Timothy I. v. Dcs, J.I. ( 2021 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
TIMOTHY I., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, J.I., Appellees.
No. 1 CA-JV 20-0376
FILED 4-29-2021
Appeal from the Superior Court in Maricopa County
No. JD39753
The Honorable Robert Brooks, Judge
VACATED AND REMANDED
COUNSEL
John L. Popilek, P.C., Scottsdale
By John L. Popilek
Counsel for Appellant
Arizona Attorney General’s Office, Phoenix
By Doriane F. Neaverth
Counsel for Appellee Department of Child Safety
TIMOTHY I. v. DCS, J.I.
Decision of the Court
MEMORANDUM DECISION
Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge Randall M. Howe joined.
C R U Z, Judge:
¶1 Timothy I. (“Father”) appeals the superior court’s order
adjudicating his child, J.I., dependent. For the following reasons, we vacate
and remand.
FACTUAL AND PROCEDURAL HISTORY
¶2 Father and Adreanna M. (“Mother”)1 are the biological
parents of J.I., born in 2015. The Department of Child Safety (“DCS”) had
on ongoing, several-years’ relationship with the family due to reports of
substance abuse and domestic violence. Father was incarcerated for
assaulting Mother in November 2017. Following his release in February
2019, Father moved to Louisiana, while J.I. remained in Arizona with
Mother.
¶3 In August 2020, DCS received a report that Mother was
observed at J.I.’s school struggling to stand, agitated, confused, shaking,
and vomiting into a trash can. In response, DCS visited Mother’s home,
and she appeared to be under the influence of substances. DCS filed a
dependency petition as to both Mother and Father, and removed J.I. from
Mother’s home, along with Mother’s two older children. The children were
placed with a family friend.
¶4 In the petition, DCS alleged J.I. was dependent as to Father
because he was “unwilling or unable to provide the child with proper and
effective parental care and control by failing to provide for the child’s basic
needs, such as, food, shelter, clothing, proper supervision, and/or medical
care.” DCS alleged that Father had not seen J.I. in six months or longer, he
had not provided financial support, and he had sporadic phone contact
with J.I. DCS also alleged Father had a history of substance abuse and
domestic violence, and he was currently residing out of state with a job as
a truck driver that kept him from home for multiple days at a time.
1 Mother is not a party to this appeal.
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Decision of the Court
¶5 A dependency hearing was held in November 2020. DCS
stated its concerns with Father were that he lived out of state, he had
engaged in domestic violence in the past with Mother, and he had left J.I.
in Arizona with Mother with the knowledge that Mother abused
substances. DCS also stated it wanted to rule out the possibility that Father
engages in substance abuse and ensure that if Father is away for work, an
appropriate person would provide care for J.I. in his place. The court stated
that the case was “a relatively close call, perhaps as close as we get in these
types of cases.” Ultimately, however, the court found J.I. dependent as to
Father, briefly noting on the record concerns of unresolved domestic
violence and that it wanted to give Father time to establish his relationship
with J.I.
¶6 Father timely appealed. We have jurisdiction pursuant to
Arizona Revised Statutes (“A.R.S.”) sections 8-235(A), 12-120.21(A)(1), and
12-2101(A)(1).
DISCUSSION
¶7 Father argues there was insufficient evidence to prove J.I. was
dependent. Father contends the evidence presented by DCS was stale and
unrelated to the circumstances at the time of trial.
¶8 For a child to be found dependent, DCS must prove by a
preponderance of the evidence one of the grounds found in A.R.S. § 8-
201(15). A.R.S. § 8-844(C). When the superior court finds that DCS “has
proven the allegations in a dependency petition by a preponderance of the
evidence, it must ‘[s]et forth specific findings of fact in support of a finding
of dependency,’ which ‘shall be in the form of a signed order or contained
in a minute entry.’” Francine C. v. Dep’t of Child Safety, 249 Ariz. 289, 295,
¶ 12 (App. 2020) (quoting Ariz. R. P. Juv. Ct. 55(E)(3)); see also A.R.S. § 8-
844(C)(1)(a)(ii). These requirements are mandatory in every dependency
proceeding, and a party cannot waive the requirement by failing to
properly raise the issue. Id. at 295-98, ¶¶ 12, 15-25. The requirement for
specific findings of fact and conclusions of law exists to allow the appellate
court to assess which allegations were proven and whether the superior
court properly applied the law in making those determinations. Ruben M.
v. Ariz. Dep’t of Econ. Sec., 230 Ariz. 236, 240, ¶ 24 (App. 2012). Meaningful
appellate review requires that the superior court clearly state both its
findings as well as the support for its conclusions. Francine C., 249 Ariz. at
295-96, ¶ 13.
