                      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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                           FATEAMA M., Appellant,

                                         v.


             DEPARTMENT OF CHILD SAFETY, J.B., Appellees.

                              No. 1 CA-JV 16-0024
                                FILED 10-13-2016


             Appeal from the Superior Court in Apache County
                          No. S0100JD201500010
             The Honorable C. Allan Perkins, Judge Pro Tempore

                       VACATED AND REMANDED



                                    COUNSEL

Williams Law Group, Show Low
By Elizabeth M. Hale
Counsel for Appellant

Arizona Attorney General’s Office, Tucson
By Dawn R. Williams
Counsel for Appellee Department of Child Safety
                        FATEAMA M. v. DCS, J.B.
                          Decision of the Court



                      MEMORANDUM DECISION

Judge John C. Gemmill1 delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani and Judge Lawrence F. Winthrop joined.


G E M M I L L, Judge:

¶1            Fateama M. (“Mother”) appeals the juvenile court’s order
adjudicating her child, J.B., dependent as to her on the basis of neglect due
to mental illness. For the following reasons, we vacate the juvenile court’s
ruling and remand for dismissal of the dependency petition.

                             BACKGROUND

¶2           On June 25, 2015, the Department of Public Safety (“DPS”)
found Mother and J.B. stranded on Interstate 40, near the Petrified Forest
National Monument. The two were on their way from Texas back to
California, where Mother resides, when Mother’s car broke down. They
were stranded for at least two days with little food or water.

¶3            While assisting Mother, DPS officers observed a series of
unusual behaviors. Mother acted paranoid, was uncooperative with DPS
personnel and a tow truck driver, and did not allow DPS to give her or J.B.
food or water. Mother did not allow the DPS officer to tow her car to a
service station, but instead demanded they drop the car at a nearby gas
station. Mother further refused to drink or allow J.B. to drink from water
bottles offered by a Park Ranger because she believed the water was
poisoned. Mother also denied a DPS officer’s request that she let J.B. out of
the car so that he would not become too hot.

¶4            Because of Mother’s behavior, DPS requested the help of
emergency medical personnel. Title 362 proceedings were initiated, and
Mother was admitted to Pineview Hospital for an involuntary mental
health evaluation. Mother was discharged from Pineview on June 29, 2015.
At discharge, Mother received a letter from Dr. A. Henri Moyal stating “she


1      The Honorable John C. Gemmill, Retired Judge of the Court of
Appeals, Division One, has been authorized to sit in this matter pursuant
to Article VI, Section 3 of the Arizona Constitution.
2      See Arizona Revised Statutes (“A.R.S.”) section 36-501, et seq.


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                         FATEAMA M. v. DCS, J.B.
                           Decision of the Court

had become suddenly very acutely confused, and very likely her unusual
state of mind has a lot to do with a severe blood chemistry imbalance.” J.B.
was taken into Department of Child Safety (“DCS”) custody, and DCS filed
a dependency petition alleging neglect on the part of Mother.

¶5             A dependency hearing was held on two separate days in
September and October 2015. At the conclusion of the evidence, the
juvenile court found DCS had proven by a preponderance of the evidence
that the allegations in the petition were true. The court ruled J.B. dependent
as to Mother on the ground of neglect due to mental illness, and Mother
timely appeals. This court has jurisdiction under Arizona Revised Statutes
(“A.R.S.”) sections 8-235(A), 12-120.21(A)(1) and -2101(A)(1), and Arizona
Rules of Procedure for the Juvenile Court 103(A).

                                ANALYSIS

¶6            A child is dependent when he “has no parent or guardian . . .
willing to exercise or capable of exercising” proper and effective parental
care. A.R.S. § 8-201(15)(a)(i). Mother offers two reasons why the juvenile
court erred by finding J.B. dependent. She argues the juvenile court’s
decision was not based on circumstances as they existed at the time of the
adjudication, but on circumstances as they existed at the time of J.B.’s
removal. See Shella H. v. Dep’t of Child Safety, 239 Ariz. 47, 50, ¶ 12 (App.
2016). Mother also argues the evidence presented at the dependency
hearing was insufficient to form a factual basis for a dependency finding.

¶7            We review the juvenile court’s ruling for an abuse of
discretion, and we accept the juvenile court’s findings of fact “unless no
reasonable evidence supports” them. Jesus M. v. Ariz. Dep’t of Econ. Sec., 203
Ariz. 278, 280, ¶ 4 (App. 2002).

