Neal I. v. Dcs, A.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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
NEAL I.,
Appellant,
v.
DEPARTMENT OF CHILD SAFETY, A.I.,
Appellees.
No. 1 CA-JV 21-0070
FILED 10-12-2021
Appeal from the Superior Court in Maricopa County
No. JD40132
The Honorable Lori Bustamante, Judge
AFFIRMED
COUNSEL
Neal I., Phoenix
Appellant
Arizona Attorney General’s Office, Tucson
By Jennifer R. Blum
Counsel for Appellee
NEAL I. v. DCS, A.I.
Decision of the Court
MEMORANDUM DECISION
Judge David D. Weinzweig delivered the decision of the Court, in which
Presiding Judge Peter B. Swann and Judge Paul J. McMurdie joined.
W E I N Z W E I G, Judge:
¶1 Neal I. (“Father”) appeals from the superior court’s order
finding his daughter dependent. We affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Father and Heather M. (“Mother”) are the biological parents
of a daughter, A.I., born in November 2009. A.I. has suffered from serious
mental and behavioral health issues since March 2020. She lived with
Mother, but Mother could not control her behavior, which led to frequent
visits from police and crisis response teams. Father’s presence in his
daughter’s life was sporadic. He petitioned the superior court for parenting
time in September 2020. And yet, he simultaneously asked the court to
relieve him of his court-ordered duty to provide her insurance.
¶3 A.I.’s mental health worsened in the summer of 2020, and
doctors recommended outpatient treatment, but Father neither followed up
nor arranged for her care. Over the final week of October 2020, A.I. was
twice hospitalized in the psychiatric unit. She was suicidal and physically
violent. After the second visit, the hospital refused to release A.I. to either
parent because she said she was afraid of Father and did not feel safe with
her parents. The hospital contacted the Department of Child Safety, and
DCS secured temporary physical custody of A.I. on October 30. A.I. was
hospitalized twice more during the first week of November.
¶4 Around that time, DCS petitioned the superior court to find
A.I. dependent as to Mother and Father, alleging each was “unwilling or
unable to provide proper and effective parental care and control by
neglecting to provide a safe and stable home environment and proper
supervision and meet the child’s mental and behavioral health needs.”1
1 Mother stipulated to the dependency.
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NEAL I. v. DCS, A.I.
Decision of the Court
DCS also claimed that A.I. needed “a [more] structured environment or
higher level of care” than the family could provide.
¶5 In February 2021, the superior court held a contested
dependency hearing, where it heard testimony from Father and the DCS
case manager. Father only challenged the allegations that he physically
abused or neglected the child2 but did not contest the dependency itself.
DCS asked the court for separate dependency and neglect findings. The
court clarified it was “not going to enter any physical abuse findings,” but
concluded A.I. was dependent under A.R.S. § 8-201(15)(a)(i) finding:
Father is unwilling or unable to provide proper and effective
parental care and control by neglecting to provide a safe and
stable home, proper supervision and failing to meet the
mental and behavioral health needs of the child. Arrowhead
Hospital labeled the child’s issues as behavioral specifically
triggered by her parents. Father has failed to ensure the child
receives proper mental and behavioral health treatment and
continues to lack involvement in the child's mental and
behavioral health issues.
¶6 Father appealed. We have jurisdiction. See Ariz. Const. art 6,
§ 9; A.R.S §§ 8-235, 12-120.21(A)(1), 12-2101(A)(1).
DISCUSSION
¶7 We review the superior court’s dependency order for an
abuse of discretion, accepting its findings of fact unless clearly erroneous
and affirming the order unless it is unsupported by reasonable evidence.
Joelle M. v. Dep’t of Child Safety, 245 Ariz. 525, 527, ¶ 9 (App. 2018).
¶8 A dependent child includes 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.” A.R.S. §
8-201(15)(a)(i). The primary concern in a dependency case is always the
child’s best interests. Joelle M., 245 Ariz. at 527, ¶ 10.
¶9 The record contains reasonable evidence to support the
superior court’s decision. A.I.’s mental health plummeted in March 2020,
2 At the hearing, DCS's attorney remarked that Father did not seem to
be contesting the dependency. The court adopted the same understanding.
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NEAL I. v. DCS, A.I.
Decision of the Court
culminating in four hospitalizations between October 24 and November 6.
And yet, in September 2020, Father asked the court to relieve him of his
duty to provide her insurance, just when his daughter needed help most.
The court also heard that Father never arranged for the outpatient mental
health treatment recommended by the hospital in 2020, and he missed all
five Child and Family Team (“CFT”) meetings leading to the dependency
hearing.
¶10 We are not persuaded by Father’s arguments. First, Father
asks this court to “reconsider the evidence,” ignoring or discounting the
weight of adverse evidence, but we will not reweigh the evidence on
appeal. See Joelle M., 245 Ariz. at 528, ¶ 18. The superior court is best
positioned to weigh the evidence, observe the parties, gauge credibility and
resolve questions of fact. Id.
¶11 Second, Father contends his attorney was ineffective because
the attorney did not present evidence that Father was not invited to attend
the CFTs or call Father as a rebuttal witness to contest the allegations of
physical abuse.3 But, Father must show “a reasonable probability exists
that, but for counsel’s errors, the result of the proceeding would have been
different.” Bob H. v. Ariz. Dep’t of Econ. Sec., 225 Ariz. 279, 282, ¶ 10 (App.
2010) (citation omitted). He never tries to meet this burden. What is more,
the superior court did not find that Father physically abused his daughter;
nor was A.I. found dependent “by reason of [the] abuse, neglect, cruelty or
depravity [of] a parent.” A.R.S. § 8-201(15)(a)(iii).
¶12 Lastly, although the superior court never found that Father
physically abused his daughter, Father fears that DCS might list him on its
central registry of substantiated abuse and neglect allegations. We have no
jurisdiction over this potential development. See Iman v. S. Pac. Co., 7 Ariz.
App. 16, 20 (1968) (claim based on “future or speculative facts” not ripe for
judicial determination). If placed on the registry, Father may challenge his
status under A.R.S. § 8-811(A)-(E).
3 Father’s opening brief offers no legal authorities or record citations
in violation of our appellate rules, which might constitute waiver of the
argument. See ARCAP 13(a)(7)(A); Ritchie v. Krasner, 221 Ariz. 288, 305, ¶ 62
(App. 2009). In our discretion, however, we reach the merits based on our
review of the record. See Adams v. Valley Nat’l Bank of Ariz., 139 Ariz. 340,
342 (App. 1984) (recognizing that courts prefer to decide each case upon its
merits rather than dismissing on procedural grounds).
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NEAL I. v. DCS, A.I.
Decision of the Court
CONCLUSION
¶13 We affirm the superior court’s dependency finding under
A.R.S. § 8–201(15)(a)(i).
AMY M. WOOD • Clerk of the Court
FILED: AA
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