Oscar F. v. Dcs, E.F., M.f, C. F. G.F. and L.F.

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO
OSCAR F.,
Appellant,
v.
DEPARTMENT OF CHILD SAFETY, E.F., M.F., C.F., G.F., AND L.F.,
Appellees.
No. 2 CA-JV 2014-0008
Filed July 30, 2014
Appeal from the Superior Court in Pima County
No. J203687
The Honorable Susan A. Kettlewell, Judge Pro Tempore
AFFIRMED
COUNSEL
Emily Danies, Tucson
Counsel for Appellant
Thomas C. Horne, Arizona Attorney General
By Erika Z. Alfred, Assistant Attorney General, Tucson
Counsel for Appellee Department of Child Safety
OPINION
Judge Vásquez authored the opinion of the Court, in which
Presiding Judge Kelly and Judge Howard concurred.
OSCAR F. v. DCS
Opinion of the Court
V Á S Q U E Z, Judge:
¶1 Oscar F. appeals from the juvenile court’s order finding
his five children, E.F., M.F., C.F., G.F., and L.F., dependent as to
him. 1 We affirm the court’s dependency order for the following
reasons.
Factual and Procedural Background
¶2 When Oscar and the children’s mother, J.S., divorced in
February 2011, they were awarded joint legal custody of the
children, as well as equal parenting time. According to a
Department of Child Safety (DCS) report, 2 the domestic relations
court had nonetheless noted “evidence that the children were
mistreated, abused, and neglected while in [Oscar’s] care.” In late
2011, DCS received a report that C.F., then eight, had twice become
hysterical at school on days he was scheduled to go to Oscar’s house
at the end of the day; C.F. had said that he was afraid of Oscar, that
Oscar “hurts him . . . all the time,” and that Oscar had, in the past,
“pushed him against the wall and dropped him on his head.”
¶3 The investigation of these incidents was still open
when, in February 2013, one of C.F.’s siblings told J.S. that, during a
recent visit, Oscar had picked C.F. up to “chest level” and thrown
1The children range in age from six to fifteen years old.
2The report was prepared by an employee of Child Protective
Services (CPS), formerly a division of the Arizona Department of
Economic Security (ADES). Effective May 29, 2014, the Arizona
legislature repealed the statutory authorization for CPS and for
ADES’s administration of child welfare and placement services
under title 8 and transferred powers, duties, and purposes
previously assigned to those entities to the newly established
Department of Child Safety (DCS). See 2014 Ariz. Sess. Laws 2d
Spec. Sess., ch. 1, §§ 6, 20, 54. Accordingly, DCS has been
substituted for ADES in this matter. See Ariz. R. Civ. App. P. 27. For
simplicity, our references to DCS in this decision encompass both
ADES and the former CPS.
2
OSCAR F. v. DCS
Opinion of the Court
him to the floor, causing him to hit his head hard on the ground.
When J.S. later took C.F. to the hospital, he was diagnosed with a
concussion, headache, and emotional distress. In individual
interviews with the Southern Arizona Children’s Advocacy Center
(CAC), C.F., G.F., and L.F. reported that Oscar had thrown C.F. to
the ground, said that they felt unsafe with Oscar because he was
“mean,” and reported other instances of physical abuse.
¶4 DCS took the children into temporary custody, placed
them with J.S., and filed a dependency petition in which it alleged
that Oscar had physically abused C.F. and that J.S. had failed to
protect the children from Oscar’s abuse. In amended dependency
petitions, DCS further alleged that J.S. had “engage[d] in acts of
verbal domestic violence” against the children and that Oscar had
emotionally abused C.F. After a facilitated settlement conference,
J.S. agreed to participate in in-home intervention services, but Oscar
elected to proceed directly to a dependency adjudication hearing.
¶5 After a dependency adjudication hearing that spanned
several days, the juvenile court found DCS had proven its
allegations against Oscar by a preponderance of the evidence and
adjudicated the children dependent as to him. 3 This appeal
followed.
Discussion
¶6 “On review of an adjudication of dependency, we view
the evidence in the light most favorable to sustaining the juvenile
court’s findings. We generally will not disturb a dependency
adjudication unless no reasonable evidence supports it.” Willie G. v.
Ariz. Dep’t of Econ. Sec., 211 Ariz. 231, ¶ 21, 119 P.3d 1034, 1038 (App.
2005) (internal citation omitted). But we review de novo legal issues
involving the juvenile court’s interpretation of a statute or
procedural rule. Bobby G. v. Ariz. Dep’t of Econ. Sec., 219 Ariz. 506,
3The juvenile court found the allegation of a current “criminal
investigation pending against [Oscar]” had not been proven, but
found “the remainder of the allegation” that Oscar had physically
abused C.F. was established by a preponderance of the evidence.
3
OSCAR F. v. DCS
Opinion of the Court
¶ 1, 200 P.3d 1003, 1005 (App. 2008); Manuel M. v. Ariz. Dep’t of Econ.
Sec., 218 Ariz. 205, ¶ 18, 181 P.3d 1126, 1131 (App. 2008).
¶7 Oscar first argues the juvenile court erred as a matter of
law in concluding it could adjudicate the children dependent as to
him “when the other parent”—J.S.—“had voluntarily agreed to
services in the home without an adjudication of dependency.”
