Yasser A. v. Dcs, T.Y. ( 2022 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
YASSER A., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, T.Y., Appellees.
No. 1 CA-JV 21-0272
FILED 2-24-2022
Appeal from the Superior Court in Maricopa County
No. JD40547
The Honorable Julie Ann Mata, Judge
DEPENDENCY VACATED; REMANDED WITH DIRECTIONS
COUNSEL
Maricopa County Legal Defender’s Office, Phoenix
By Jamie R. Heller
Counsel for Appellant
Arizona Attorney General’s Office, Tucson
By Jennifer R. Blum
Counsel for Appellee
YASSER A. v. DCS, T.Y.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Cynthia J. Bailey delivered the decision of the Court, in
which Judge Peter B. Swann and Judge D. Steven Williams joined.
B A I L E Y, Judge:
¶1 Yasser A. (“Father”) appeals the superior court’s order
finding his daughter, T.Y. (“the child”), dependent as to him based on
abandonment. Father argues that (1) the court abused its discretion by
holding an accelerated hearing and proceeding in absentia, (2) his
constitutional right to parent was violated, (3) the court’s factual findings
were insufficient, and (4) the evidence did not and could not support a
finding of abandonment or neglect. The Department of Child Safety
(“DCS”) agrees that the court’s factual findings were insufficient and
requests that we remand the matter for the superior court to make the
required factual findings. Because we agree with Father that the record
lacks substantial evidence from which the court could find the child
dependent as to Father based on abandonment or neglect, we vacate the
dependency finding and remand with directions to dismiss the dependency
petition.
FACTS AND PROCEDURAL HISTORY
¶2 Father and Zahra A. (“Mother”) are the married parents of the
child, who was born in 2017. Mother has two children from a prior
relationship, born in 2006 and 2007. The three children lived with Mother,
while Father was living and working at the American Hospital in Dubai.
¶3 In February 2021, Mother engaged in physical violence
against one of the older children and later physically attacked the children’s
maternal aunt, which led to Mother’s arrest. DCS took the children into its
temporary physical custody, placed the children with the maternal
grandmother, and filed a dependency petition. The petition alleged the
children were dependent as to Mother based on abuse and/or neglect
stemming from Mother’s domestic violence, substance abuse, mental health
issues, and failure to provide needed health care for the children. DCS had
not yet located Father, and the petition alleged he had neglected the child
due to abandonment and failing to provide for the child’s basic needs.
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Decision of the Court
¶4 DCS eventually located Father and learned he was “unable to
come to the United States because he is not a citizen and does not have
natural citizenship.” DCS was therefore unable to complete a full
assessment with him, although based on interviews with the children, DCS
learned that the children had resided for a time with Father in Dubai, Father
was positively attached to the children, and he had expressed love,
sensitivity, and protectiveness toward them. Father also was providing
financial support for the child and began participating in weekly
supervised video/phone calls with the child. DCS reported he was
“consistent with these visits” and “reported to be understanding and kind
during the contact.”
¶5 After being located, Father appeared telephonically at every
conference/hearing, including an April 27 pretrial conference, at which the
court found the children dependent as to Mother; a June 2 continued initial
dependency hearing, where Father entered a denial to the allegations in the
petition; and a June 30 pretrial conference, at which the court set another
pretrial conference for August 24 and set the dependency adjudication
hearing for August 31.1
¶6 Father failed to appear telephonically at the August 24
pretrial conference, however, and at DCS’s counsel’s request, and over
Father’s counsel’s objection, the court conducted an accelerated
dependency hearing. At that hearing, the juvenile court admitted DCS’s
August 9 progress report in evidence.
¶7 The report indicated Father left the child in Mother’s care
while he resides in Dubai; that although he has previously visited the
United States, he was unable to be present for the child’s birth and is
currently unable to come to this country; and although he “makes an effort
to maintain frequent communication with [the child],” the report opines
that Father is not yet fully a part of the child’s life, as he is “in the action
stage of change” and is “trying and actively taking steps to be a part of his
daughter’s life.” At the hearing, Mother’s counsel expressed Mother’s
generalized concern about the child going to live with Father “in another
country.”
