Angela B. v. Dcs ( 2015 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
ANGELA B., Appellant,
v.
ARIZONA DEPARTMENT OF CHILD SAFETY, A.E., M.E., Appellees.
No. 1 CA-JV 15-0104
FILED 8-25-2015
Appeal from the Superior Court in Maricopa County
No. JD29171
The Honorable Kristin C. Hoffman, Judge
AFFIRMED
COUNSEL
John L. Popilek, P.C., Scottsdale
By John L. Popilek
Counsel for Appellant
Arizona Attorney General’s Office, Tucson
By Cathleen E. Fuller
Counsel for Appellee
ANGELA B. v. DCS, et al.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Randall M. Howe delivered the decision of the Court, in
which Judge Michael J. Brown and Judge Kent E. Cattani joined.
H O W E, Judge:
¶1 Angela B. (“Mother”) appeals the determination that her two
minor daughters, A.E., born in November 1998, and M.E., born in April
2008, were dependent children. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 One September day, A.E. called the Arizona Department of
Economic Security’s1 hotline—as she had done numerous times in the past
when she and Mother fought. A.E. alleged that Mother had physically
abused, threatened, and neglected her. She said that she was afraid of
Mother, whose anger seemed to be escalating, and that Mother was not
being treated for her bipolar disorder. A.E. also said that Mother had sat on
her several times, making it difficult to breathe; she also described when
Mother chased her with a knife.
¶3 The Department took temporary custody of A.E. and her
younger sister M.E. It filed a petition alleging that the children were
dependent. The Department alleged that Mother neglected them and was
unable to provide proper and effective parental care and control due to
mental-health issues and failure to provide a stable home.
¶4 Because of the mental-health allegations, Mother agreed to a
psychological evaluation. During the evaluation, she denied that she had
“ever neglected, endangered, failed to protect, or abused her children” or
that she had any mental-health issues that would impact her parenting.
Although Mother described her relationship with her daughters as “close,”
collateral records, including other reports and information available to the
Department, indicated a “significant discord in the relationship.” Mother
1 The Arizona Department of Economic Security is substituted for the
Arizona Department of Child Safety in this matter. See Ariz. R. Civ. App. P.
27; S.B. 1001, Section 157, 51st Leg., 2nd Spec. Sess. (Ariz. 2014) (enacted).
For convenience, we refer to both as “the Department.”
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Decision of the Court
had “physical altercations” with her children, and the children had told the
psychologist that they wanted to live with their father.
¶5 Mother reported that she was diagnosed with ADHD. She
denied having bipolar disorder, but the psychologist noted that Mother’s
self-reporting was inconsistent with collateral records. Mother also
reported a history of being prescribed various psychotropic medications,
taking them, but then stopping because she did not like the side effects. The
psychologist diagnosed Mother with ADHD in partial remission, major
depressive disorder in full remission, and emotional and physical abuse of
a former spouse.
¶6 The psychologist concluded that the children would be at risk
in Mother’s care due to her mental-health issues: “[I]f it is determined that
[Mother] has a bipolar disorder, which is being untreated, her children
would be at risk. Collateral records noted she had aggressive and violent
behavior, which was attributed to the bipolar disorder.” The psychologist
also noted concerns about Mother’s judgment, including Mother’s decision
to continue to have contact with a man A.E. said had made sexually
inappropriate comments to her and with a boyfriend A.E. said had sexually
abused her. The psychologist concluded that “[t]his suggests she puts her
relationships with men in front of the wellbeing of her daughter.”
¶7 Because of Mother’s history of instability, the psychologist
recommended that Mother maintain a minimum of six months of steady
employment and housing before the Department addressed whether to
return the children to her care. The psychologist explained that if Mother
were unable to maintain employment or stable housing, she would have
difficulty meeting her children’s basic needs, which would place the
children at risk for neglect.
¶8 At the contested dependency hearing, Mother objected to the
admission of a police report documenting A.E.’s sexual assault allegations
against one of Mother’s male friends. The juvenile court found the report
relevant and admitted it, but stated it would “decide what weight to give
it.” When Mother testified, she admitted that several persons had sexually
abused A.E. while in her care. She also admitted that she had previously
spanked A.E. and slapped M.E.
¶9 Mother testified that she and the children were living in a
trailer for three months when the Department took the children into
custody. Before that, they stayed in a shelter for five weeks, a hotel for three
days, with friends for a few days, and in another trailer for three months.
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Decision of the Court
Mother explained that they moved often because she had trouble finding
affordable housing. She also said that she was employed only part-time and
was unable to find a full-time job that “fit.”
