In Re Dependency as to R.G. ( 2023 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
IN RE DEPENDENCY AS TO R.G.
No. 1 CA-JV 22-0259
FILED 3-16-2023
Appeal from the Superior Court in Maricopa County
No. JD37110
The Honorable Michael J. Herrod, Judge
AFFIRMED
COUNSEL
Maricopa County Public Advocate, Mesa
By Suzanne W. Sanchez
Counsel for Appellant
Arizona Attorney General’s Office, Tucson
By Jennifer R. Blum
Counsel for Appellee Department of Child Safety
Roland Arroyo, Attorney at Law, Waddell
By Roland Arroyo
Co-counsel for Appellee R.G.
Maricopa County Office of the Legal Advocate, Phoenix
By Therese Ann Gantz
Co-counsel for Appellee R.G.
IN RE DEPENDENCY AS TO R.G.
Decision of the Court
MEMORANDUM DECISION
Judge Michael S. Catlett delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Michael J. Brown joined.
C A T L E T T, Judge:
¶1 Annjanet G. (“Mother”) appeals the juvenile court’s
dependency finding as to R.G. (“Child”), arguing there was insufficient
evidence of neglect at the time of the dependency hearing. Because
reasonable evidence supports the court’s decision, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Before Child was born, Mother had five other children who
were previously adjudicated as dependent. One of the concerns the
Department of Child Services (“DCS”) had when making its determination
for the five other children was the uncleanliness of Mother’s home. In
February 2022, police visited Mother’s residence and determined it was
unsafe for children. Because of the poor living conditions, the police
submitted a report to DCS.
¶3 Mother’s grandmother also lived in the residence. DCS
identified the grandmother as an individual of concern because of her
treatment of Mother’s children. Two of Mother’s children reported to DCS
that the grandmother abused them. Additionally, during an interaction
with DCS, the grandmother told one of the children, “[b]ad children go to
foster homes and get killed and raped.” While Mother stated she did not
agree with her grandmother’s comments and would keep Child away,
Mother also admitted to believing her grandmother was capable of safely
caring for her children.
¶4 Because of the prior dependency findings, DCS provided
services for Mother. As part of those services, Mother was diagnosed with
depression, anxiety, an unspecified neurocognitive disorder and in 2019
reported having suicidal ideation. Mother agreed her depression and
anxiety impacted her ability to clean her home and keep it safe for her
children.
¶5 In June 2022, after Child was born, DCS visited Mother. At
the time, Mother was living at her father’s home with her grandmother.
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IN RE DEPENDENCY AS TO R.G.
Decision of the Court
DCS observed that the room where Mother and Child were located was in
disarray. The room had so much clutter on the floor that DCS could not
enter. DCS also became concerned when Mother placed Child on two twin
beds that were pushed together, and “half of it was filled with clothes and
other items.” In its post-visit report, DCS noted the “two beds could
separate causing [Child] to fall through or that the pile of clothes/objects
could harm [Child].” After determining neglect, DCS returned and
removed Child.
¶6 Mother claimed she later moved out of her father’s home, on
her own, to a new apartment. She did not notify DCS of her move, which
prevented DCS from confirming whether the new location was safe.
¶7 In July 2022, DCS recommended Mother participate in
specialized counseling. While it is unclear how many counseling sessions
DCS expected Mother to attend, she missed sessions due to transportation
issues. But when Mother finally notified DCS that she was having those
issues, DCS provided access to transportation.
¶8 At Child’s dependency hearing in October 2022, Mother
repeatedly refused to take accountability for her prior actions. She testified
her other children caused the conditions in the home in February and she
was not responsible. She denied ever neglecting her children and blamed
them for their removal. She blamed DCS for her depression and anxiety.
¶9 Mother provided conflicting testimony regarding whether
counseling was beneficial. While she testified counseling could be helpful
and taught her “different strategies . . . to cope,” she also testified
counseling was not needed and would not be beneficial.
¶10 DCS expressed concern about Mother’s inability to accept
accountability and disregard of the services provided. Mother’s failure to
make “appropriate behavioral changes” led DCS to conclude she could not
provide proper care for Child.
¶11 The juvenile court found Child dependent because of a
“history of inappropriate housing . . . inability [of Mother] to care for her
other older children . . . [and] not fully engag[ing] in the services offered to
her for her other children.” Mother timely appealed. We have jurisdiction
under A.R.S. § 8-235.
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IN RE DEPENDENCY AS TO R.G.
Decision of the Court
DISCUSSION
¶12 Mother argues the juvenile court erred in finding Child
dependent because there was not reasonable evidence of neglect at the time
of the hearing. We review a court’s dependency finding for abuse of
discretion. Louis C. v. Dep’t of Child Safety, 237 Ariz. 484, 488 ¶ 12 (App.