1 Meanwhile, DCS contacted the U.S. Embassy and Consulate in
California and encouraged Father to contact the U.S. Embassy in the United
Arab Emirates (Dubai) “for something in the nature of a home study,” but
had not “heard back from anyone in that regard.”
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Decision of the Court
¶8 At the conclusion of the hearing, the court adjudicated the
child dependent as to Father. The court found the “allegations of the
petition are true by a preponderance of the evidence” and its “findings on
factual basis include abandonment,” but it did not include any other factual
findings.
¶9 Father timely filed a notice of appeal. We have jurisdiction
pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona
Revised Statutes (“A.R.S.”) sections 8-235, 12-120.21(A)(1), and 12-
2101(A)(1).
DISCUSSION
I. The Accelerated Hearing and Proceeding in Absentia
¶10 Father challenges the superior court’s decision to accelerate
the continued pretrial conference into a dependency adjudication hearing.
He argues the court abused its discretion by holding an accelerated hearing
and proceeding in absentia.
¶11 We review Father’s argument for an abuse of discretion. See
Shella H. v. Dep’t of Child Safety, 239 Ariz. 47, 50, ¶ 13 (App. 2016); see also
Trisha A. v. Dep’t of Child Safety, 247 Ariz. 84, 87–88, ¶ 14 (2019) (recognizing
that a court’s authority to accelerate a termination hearing is discretionary);
State v. Armstrong, 208 Ariz. 345, 354, ¶ 40 (2004) (“We will not find that a
trial court has abused its discretion unless no reasonable judge would have
reached the same result under the circumstances.” (citation omitted)).
¶12 As Father acknowledges, however, the superior court “had
the authority” to proceed with the accelerated hearing. See Ariz. R.P. Juv.
Ct. 50(C)(5); 54(C)(2); see also A.R.S. § 8-844(F) (stating that when a parent
fails to appear at the dependency pretrial conference and has been
instructed of the consequences for failure to appear, the court may decide
dependency based on the record and evidence presented). Although a
court still can abuse its discretion by taking an action authorized by rule,
and it might have been better for the court not to have proceeded with the
accelerated hearing here, the decision to do so did not constitute an abuse
of discretion under the circumstances presented.
II. Father’s Constitutional Right to Parent
¶13 Father next argues that his constitutional right to parent the
child was violated because DCS had no evidence of his “unfitness,” and
thus it could not “withhold custody” of the child and was instead required
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YASSER A. v. DCS, T.Y.
Decision of the Court
to “turn over the child.” However, no evidence in the record shows that
DCS is “withholding” the child from Father; in fact, no evidence indicates
whether Father has requested that the child be returned to his care or
whether she has a passport and the ability to be returned to his care.
Father’s argument is unsupported by the record.
III. Sufficiency of the Findings of Fact
¶14 Father also argues the superior court’s order does not contain
sufficient findings of fact. The State agrees and suggests we remand the
case to the juvenile court for the required findings.
¶15 In adjudicating a child dependent, the superior court is
required to set forth the findings of fact in support of its dependency order.
See Ariz. R.P. Juv. Ct. 55(E)(3) (requiring the court to “[s]et forth specific
findings of fact in support of a finding of dependency and adjudicate the
child dependent . . . if the petitioner met the burden of proof”); A.R.S. § 8-
844(C)(1)(a)(ii) (requiring the court to provide “[t]he factual basis for the
dependency”); Francine C. v. Dep’t of Child Safety, 249 Ariz. 289, 295, ¶ 12
(App. 2020) (holding that specific findings of fact in support of a finding of
dependency are “mandatory in every dependency proceeding”).
“[W]ritten findings, including findings of fact, must include all of the
ultimate facts—that is, those necessary to resolve the disputed issues.”
