Eugene W. v. Dcs, P.W. ( 2016 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
EUGENE W., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, P.W., Appellees.
No. 1 CA-JV 15-0249
No. 1 CA-JV 15-0251
FILED 2-25-2016
Appeal from the Superior Court in Maricopa County
No. JD28834
No. JD28860
The Honorable Lisa Daniel Flores, Judge
AFFIRMED
COUNSEL
The Stavris Law Firm, PLLC, Scottsdale
By Christopher Stavris
Counsel for Appellant
Arizona Attorney General’s Office, Mesa
By Nicholas Chapman-Hushek
Counsel for Appellee Department of Child Safety
EUGENE W. v. DCS, P.W.
Decision of the Court
MEMORANDUM DECISION
Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Peter B. Swann and Judge Donn Kessler joined.
W I N T H R O P, Judge:
¶1 Eugene W. (“Father”) appeals the juvenile court’s rulings
finding children1 I.W., F.W., and P.W. (collectively “the Children”)
dependent as to Father, contending the rulings were not supported by
evidence. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Father and P.W.’s mother (“Mother”) lived as one household
with six children—including the Children, D.W. (fathered by Father with
another woman), and two children Mother had with her ex-boyfriend.2 The
Department of Child Safety (“DCS”) got involved in 2014 when acts of
domestic violence committed by Father toward Mother were reported to
DCS.
¶3 Father and Mother denied any incident of domestic violence,
and refused all services offered by DCS except visitation. In 2014, DCS
petitioned the juvenile court to find the Children were dependent as to
Father.3 See Ariz. Rev. Stat. (“A.R.S.”) § 8-202(B) (granting the juvenile court
1 I.W. and F.W., Father’s biological children, have a different mother
from P.W.; Father’s name does not appear on P.W.’s birth certificate. At
one point, Father questioned his paternity of P.W., but did not take a
paternity test to prove his suspicion. Without proffering any evidence,
Father claimed at trial that he had later filed an acknowledgment of
paternity with Washington, P.W.’s birth state. The juvenile court found
Father’s paternity of P.W. was not established; it nevertheless adjudicated
the dependency of P.W. as to Father and the unknown father.
2 Mother and the other three children are not parties to this appeal.
3 DCS also petitioned to find P.W. dependent as to Mother.
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EUGENE W. v. DCS, P.W.
Decision of the Court
exclusive original jurisdiction over dependency matters).4 After a bench
trial, the juvenile court found DCS had proved by the preponderance of
evidence that Father committed acts of domestic violence in the presence of
the Children and the Children were dependent as to Father.
¶4 Father timely appealed. We have appellate jurisdiction
pursuant to the Arizona Constitution, Article 6, Section 9; A.R.S. § 8-235(A);
and Rule 103(A) of the Arizona Rules of Procedure for the Juvenile Court.
ANALYSIS
¶5 We review the juvenile court’s rulings and findings on
dependency for abuse of discretion, and will not disturb them unless not
supported by reasonable evidence. Willie G. v. Ariz. Dep’t of Econ. Sec., 211
Ariz. 231, 235, ¶ 21, 119 P.3d 1034, 1038 (App. 2005). We also view the
evidence in the light most favorable to upholding the juvenile court's order.
Id.
¶6 Parental rights in the care, custody, and management of their
children are fundamental, but not absolute. Kent K. v. Bobby M., 210 Ariz.
279, 284, ¶ 24, 110 P.3d 1013, 1018 (2005) (citing Santosky v. Kramer, 455 U.S.
745, 753 (1982); Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 248,
¶¶ 11–12, 995 P.2d 682, 684 (2000)). Finding a child dependent does not
sever parental rights and therefore does not require the heightened level of
burden of proof as severing parental rights; a court may find a child
dependent as to a parent if proved by preponderance of evidence. Cochise
Cty. Juv. Action No. 5666-J, 133 Ariz. 157, 159, 650 P.2d 459, 461 (1982). The
court’s paramount consideration in dependency proceedings is the best
interest of the child. Id. at 161, 650 P.2d at 463. A child is dependent if the
child is found to be without parental care and control, no parent is willing
or able to provide such care or exercise such control, or the child’s home is
unfit by reason of abuse or neglect. A.R.S. § 8-201(14)(a)(i) & (iii); Pima Cty.
Juv. Dependency Action No. 96290, 162 Ariz. 601, 604, 785 P.2d 121, 124 (App.
