William B. v. Dcs, B.B. ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
WILLIAM B.,
Appellant,
v.
DEPARTMENT OF CHILD SAFETY, B.B.,
Appellees.
No. 1 CA-JV 22-0078
FILED 11-8-2022
AMENDED PER ORDER FILED 11-08-2022
Appeal from the Superior Court in Maricopa County
No. JD534480
The Honorable Jeffrey A. Rueter, Judge
AFFIRMED
COUNSEL
Maricopa County Public Advocate, Mesa
By Suzanne W. Sanchez
Counsel for Appellant
Arizona Attorney General’s Office, Mesa
By Amanda Adams
Counsel for Appellee
WILLIAM B. v. DCS, B.B.
Decision of the Court
MEMORANDUM DECISION
Judge James B. Morse Jr. delivered the decision of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge Michael J. Brown joined.
M O R S E, Judge:
¶1 William B. ("Father") appeals the superior court's dependency
and disposition orders. For the following reasons, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Father is the legal parent of B.B. ("Child"), born in 2004.
Child's biological parents are not parties to this appeal.
¶3 Child was born substance-exposed to marijuana. To avoid
placing Child in the foster-care system, Father has cared for Child from
birth. Initially, Father and Child lived with Child's great-grandmother,
great-grandfather, and great-aunt.
¶4 In 2010, the family court granted Child's biological mother's
request for Father to have sole custody of Child. Subsequently, Father got
married and Child lived with Father, Father's wife, and Father's daughter.
Later, Father acceded to great-grandmother's request that Child live with
her. Child then went to live with his aunt and uncle. In 2020, Child
returned to Father's home after the aunt and uncle reported that Child hit
their minor daughter.
¶5 In December 2021, Father learned that Child had allegedly
sexually assaulted his minor cousin in 2019 while living with his aunt and
uncle. Father then contacted the Department of Child Safety ("DCS") to
remove Child from Father's home. Father insisted that DCS remove Child
from his home and told the DCS investigator that he believed Child posed
a risk to the other minor children living in Father's home and no relative
was willing to care for Child at the time. The court ordered Child into
temporary out-of-home care and DCS placed Child in an independent-
living group home.
¶6 Shortly after, DCS filed a dependency petition alleging Father
(1) neglected Child due to his inability or unwillingness to provide Child
with supervision, food, clothing, shelter, or medical care, which placed
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Decision of the Court
Child in an unreasonable risk of harm; and (2) was unwilling or unable to
provide proper and effective parental care. At the pretrial conference
hearing, Father contested the allegations of the dependency petition and the
court ordered Child into his great-aunt's care.
¶7 At the March 2022 dependency hearing, Father requested that
the court find Child dependent on the inability-to-parent ground but
contested the neglect ground. After adjudicating Child dependent, the
court held a disposition hearing and ordered a case plan of supervised
independent living.
¶8 In July 2022, a week before Child's eighteenth birthday, the
court dismissed the dependency action and affirmed the case plan of
independent living. While living with his great-aunt and shortly after his
eighteenth birthday, Child executed a voluntary agreement under A.R.S. §
8-521.02(3) to participate in the extended foster care program.
¶9 Father timely appealed. We have jurisdiction under A.R.S. §§
8-235(A), 12-120.21(A)(1), and 12-2101(A)(1).
DISCUSSION
¶10 We review a dependency order for an abuse of discretion,
Louis C. v. Dep't of Child Safety, 237 Ariz. 484, 488, ¶ 12 (App. 2015), and view
the evidence in the light most favorable to upholding the court's order,
Willie G. v. Ariz. Dep't of Econ. Sec., 211 Ariz. 231, 235, ¶ 21 (App. 2005).
Because trial courts are "in the best position to weigh the evidence, observe
the parties, judge the credibility of witnesses, and resolve disputed facts,"
Ariz. Dep't of Econ. Sec. v. Oscar O., 209 Ariz. 332, 334, ¶ 4 (App. 2004), we
will affirm an order if reasonable evidence supports it, Willie G., 211 Ariz.
at 235, ¶ 21. DCS bears the burden of proving the allegations of a
dependency petition by a preponderance of the evidence. A.R.S. § 8-
844(C)(1); Shella H. v. Dep't of Child Safety, 239 Ariz. 47, 50, ¶ 13 (App. 2016).
Moreover, the circumstances that indicate dependency must be present at
the time of the adjudication. Shella H., 239 Ariz. at 50, ¶ 12.
¶11 We note that the dismissal of the dependency petition does
not render Father's appeal moot. See A.R.S. § 8-804(A), (G) (requiring DCS
to maintain a central registry of "substantiated" reports of child neglect—
dependency based on an allegation of neglect is a substantiated report that
must be maintained for a maximum of 25 years); see, e.g., Bradley T. v. Dep't
of Child Safety, 1 CA-JV 20-0036, 2020 WL 3970994, at *1, ¶ 5 n.4 (Ariz. App.