2015). Dependency must be proven by a preponderance of the evidence.
See A.R.S. § 8-844(C)(1). The court must make its dependency finding
“based upon the circumstances existing at the time of the adjudication
hearing.” Shella H. v. Dep’t of Child Safety, 239 Ariz. 47, 50 ¶ 12 (App. 2016).
We review the evidence in the light most favorable to sustaining the court’s
finding and affirm unless there is no reasonable evidence to support the
finding. Willie G. v. Ariz. Dep’t of Econ. Sec., 211 Ariz. 231, 235 ¶ 21 (App.
2005).
¶13 A child may be found dependent if the “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(15)(a)(iii).
The definition for neglect includes “[t]he inability or unwillingness of a
parent, guardian or custodian of a child to provide that child with . . . shelter
. . . if that inability or unwillingness causes substantial risk of harm to the
child’s health or welfare . . . .” A.R.S. § 8-201(25)(a).
¶14 The juvenile court did not abuse its discretion by finding that
Mother was unable or unwilling to provide appropriate shelter, thereby
creating a substantial risk of harm to Child. The juvenile court previously
found Mother’s older children dependent based in part on unsanitary living
conditions—the home had food and trash covering the floor, stains and
mold on the walls, “mushy” carpets, and cockroaches. At the time of
Child’s birth, Mother had moved and lived with her father, which Mother
testified she did to fix her prior housing situation. But DCS documented
the room where Mother kept Child raised similar concerns to Mother’s
prior housing situation. Not only could DCS not enter the room due to
clutter, but the bed where Mother placed Child presented a hazard because
of the potential to separate and the presence of clothes and other items.
¶15 Mother also admitted that the grandmother resided in the
home when DCS removed Child, and Mother minimized the risk
grandmother poses. DCS previously identified the grandmother as
someone unsafe to be around children. Two of Mother’s older children
reported that the grandmother abused them. Within earshot of DCS, the
grandmother told one of the children, “[b]ad children go to foster homes
and get killed and raped.” The grandmother threatened one of Child’s
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IN RE DEPENDENCY AS TO R.G.
Decision of the Court
older siblings with abuse and having food withheld if he spoke to DCS.
Another of Child’s older siblings—a three-year-old child—was visibly
afraid of the grandmother and would cry when the grandmother spoke to
him. Despite all of this, Mother testified she believes the grandmother is a
safe and appropriate person to care for children.
¶16 Finally, at the dependency hearing, Mother denied
responsibility for her prior actions. She blamed her older children for the
unsanitary conditions that caused, in part, their dependency findings. She
blamed DCS for causing her mental health issues and provided conflicting
statements regarding whether counseling was beneficial.
¶17 We are thus faced with a situation where the juvenile court
found Mother’s five older children dependent based on unsanitary living
conditions and abusive relatives. Mother was subsequently diagnosed with
depression, anxiety, and an unspecified neurocognitive disorder. DCS,
therefore, recommended specialized counseling. But Mother failed to
engage in the services DCS recommended to help Mother address any
underlying mental health issues. Although Mother later moved in with her
father, Mother failed to provide Child with safe shelter and, most
disconcertingly, exposed Child to the grandmother. And Mother denies
any responsibility for past abuse and neglect of Child’s older siblings and
blames DCS for her mental health diagnoses.
¶18 In challenging the juvenile court’s dependency finding,
Mother relies upon her testimony that she had moved into an apartment of
her own and obtained employment. But Mother did not inform DCS she
moved into her own apartment before the hearing, which prevented DCS
from determining whether the new apartment was safe for Child.
¶19 As we have previously explained, where conditions creating
dependency as to older children continue to pose an imminent risk of harm
to a newborn, DCS is permitted to act to protect the newborn before
infliction of specific harm. Pima Cnty. Juv. Dependency Action No. 96290, 162
Ariz. 601, 604 (App. 1990); see also Shella H., 239 Ariz. at 51 ¶ 16. We also
will “not hesitate” to affirm dependency when a parent denies
responsibility for past abuse and neglect because “such denial of
responsibility supports a finding” that the parent is not “presently willing
to or capable of exercising proper and effective parental care and control.”
96290, 162 Ariz. at 604. Both those situations are present here. We conclude,
therefore, that the trial court did not abuse its discretion in finding Child
dependent as to Mother.
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IN RE DEPENDENCY AS TO R.G.
Decision of the Court
CONCLUSION
¶20 We affirm the juvenile court’s dependency finding.
AMY M. WOOD • Clerk of the Court
FILED: AA
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