvenile court erred in considering the
circumstances at the time the dependency was filed rather than at the time
of the adjudication hearing, viewing the evidence in the light most
favorable to upholding its ruling, we nonetheless conclude substantial
evidence exists to support a finding that domestic violence regularly
occurred between Mother and Father, in the presence of the Children, and
sometimes causing serious physical injury to both Mother and the Children,
and at the time of the hearing, Father had been released from jail to serve
counseling was not relevant to the dependency adjudication. Mother has
not and cannot establish prejudice from preclusion of that information
where she had already presented testimony and evidence that she had self-
referred and was actively engaged in domestic violence counseling.
7
SHELLA H. v. DCS, et al.
Decision of the Court
his term of probation and remained a present and viable threat to the well-
being of the Children. Substantial evidence also supports a determination
that Mother failed to even acknowledge, let alone address, these concerns
through her blanket denial of the circumstances. This assessment provides
an additional basis to find she is presently unable or unwilling to parent
and protect the Children. Thus, regardless of how the court heard,
weighed, and interpreted the evidence, its specific findings are supported
by the record and are objectively sufficient to show DCS proved, by a
preponderance of the evidence, that the Children were dependent as to
Mother on this ground.
CONCLUSION
¶16 The order of the juvenile court finding the Children
dependent as to Mother is affirmed.
:ama
8