Logan B. v. Dep’t of Child Safety, 244 Ariz. 532, 537, ¶ 15 (App. 2018) (citations
and internal quotation marks omitted).
¶16 The superior court is “in the best position to weigh the
evidence, judge the credibility of the parties, observe the parties, and make
appropriate factual findings.” Pima Cnty. Dependency Action No. 93511, 154
Ariz. 543, 546 (App. 1987). Accordingly, we will not reweigh the evidence
or reassess the credibility of witnesses on appeal. Jesus M. v. Ariz. Dep’t of
Econ. Sec., 203 Ariz. 278, 282, ¶ 12 (App. 2002). Nonetheless, we review the
sufficiency of findings of fact and conclusions of law de novo as a mixed
question of fact and law. See Francine C., 249 Ariz. at 296, ¶¶ 13–14.
¶17 Here, the superior court cited no facts, either at the hearing or
in its minute entry order, to support the finding of abandonment or a
finding of neglect. Instead, the court simply relied on the dependency
petition’s allegation of abandonment alone as the sole factual basis for
finding the child dependent as to Father. Dependency petition allegations
alone, without supporting evidence, are insufficient to support a
dependency finding. See Pima Cnty. Juv. Action No. 86192, 151 Ariz. 359, 361
(App. 1986). Further, we cannot “ignore the requirement of written
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Decision of the Court
findings and simply search the record to uncover ultimate facts the court
may have relied upon, or infer findings the court may have made, in
reaching [its] decision.” Logan B., 244 Ariz. at 538, ¶ 17. Thus, we agree
with the parties that the superior court’s dependency finding cannot, on
this record, be sustained. Accordingly, we vacate the court’s finding of
dependency.
IV. Remand with Directions
¶18 Normally, at this point, we would remand the case for the
superior court to determine whether DCS has met the burden of proving
the allegations that form the basis for the dependency proceeding and to
make the requisite factual findings, as suggested by DCS. See Juv. Action
No. 86192, 151 Ariz. at 361; see also Francine C., 249 Ariz. at 298, ¶ 25 n.3
(“Although a parent cannot waive the juvenile court’s obligation to make
the required findings, nothing prevents a party from asking this court to
suspend the appeal and revest jurisdiction in the juvenile court for the
limited purpose of allowing the court to make the required written
findings.” (citations and internal quotations omitted)). However, our
review makes clear that the record contains no substantial evidence to
support the juvenile court’s legal conclusion that the child was dependent
as defined by A.R.S. § 8-201(15)(a), either through abandonment or neglect.
See A.R.S. § 8-201(1), (25)(a).
¶19 DCS maintains that its petition includes “numerous” factual
allegations that would constitute ultimate facts supporting a finding of
dependency. However, the only document admitted into evidence was the
August 9 progress report, which indicated DCS had not yet been able to
fully assess Father’s relationship with the child, and to the extent DCS had
done so, DCS had realized that Father was providing financial support and
having regular visits with the child. The report also contained the initial
allegations of abandonment and neglect, but mere unsupported allegations
alone are insufficient for a dependency finding. See Juv. Action No. 86192,
151 Ariz. at 361. Moreover, relying on the fact that the federal government
will not currently allow Father to come to the United States to visit the child
or bring her back to Dubai as a basis for DCS, a state government agency,
to claim she is dependent as to Father because he has not seen the child in
person for an extended period of time puts Father in a governmental Catch-
22. Given the record before us, or lack thereof, remanding for the superior
court to make findings would be futile. Accordingly, we remand with
directions for the superior court to dismiss the dependency petition.
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YASSER A. v. DCS, T.Y.
Decision of the Court
CONCLUSION
¶20 For the foregoing reasons, we vacate the superior court’s
finding of dependency. Further, because we agree with Father that the
record lacks substantial evidence from which the court could find the child
dependent as to Father based on abandonment or neglect, we remand with
directions to dismiss the dependency petition.
AMY M. WOOD • Clerk of the Court
FILED: AA
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