Maureen L. v. Dcs ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
MAUREEN L., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, T.R., O.R., Appellees.
No. 1 CA-JV 20-0232
FILED 1-19-2021
Appeal from the Superior Court in Mohave County
No. L8015JD202007014
The Honorable Steven C. Moss, Judge
VACATED AND REMANDED
COUNSEL
Law Office of Florence M. Bruemmer PC, Anthem
By Florence M. Bruemmer
Counsel for Appellant
Arizona Attorney General’s Office, Mesa
By Amanda Adams
Counsel for Appellees
MAUREEN L. v. DCS, et al.
Decision of the Court
MEMORANDUM DECISION
Judge Cynthia J. Bailey delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Lawrence F. Winthrop joined.
B A I L E Y, Judge:
¶1 Maureen L. (“Mother”) appeals from the juvenile court’s
dependency order as to her two daughters. Because reasonable evidence
does not support the court’s dependency order, we vacate the order and
remand to the juvenile court for further proceedings.
FACTS 1 AND PROCEDURAL HISTORY
¶2 Mother and Darren R.2 (“Father”) are the biological parents of
T.R., born in December 2004, and O.R., born in October 2007. After Mother
and the children moved to Arizona in 2013, Mother married Ramon L.
(“Step-Father”) in 2016.
¶3 O.R. told T.R. one day that Step-Father had “touched her and
it made her feel uncomfortable,” and she drew a picture to illustrate where
Step-Father touched her. T.R. immediately went to Mother, brought her the
picture, and told her what O.R. had said. Mother then confronted Step-
Father. After Step-Father denied any inappropriate contact with O.R.,
Mother gathered the family members to discuss the allegations and
establish “boundaries” for O.R.’s interactions with Step-Father. O.R. also
disclosed the abuse to a friend. That friend notified authorities, and the
police and the Department of Child Safety (“DCS”) came to the house that
same night.
¶4 After police and DCS interviewed Step-Father, O.R., and T.R.,
police took O.R., T.R., and Mother to a crisis center, where O.R. was
forensically interviewed. At that time, O.R. said that Step-Father had
1 “On review of an adjudication of dependency, we view the evidence in
the light most favorable to sustaining the juvenile court’s findings.” Willie
G. v. Ariz. Dep’t of Econ. Sec., 211 Ariz. 231, 235, ¶ 21 (App. 2005).
2 At the dependency hearing, Father entered a no contest plea as to the
allegations in the petition. He is not a party to this appeal.
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Decision of the Court
touched her on her breast and near her genital area while they were lying
in his bed together. When police interviewed Mother, she expressed
skepticism regarding O.R.’s allegations. DCS took custody of both O.R. and
T.R. that night.
¶5 Less than a week later, DCS filed a dependency petition for
both girls as to Mother. The petition alleged two grounds: (1) Mother was
unwilling or unable to provide proper and effective parental care and
control by neglecting to provide a safe and stable home and proper
supervision, and (2) Mother’s home was unfit due to abuse. The factual
basis for both grounds were the same: Mother had allowed Step-Father to
remain in the family home after she learned of O.R.’s allegations, and
Mother did not believe O.R.’s allegations, and these actions placed both
girls at risk. A few days later, after meeting with DCS, Mother obtained an
order of protection against Step-Father for both girls, and Step-Father left
the home.
¶6 During a three-day dependency hearing, the juvenile court
heard from DCS case specialist Kelli Leahy, T.R., O.R.’s counselor, and
Mother, and interviewed O.R. in chambers. Leahy testified that at the time
of removal, DCS was concerned that Mother did not believe O.R. and was
defending Step-Father. Because Mother, maternal grandmother, and T.R.
had expressed doubts during the dependency about O.R.’s veracity, DCS
feared that if the family were reunited, O.R. would be less likely to report
any future abuse by Step-Father. Leahy acknowledged Mother’s efforts to
mitigate some of DCS’s concerns, including that she had engaged in
services, completed a parenting class and a psychological evaluation, and
engaged in individual and family counseling sessions with O.R. Leahy
testified that Mother recognized the children’s needs and was positively
attached to both girls. She further testified that although Step-Father was
not present in the family home, DCS remained concerned that Mother
continued to have a relationship with him.
¶7 T.R. testified Step-Father no longer lived in the family home
and expressed a desire to return home to Mother. O.R.’s counselor testified
she had no concerns about O.R. returning home to live with Mother. O.R.
told the court she would like to return to Mother but stated she did not want
to be alone with Step-Father again.
¶8 Mother testified that a few months before the incident, she
noticed O.R. appeared anxious and emotional and began hiding in her
room. She also testified that even before the incident, she had begun the
process to obtain counseling for O.R. She further testified Step-Father
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MAUREEN L. v. DCS, et al.
Decision of the Court
moved out several days after the incident and recounted that she had
obtained weekly counseling for O.R. after learning DCS would only be
providing counseling once a month. When pushed, Mother testified that
she now believed Step-Father had inappropriately touched O.R. but still
believed additional counseling and investigation were necessary to
determine what was best for O.R.