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Decision of the Court
¶9 “[F]indings also serve other important purposes, including
prompt[ing] judges to consider issues more carefully because they are
required to state not only the end result of their inquiry, but the process by
which they reached it.” Logan B. v. Dep’t of Child Safety, 244 Ariz. 532, 538,
¶ 18 (App. 2018) (alteration in original) (internal quotation marks and
citation omitted). This is particularly important when the parties and court
believed this case to be a “close call,” and the court stated, “I will admit I’m
not convinced by [DCS’] evidence here.” It was imperative, then, that the
court issue findings of fact that were sufficiently specific to explain the basis
on which the court found the dependency and the facts used to support its
decision.
¶10 In a signed minute entry issued following trial, the court
stated it was finding a dependency because “[F]ather is unwilling or unable
to provide the child with proper and effective parental care and control by
failing to provide for the child’s needs, such as food, shelter, clothing,
proper supervision, and/or medical care.” This is merely a recitation of the
definition of a “dependent child” and A.R.S. § 8-201(15)(a)(i)-(ii), and the
court failed to explain the facts that supported this finding. The court’s
dependency order lacks findings that are sufficiently specific to permit
effective appellate review.
¶11 “When a court fails to make or makes insufficient findings of
fact and conclusions of law, a reviewing court must tailor the proper
remedy [for] each case.” Francine C., 249 Ariz. at 299, ¶ 27 (internal
quotation marks and citations omitted). Generally, this will require an
appellate court to remand for further findings. Id. However, an appellate
court may affirm without findings if a case does not turn on contested facts,
and the record is so clear that the appellate court can fully understand the
issues raised without findings. Id. Here, however, it is unclear exactly the
basis on which the superior court found a dependency, and the record
contains sufficient contested facts to justify a remand.
¶12 While the signed minute entry makes no express mention of
domestic violence, at trial, the court seemed to imply that it was finding a
dependency, at least in part, based on domestic violence:
My concern here is that [J.I.] is a younger child, and I want to
give you time to establish that relationship; I believe that until
the evidence show[s] that until that relationship is established
and that any concerns about domestic violence are resolved
that there is a potential for her to have some risk. I know that
it would not be directly at your hand, sir. But to make sure
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Decision of the Court
that she is safe with you, I am going to . . . find for today that
[J.I.] is dependent as to [Father].
The court stated it was concerned about the risk of harm to J.I. due to
domestic violence, but then it immediately stated it knew any harm to J.I.
“would not be directly” at the hands of Father. If the court does not believe
Father would act violently towards J.I., it is unclear why the court needed
to ensure “that she is safe with [Father].” If the court was concerned about
J.I.’s potential exposure to domestic violence between Mother and Father,
it was undisputed Mother and Father did not live in the same state and they
had not had any meaningful, face-to-face contact with one another since
Father’s conviction in 2017. Father also claimed to have taken domestic
violence classes while in prison.
¶13 While “domestic violence need not be continuous or actively
occurring at the time of the adjudication hearing to support a finding of
dependency,” a dependency adjudication must be “based upon the
circumstances existing at the time of the adjudication hearing” and not
merely on past circumstances. Shella H. v. Dep’t of Child Safety, 239 Ariz. 47,
50-51, ¶¶ 12, 16 (App. 2016). DCS presented no evidence that there
currently existed a substantiated or unresolved threat of domestic violence.
See id. The allegations of domestic violence presented, without more,
would have been insufficient to support a finding of dependency, anyway.
¶14 Additionally, DCS alleged Father had seen J.I. only three
times since he moved to Louisiana, while Father testified that he had visited
J.I. six or seven times. Father claimed to regularly talk on the phone with
J.I., send gifts, and send about $200 each month in financial support. Father
also testified that he has a home, a stable job, and he participates in regular
drug testing for his job. A DCS caseworker testified that J.I. “expresses
great joy and happiness when talking about her father,” and “does wish to
continue to have a relationship with him to include physical visitation and
phone calls when possible.” While DCS stated Father refused its offer to
transfer J.I. to Louisiana, Father denied declining the interstate compact.
Father testified that he declined DCS’ offer to move J.I. to a relative within
Arizona, as he preferred to keep J.I. with her brothers at this time.
However, Father stated that “if the time comes, and I can take her out-of-
state, . . . I’m definitely for that.” Father alleged that his mom and sister,
J.I.’s paternal grandmother and paternal aunt, were willing to move nearby
to assist with J.I. while he was away for work. Father also testified that his
work was very family-oriented and willing to work with him and
potentially allow him to drive local routes so that he is home on a more
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Decision of the Court
regular basis. Given the contested facts in this case, we are unable to affirm
without the aid of factual findings and conclusions of law.
CONCLUSION
¶15 For the foregoing reasons, we vacate and remand.
AMY M. WOOD • Clerk of the Court
FILED: AA
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