According to Oscar, although the dependency petition, as to J.S.,
“remains un-adjudicated and stayed, [DCS] is NOT the legal
guardian of the children.” He argues the court erred because J.S. “is
exercising care and control over the children” in an in-home
placement and, therefore, “the children cannot be dependent” under
the statutory definition.
¶8 A dependent child is defined, in relevant part, as one
who is “[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(14)(a)(i), or one
“whose 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,” § 8-201(14)(a)(iii). After a dependency
petition has been filed, a juvenile court “may order in-home
intervention” for a child who has not been removed from the home
upon finding that, although a “parent, guardian or custodian is
unable to provide proper care, control and supervision of the child,”
“[i]n-home intervention appears likely to resolve [those] risk issues”
and “[t]he parent, guardian or custodian agrees to a case plan and
participation in services” to accomplish that end. A.R.S. § 8-891(A).
An in-home intervention “shall not exceed one year without review
and approval by the court.” § 8-891(C).
¶9 Throughout the duration of an in-home intervention
period, the dependency petition remains pending, and “[i]f the
parent, guardian or custodian violates the in-home intervention
order, the court may take whatever steps it deems necessary to
obtain compliance or may rescind the order and set the dependency
adjudication hearing” on the petition. A.R.S. § 8-892. But “if the
specific time for completion of the in-home intervention has expired
without being extended by the court and a dependency adjudication
4
OSCAR F. v. DCS
Opinion of the Court
hearing has not been set as provided in § 8-892,” the dependency
petition will be dismissed. § 8-891(C).
¶10 Oscar therefore is mistaken that the children’s in-home
placement with J.S. means they cannot be dependent. Since the day
after the dependency petition was filed, the children have been
“temporary wards of the Court, committed to the legal care, custody
and control of . . . [DCS] and placed in the physical custody” of J.S.
The children’s placement with J.S., subject to in-home intervention
and DCS supervision, does not alter the allegations in the petition or
somehow constitute a finding that J.S. is willing and able to exercise
proper and effective parental care and control, as Oscar seems to
suggest.
¶11 To the contrary, the allegations with respect to J.S. have
simply been held in abeyance in accordance with § 8-891. In
agreeing to participate in an in-home intervention, J.S. was required
to acquiesce in the juvenile court’s determination that, without such
intervention, she was unable to provide proper care, control, and
supervision of the children, see § 8-891(A)(3), (4)(b); but the statute
permits her to do so while continuing to contest the petition’s
allegations, see § 8-892. We conclude this circumstance is
encompassed by the court’s authority, pursuant to A.R.S. § 8-844(D),
to adjudicate children dependent as to one parent, notwithstanding
unresolved and contested dependency allegations with respect to
the other. 4 The court did not err in adjudicating the children
4 Withrespect to a juvenile court’s authority to adjudicate
children dependent as to one parent, without addressing
dependency allegations against the other, § 8-844(D) provides as
follows:
The court may adjudicate a child
dependent as to one parent or guardian
and proceed with a disposition, review or
permanency hearing or any other hearing
as to that particular parent or guardian
notwithstanding another parent’s or
guardian’s request to contest the
5
OSCAR F. v. DCS
Opinion of the Court
dependent as to Oscar while allegations against J.S. remained
pending.5
¶12 Oscar next argues the evidence was insufficient to
support the juvenile court’s findings, by a preponderance of the
evidence, that he had physically and emotionally abused C.F. He
maintains “the only assertions of physical abuse . . . to any medical
personnel” were made by J.S., “with no corroboration by C.F.” He
also challenges the credibility of the psychologist who examined
C.F. and concluded C.F. was a victim of emotional abuse who
suffered “ongoing emotional trauma, likely [caused] by both
parents.” But the court also relied on video records of the children’s
interviews, which corroborated reports of the abuse, and it expressly
found “no indication that the children were coached to make
statements detrimental to [Oscar],” contrary to Oscar’s assertions at
the hearing.
¶13 The juvenile court, as the trier of fact, “is 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, ¶ 4, 100 P.3d 943, 945 (App.
2004). We do not reweigh the evidence on review, id. ¶ 14, and we
make no exception here.
Disposition
¶14 The juvenile court was authorized by statute to
adjudicate the children dependent as to Oscar, notwithstanding
allegations in the petition or that another
parent or guardian has not been served.
5 Because we conclude the juvenile court acted within its
authority, pursuant to § 8-844(D), we need not consider DCS’s
argument, in the alternative, that the children could be adjudicated
dependent as to Oscar alone because their “home”—if understood to
mean the home they shared intermittently with Oscar as part of a
joint custody order—“is unfit by reason of abuse, neglect, cruelty or
depravity by a parent . . . .” § 8-201(14)(a)(iii).
6
OSCAR F. v. DCS
Opinion of the Court
unresolved dependency allegations against the children’s mother,
J.S., who was participating in an in-home intervention at the time of
the adjudication. The court’s ruling is supported by reasonable
evidence in the record. Accordingly, we affirm the court’s order
adjudicating E.F., M.F., C.F., G.F., and L.F. dependent as to Oscar.
7