¶9 The juvenile court made detailed findings on the record. The
court found Mother was not credible when she testified that she now
believed O.R.’s allegations. It found Mother was unwilling or unable to
provide proper and effective care and neglected to provide a safe and stable
home environment. On this basis, the court found both T.R. and O.R.
dependent as to Mother. The court then directed DCS to file a written order.
¶10 Despite the court’s thorough oral findings, the written order
it issued later contained only two factual findings to support the
dependency, that:
(1) Mother is 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. The
mother has neglected to provide a safe home for
her children by allowing her husband to remain
in the home after being informed that he was
sexually abusing the child, [O.R.], in the home.
When the child told the mother of the abuse, the
mother chose not to believe the child and is
instead maintaining the alleged abuser in the home.
Both children are at risk of abuse in mother’s
home.
(2) Mother’s home is unfit by reason of abuse or
failure to protect from abuse. The child, [O.R.],
was sexually abuse[d] in the home by mother’s
husband. When the child told mother of the
abuse, the mother chose not to believe the child
and is instead maintaining the alleged abuser in the
home. Both children are at risk of abuse in
mother’s home.
(Emphasis added). These two paragraphs were primarily taken from DCS’s
dependency petition.
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MAUREEN L. v. DCS, et al.
Decision of the Court
¶11 We have jurisdiction over Mother’s timely appeal pursuant to
Article 6, Section 9, of the Arizona Constitution, Arizona Revised Statutes
§§ 8–235(A), 12–120.21(A)(1), –2101(A)(1), and Arizona Rules of Procedure
for the Juvenile Court 103(A).
DISCUSSION
¶12 We review an order adjudicating a child dependent for an
abuse of discretion. Shella H. v. Dep’t of Child Safety, 239 Ariz. 47, 50, ¶ 13
(App. 2016). We defer to the juvenile court’s determination of the weight
of the evidence. Louis C. v. Dep’t of Child Safety, 237 Ariz. 484, 488, ¶ 12 (App.
2015). “We will only disturb a dependency adjudication if no reasonable
evidence supports it.” Shella H., 239 Ariz. at 50, ¶ 13. To find a child
dependent, the court must find that the allegations in the petition are true
by a preponderance of the evidence. A.R.S. § 8-844(C)(1). “[T]he juvenile
court must consider the circumstances as they exist at the time of the
dependency adjudication hearing in determining whether a child is a
dependent child.” Shella H., 239 Ariz. at 48, ¶ 1.
¶13 The court “must ‘[s]et forth specific findings of fact in support
of a finding of dependency,’ which ‘shall be in the form of a signed order
or contained in a minute entry.’” Francine C. v. Dep’t of Child Safety, 249
Ariz. 289, 295, ¶ 12 (App. 2020) (quoting Ariz. R. P. Juv. Ct. 55(E)). “Even
when the court may have set forth some of its findings and conclusions on
the record at the conclusion of the [dependency] hearing, the requirement
to state its findings in a written order allows the juvenile court to reflect on
the record before memorializing its findings in writing.” Logan B. v Dep’t of
Child Safety, 244 Ariz. 532, 538-39, ¶ 19 (App. 2018). These specific written
findings allow “the appellate court to determine exactly which issues were
decided and whether the [juvenile] court correctly applied the law.”
Francine C., 249 Ariz. at 296, ¶ 13 (quoting Ruben M. v. Ariz. Dep’t of Econ.
Sec., 230 Ariz. 236, 240, ¶ 24 (App. 2012)). Although the court need not
include every fact, the court must include every ultimate fact. Ruben M., 230
Ariz. at 241, ¶ 25 (ultimate facts are “those necessary to resolve the disputed
issues”).
¶14 Here, reasonable evidence does not support the court’s
written finding that Mother was “maintaining” Step-Father in the family
home at the time of the hearing. In fact, each witness confirmed that Step-
Father had not lived at the family home since Mother obtained the order of
protection against him. Because the evidence does not support this finding,
the court abused its discretion in concluding otherwise, and the
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MAUREEN L. v. DCS, et al.
Decision of the Court
dependency order must be vacated. See Shella H., 239 Ariz. at 48, 50, ¶¶ 1,
13.
¶15 DCS argues that the superior court’s oral findings of fact
support the basis for the dependency. However, we cannot rely on the
court’s oral findings as “[d]etailed factual findings made orally on the
record do not comply with the safeguards that the legislature, by statute,
and our supreme court, by rule, have implemented to protect the due
process rights of parents.” Logan B., 244 Ariz. at 538, ¶ 16; see also Francine
C., 249 Ariz. at 296–98, ¶¶ 16–18, 21; see also 89 C.J.S. Trial § 1285 (2020)
(stating a court’s written findings of fact and conclusions of law prevail over
oral pronouncements from the bench). Accordingly, our decision is based
only on the court’s written dependency order.
¶16 Because we vacate and remand the dependency order, the
court on remand must allow the parties to present additional evidence to
support the current circumstances if the parties so request. See Shella H.,
239 Ariz. at 48, ¶ 1 (“[T]he juvenile court must consider the circumstances
as they exist at the time of the dependency adjudication hearing . . . .”).
CONCLUSION
¶17 We vacate the juvenile court’s dependency order and remand
for further proceedings consistent with this decision.
AMY M. WOOD • Clerk of the Court
FILED: AA
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