July 14, 2020) (mem. decision) (considering the merits of an appeal based
on a dependency finding of neglect despite the child turning 18).
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WILLIAM B. v. DCS, B.B.
Decision of the Court
I. Neglect Ground.
¶12 We reject Father's argument that reasonable evidence does
not support the court's order adjudicating Child dependent on the neglect
ground. We will affirm an order unless no reasonable evidence supports
the court's findings. Willie G., 211 Ariz. at 235, ¶ 21.
¶13 A child is dependent if his home is unfit due to neglect by a
parent. A.R.S. § 8-201(15)(a)(iii). Neglect means 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(25)(a)(2019). Moreover, a dependency
adjudication must be "based upon the circumstances existing at the time of
the adjudication hearing" and "not merely on past circumstances." Francine
C. v. Dep't of Child Safety, 249 Ariz. 289, 300, ¶ 35 (App. 2020) (quoting Shella
H., 239 Ariz. at 50, ¶ 12).
¶14 At the dependency hearing, the court heard evidence that (1)
Father did not know the learning disability Child had been diagnosed with
and the services that Child received under Child's individualized education
plan ("IEP"), (2) Father had not taken Child to a dentist in the year and a
half Child lived with Father, (3) Father had not taken Child to a doctor while
Child lived with Father despite Child requiring an inhaler, (4) Father did
not seek out professional counseling for Child when Child expressed that
he "felt like self-harming," and (5) Father had not visited or attempted to
visit Child since his removal in December 2021. Thus, based upon the
circumstances that existed at the time of the adjudication hearing,
reasonable evidence supports the court's finding that Father neglected
Child due to Father's inability or unwillingness to provide Child with
supervision and medical care. See A.R.S. § 8-201(25)(a) (defining neglect).
¶15 Moreover, Father's inability or unwillingness caused
unreasonable risks of harm to Child's health or welfare. See A.R.S. § 8-
201(25)(a). The court heard evidence that Child required extensive dental
care after he was removed from Father's care, and Father did not arrange
counseling when Child told Father he thought about hurting himself. In
addition, the DCS investigator testified about Child's developmental
shortcomings, struggles in school, and Father's belief that Child was lazy
even though Child required an IEP.
¶16 The burden of proof to establish a dependency is less than
required for termination of parental rights. See A.R.S. § 8-537(B) (requiring
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Decision of the Court
clear and convincing evidence for termination proceedings). The record
contains reasonable evidence to support the court's findings. See Willie G.,
211 Ariz. at 235, ¶ 21 ("On review of an adjudication of dependency, we
view the evidence in the light most favorable to sustaining the juvenile
court's findings."); Oscar O., 209 Ariz. at 334, ¶ 4 ("A juvenile court as the
trier of fact in a termination proceeding is in the best position to weigh the
evidence . . . .").
II. Inability-to-Parent Ground.
¶17 We also reject Father's argument that the court did not make
sufficient findings of fact to support the inability-to-parent ground. When
courts find DCS has proven the allegations in a dependency petition by a
preponderance of the evidence, they must "state specific facts that support
a finding of dependency." Ariz. R.P. Juv. Ct. 338(h)(4). A court's finding
must include all the "ultimate facts," but it need not list "each fact that
supports its ruling." Francine C., 249 Ariz. at 296, ¶ 14 (citations omitted).
"[U]ltimate facts are at least the essential and determinative facts on which
the conclusion was reached. They are the controlling facts, without which
the court cannot correctly apply the law in resolving the disputed issues in
the case." Id. (quoting Logan B. v. Dep't of Child Safety, 244 Ariz. 532, 537, ¶ 15
(App. 2018)). "We review the sufficiency of findings of fact de novo as a
mixed question of fact and law." Id.¶18 Here, the court found DCS had proven by a preponderance of
the evidence that Child is dependent as to Father on the grounds that Father
is unable or unwilling to provide the child with proper and effective
parental care and control. See A.R.S. § 8-201(15)(a)(i) (defining dependency
on the inability-to-parent ground). The court adjudicated Child dependent
by finding "Father refuse[d] to have the child back in his home due to
allegations of inappropriate conduct by the child." There is no dispute that
Father asked the court to find Child dependent on the inability-to-parent
ground. Because the court's finding of fact is sufficient, the court did not
abuse its discretion. Louis C., 237 Ariz. at 488, ¶ 12.
CONCLUSION
¶19 We affirm the dependency. We also note that Child has
voluntarily agreed to participate in DCS's extended foster care program.
See A.R.S. § 8-521.02(A)(1) (qualifying young adults must "have been in the
custody of [DCS] as a dependent child" when they turned 18). Because the
extended foster care program is consistent with the court's disposition
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WILLIAM B. v. DCS, B.B.
Decision of the Court
order of supervised independent living, we affirm the court's disposition
order.
AMY M. WOOD • Clerk of the Court
FILED: JT
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