1990); Pima Cty. Dependency Action No. 93511, 154 Ariz. 543, 545, 744 P.2d
455, 457 (App. 1987). This definition is met if a parent is unwilling or unable
to protect the child from abuse, including domestic violence committed by
one parent toward the other parent in the presence of the child. Shella H. v.
4 We cite the current version of the applicable statutes unless revisions
material to this decision have occurred since the events in question.
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EUGENE W. v. DCS, P.W.
Decision of the Court
Dep’t of Child Safety, No. 1 CA-JV 15-0140, 2016 WL 126294, at *3, ¶ 14 (App.
Jan. 12, 2016).5
¶7 Father denies he ever committed domestic violence or had a
problem with anger, and asserts all six children were coached, probably by
Mother’s ex-boyfriend, to tell DCS stories of him committing acts of
domestic violence toward Mother. In her testimony, Mother likewise
denied any incidence of verbal or physical abuse by Father, and also denied
she had ever been told that the children had reported witnessing several
instances of verbal and physical abuse by Father; however, the juvenile
court expressly found Mother and Father were not credible witnesses on
this issue. The exhibits admitted at trial clearly documented the fact that
Mother had been told that the children reported witnessing the verbal and
physical abuse directed by Father at Mother. Further, Mother’s sister
testified that Mother reported the verbal and physical abuse by Father to
her over the phone, via instant messages, and via Facebook messages.
Mother also sent her a photograph of injuries to Mother’s face caused by
Father.6 Even excluding the hearsay reports from the children, there is
ample evidence in the record to support the trial court’s explicit finding
that, by a preponderance of the evidence, Father had committed acts of
domestic violence against Mother in the presence of at least one of the
children, and that all three children in these two cases were dependent
because “Father is unable to properly and effectively care for them and
because their home is unfit by reason of abuse.”
¶8 Father contends that there is no evidence showing he abused
or neglected the Children; that the Children want to be back with him; that
he has provided for the Children; and that he has fully complied with DCS’s
requests. The record, however, demonstrates the opposite to be true. All
of the Children are fearful of Father; none of them expressed any desire to
go home unless and until Father and Mother completely address the issue
of domestic violence. Although there is no evidence that Father directly
5 As of issuance of this decision, only Westlaw citation is available for
this opinion.
6 Both Mother’s sister and case representatives of DCS testified that
the children told them about Father’s abuse of Mother. In the court’s ruling,
the court found that this testimony did not fall within the hearsay exception
available under A.R.S. § 8-237 or Juvenile Court Rule 45 because the
children were not describing instances of domestic violence directed at
them. Accordingly, the court indicated it was disregarding the hearsay
statements attributed to the children.
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EUGENE W. v. DCS, P.W.
Decision of the Court
abused or neglected the Children, the court explicitly found that Father has
exposed them to domestic violence and that the Children have been
negatively affected by Father’s acts of domestic violence: I.W. struggled
academically, fought with her peers, and had age-inappropriate tantrums;
F.W. “shut down” to mask her feelings; P.W. regressed in her speech skills,
suffered constant nightmares, and developed social issues. Lastly, Father
has stonewalled DCS’s recommended interventions. Except visitation, he
has refused all services provided by DCS and set up his own purported
therapeutic program, has refused to undergo drug or paternity testing, has
rejected all DCS’s referrals to psychologists or parent aides, and did not
cooperate with DCS in arranging paternity testing or visitation.
¶9 Father’s only colorable attempt of compliance with DCS was
to follow the recommendation by Dr. Pecaut—a clinical psychologist Father
and Mother found on their own after rejecting all referrals from DCS—to
participate in joint counseling on domestic violence. As noted by Dr.
Azzi—the DCS consulting psychologist, however, joint counseling
involving the potential perpetrator and the potential victim does not
effectively address the issue of domestic violence as the potential
perpetrator is likely too dominating during the counseling.7 Moreover,
both Drs. Pecaut and Azzi opined the parties would not benefit from
therapy if, in therapeutic settings, they deny the existence of domestic
violence. Father and Mother did just that—denying all incidents of
domestic violence during their sessions with Dr. Pecaut and later in the joint
counseling sessions. On this record, the juvenile court did not abuse its
discretion in finding that the services Father substituted for the DCS
recommended services failed to address the issue of domestic violence, and
that DCS met its burden proving the Children were dependent as to Father.
7 Besides finding the Children dependent, the juvenile court ordered
Father and Mother to undergo separate counseling.
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EUGENE W. v. DCS, P.W.
Decision of the Court
CONCLUSION
¶10 The juvenile court’s rulings are affirmed.
:ama
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