¶10 Mother agreed that she had mental-health issues, including
“[b]ipolar, ADHD, depression, and anxiety,” and admitted that these
conditions made parenting difficult for her. Mother testified that she had
been prescribed various medications for those disorders, but had always
stopped taking them because of their side effects. With her most recent
medication, Mother explained that she was “a little bit calmer,” but she had
“a lot of symptoms with it that are worse.” Mother questioned whether she
needed any kind of medication: “I’m not sure of—that I really need it,
because I can’t find one that’s helping my situation.”
¶11 The case manager testified that the children’s safety would be
at risk if they were returned to Mother. She stated that Mother’s history of
not following her treatment for her mental illness showed that she was
unable to care for A.E. The case manager also stated that she did not believe
that Mother was able to provide the children stable housing because of
Mother’s “sporadic residence, moving from place to place.”
¶12 During cross-examination, Mother tried to elicit testimony
about A.E.’s behavior in foster homes, specifically that she had been
moving between them. The Department objected, arguing that A.E.’s
behavior in foster homes was irrelevant. Mother countered that the
Department was “blaming [her] . . . for not being able to take care of” A.E.
and therefore the child’s difficult behavior was relevant. The court
sustained the objection.
¶13 After considering the evidence, the juvenile court found the
children dependent. The court made clear that it was not basing its ruling
on the sexual abuse allegations. The court found family reunification the
appropriate case plan. It ordered services for Mother and for the children,
including counseling for A.E. and a neurological evaluation referral for
M.E. Mother timely appealed.
DISCUSSION
¶14 Mother argues that the juvenile court erred by finding the
children dependent and abused its discretion by admitting an undisclosed
police report and excluding testimony about A.E. in foster care. On review,
we view the evidence in the light most favorable to sustaining the court’s
findings, but we review de novo the court’s interpretation and application
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Decision of the Court
of the dependency statute. Oscar F. v. Ariz. Dep’t of Child Safety, 235 Ariz.
266, 267–68 ¶ 6, 330 P.3d 1023, 1024–25 (App. 2014).
1. The Children Dependent as to Mother
¶15 Mother argues that no reasonable evidence supports the
juvenile court’s dependency finding. Before a child can be found
dependent, the Department must prove by a preponderance of the evidence
one of the grounds for a finding of dependency set forth in A.R.S. § 8–
201(14)(a). Under this statute, 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”
or whose “home is unfit by reason of abuse, neglect, cruelty or depravity
by a parent, a guardian or any other person having custody or care of the
child.” A.R.S. § 8–201(14)(a)(i), (iii). Neglect includes the “inability or
unwillingness of a parent, guardian or custodian of a child to provide that
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(24)(a). Because the primary consideration
in a dependency case is the child’s best interests, we afford broad discretion
to the juvenile court. Joshua J. v. Ariz. Dep’t of Econ. Sec., 230 Ariz. 417, 424 ¶
29, 286 P.3d 166, 173 (App. 2012).
¶16 Here, the evidence supports the juvenile court’s dependency
determination. The record shows that Mother had been unable to provide
stable housing for the children. Mother testified that she and the children
moved often, staying at various locations only for a few days, weeks, or
months. Mother admitted that they moved often because she could not find
affordable housing. Mother also testified that she was working part-time
and was having trouble finding full-time work that suited her. Further, the
case manager testified that Mother’s “sporadic residence” would put the
children’s safety at risk if they were returned to Mother.
¶17 Mother counters that she remedied this circumstance by the
hearing date because she had been living in the same apartment for five
months and had steady employment. But because of Mother’s history of
instability, a psychologist recommended that Mother maintain a minimum
of six months of steady housing and employment before the Department
considers returning the children. The record shows that Mother had not
done so and returning the children to her beforehand would have put them
at risk of neglect.
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Decision of the Court
¶18 The record also shows that Mother’s mental-health issues
have resulted in neglect and improper and ineffective parental care and
control of the children. Mother testified that she had mental-health issues,
and she admitted that these conditions made it difficult for her to parent
the children. Further, the psychologist reported that Mother had aggressive
and violent behavior, which was attributed to the bipolar disorder. A.E. has
called the Department’s hotline numerous times, reporting that she was
afraid of Mother, that Mother was physically abusing, threatening, and
neglecting her, and that Mother’s bipolar disorder was going untreated. By
leaving her bipolar disorder untreated, Mother put her children at risk.
Mother also admitted—during the hearing and to a psychologist—that she
had been prescribed various medications for those disorders, but had
always stopped taking the medications because of their side effects.
Consequently, Mother’s history of failing to treat her mental-health issues
prevented her from safely and effectively parenting the children.
¶19 The record provides sufficient evidence to support the
juvenile court’s finding that Mother neglected her children and was unable
to provide them with proper and effective parental care and control because
of her unstable housing and her mental health issues. Accordingly, the
court did not err in adjudicating A.E. and M.E. dependent.
2. Evidence Regarding A.E.’s Sexual Abuse
¶20 Mother next argues that the juvenile court deprived her of
due process because, although the dependency petition did not allege
“failure to protect,” the primary focus of the evidence and the Department’s
argument related to allegations of A.E.’s sexual abuse. But Mother waived
this issue because she failed to present it to the juvenile court. See
Continental Lighting & Contracting, Inc. v. Premier Grading & Utilities, LLC,
227 Ariz. 382, 386 ¶ 12, 258 P.3d 200, 204 (App. 2011) (providing that “legal
theories must be presented timely to the trial court,” and if not, then they
are waived on appeal); Louis C. v. Ariz. Dep’t of Child Safety, -- P.3d -- ¶ 5,
715 Ariz. Adv. Rep. 36 (App. 2015) (“[W]e generally do not consider issues,
even constitutional issues, raised for the first time on appeal.”).
¶21 Regardless of the waiver, the juvenile court clearly indicated
that it did not find dependency based on sexual abuse. Although Mother
claims that it “cannot be fairly said that the trial court disregarded the
evidence and argument presented on this undisclosed evidence and
theories,” a juvenile court is presumed to know and apply the rules of
evidence and to not consider inadmissible matters in making its findings.
See State v. Warner, 159 Ariz. 46, 52, 764 P.2d 1105, 1111 (1988). We see no
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Decision of the Court
reason to doubt this presumption, especially because the record supports
the juvenile court’s dependency order on the ground alleged by the
Department. See supra at ¶¶ 15–19.
¶22 Correspondingly, Mother argues that the juvenile court erred
in admitting the undisclosed police report that contained A.E.’s allegations
of sexual abuse. She contends that the Department did not comply with
Juvenile Rule 44(B)(2), which provides that a party intending to introduce
exhibits into evidence disclose an exhibit list and give copies to any
opposing party, and “[n]o exhibits shall be used at trial other than those
disclosed in accordance with this rule, except for good cause shown.” But
Mother also waived this argument by not presenting it to the juvenile court.
See Continental Lighting & Contracting, Inc., 227 Ariz. at 386 ¶ 12, 258 P.3d at
204. Mother merely objected to relevancy, thereby depriving that court the
opportunity to consider whether good cause was established.
¶23 Waiver notwithstanding, Mother has not shown—and the
record does not indicate—that she was prejudiced by the court’s ruling. A
trial court has broad discretion in admitting and excluding evidence, and
we will not disturb its decision absent a clear abuse of its discretion and
resulting prejudice. Lashonda M. v. Ariz. Dep’t of Econ. Sec., 210 Ariz. 77, 82
¶ 19, 107 P.3d 923, 928 (App. 2005). Here, Mother acknowledged that A.E.
had been sexually abused. Moreover, although the court admitted the
police report because it included A.E.’s statements of both abuse and
neglect, the court expressly stated that its findings were not based on
alleged sexual abuse, and the record supports the court’s findings on the
grounds alleged.
3. Evidence Regarding A.E.’s Behavior in Foster Care
¶24 Mother next argues that the juvenile court abused its
discretion by excluding testimony about A.E.’s behavior in foster care. She
contends that the special needs or issues of a child must be considered in
determining whether Mother was adequately exercising care and control of
A.E. But here, the excluded evidence was cumulative because the juvenile
court had already heard evidence about A.E.’s difficult behavior in and out
of foster care. Although the court precluded the evidence based on
relevance, we may nonetheless affirm the court’s ruling if it reached the
right result for the wrong reason. Powers v. Guaranty RV, Inc., 229 Ariz. 555,
560 ¶ 13, 278 P.3d 333, 338 (App. 2012) (“We will affirm the trial court’s
judgment even though the [] court may have reached the right result for the
wrong reason.”). Because the evidence at issue would have been
cumulative to other properly admitted evidence, Mother has not shown
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Decision of the Court
that the court’s decision prejudiced her case. See Lashonda M., 210 Ariz. at
82 ¶ 19, 107 P.3d at 928. Consequently, the juvenile court did not abuse its
discretion in precluding the evidence.
CONCLUSION
¶25 For the foregoing reasons, we affirm.
:ama
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