I.     Basis of Dependency Finding

¶8            Mother argues the juvenile court’s ruling relied solely on the
circumstances of J.B.’s removal on June 25 rather than the circumstances at
the time of the hearing. She contends the ruling is therefore inappropriate
because it articulated the “wrong moment in time when the dependency
must be found.” See Shella H., 239 Ariz. at 51, ¶ 17.

¶9           When it ruled J.B. dependent on October 1, 2015, at the end of
the two-day hearing, the juvenile court made the following statements:

       Again, the issue is, did the state prove by a preponderance of
       the evidence that you suffered from a mental illness, and


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                          FATEAMA M. v. DCS, J.B.
                            Decision of the Court

       secondly, that because of that, your son was neglected. And
       neglect means unable or unwilling to provide the care
       needed.

       My answer, my ruling is that on the 25th of June, and for several
       days following that, by a preponderance of the evidence, the
       state has proven its case and, thus, I will find [J.B.] dependent.

(Emphasis added.)

We agree with Mother that the court erred by focusing on past events,
because a dependency adjudication must be “based upon the circumstances
existing at the time of the adjudication hearing” and not merely on past
circumstances. See id. at 50, ¶ 12; see also A.R.S. § 8-201(14)(a)(i) (defining a
dependent child in the present tense as one who “has no parent or guardian,
or one who has no parent or guardian willing to exercise or capable of
exercising such care and control”) (emphasis added); A.R.S. § 8-
201(14)(a)(iii) (defining a dependent child in the present tense as one whose
“home is unfit by reason of abuse, neglect, cruelty or depravity by a
parent”) (emphasis added). Based on our review of the record, we agree
with Mother that the basis for the juvenile court’s ruling was Mother’s
behavior during past events—“on the 25th of June, and for several days
following that”—rather than her current condition at the conclusion of the
hearing on October 1.

II.    Sufficiency of the Evidence

¶10           DCS argues that notwithstanding any error in the timeframe
articulated by the juvenile court’s ruling, there was “reasonable evidence”
to prove Mother’s inability or unwillingness to parent J.B. at the time of the
hearing. See Shella H., 239 Ariz. at 51, ¶ 17 (upholding a dependency
adjudication that “articulated the wrong moment in time when the
dependency must be found” because it was still supported by “objectively
sufficient” evidence of a continuing potential threat of regularly occurring
domestic violence).3 A dependency adjudication requires proof by a
preponderance of the evidence. A.R.S. § 8-844(C)(1). Because Mother
argues against the sufficiency of the evidence supporting the juvenile
court’s ruling, this court must determine whether the ruling was based on


3       This court need not determine if it agrees with the “objectively
sufficient” harmless error standard posited by the court in Shella H. Even
assuming the “objectively sufficient” approach is applicable here, the result
remains the same.


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                         FATEAMA M. v. DCS, J.B.
                           Decision of the Court

“substantial evidence.” Denise R. v. Ariz. Dep’t of Econ. Sec., 221 Ariz. 92,
93–94, ¶ 4 (App. 2009).

¶11           After reviewing the evidence presented at the hearing, we
conclude that the juvenile court did not have substantial evidence to
support its dependency adjudication when properly focused on Mother’s
condition at the time of the hearing. First, the only testimony from a
medical or mental health professional came from Dr. Aaron Moyal, who
treated Mother during her stay at Pineview Hospital. Dr. Moyal testified
that Mother’s mental instability at the time of the incident was acute rather
than ongoing. Although there was evidence that Mother did not take or
may have delayed in taking the psychotropic medication Dr. Moyal
prescribed to her upon discharge, Dr. Moyal indicated that he could not
conclude that Mother’s failure to do so would cause her to decompensate
or become incapable of parenting.4 Second, although the juvenile court
heard testimony from several DCS case workers who had worked with
Mother after the roadside incident, none of the case workers testified as to
Mother’s mental condition at the time of the hearing. Despite Mother’s
ongoing, twice-weekly supervised visits with J.B., testimony from DCS was
essentially limited to interactions with her that occurred well before the
hearing took place.5 The events surrounding June 25 are contextually
important and support the initial decision to remove J.B. from his Mother’s
care at that time, but the issue presented in this appeal is whether the
evidence was sufficient to support a determination of dependency as of the
time of the hearing. See Shella H., 239 Ariz. at 50, ¶ 12 (“DCS concedes on
appeal that the court must determine whether a child is dependent based
upon the circumstances existing at the time of the adjudication hearing.”).

¶12            Furthermore, the juvenile court itself concluded that it did not
know, and in fact nobody knew, whether the mental instability that existed
at the time of the roadside incident still existed at the time of the hearing:

       [T]he state has proven its case and, thus, I will find [J.B.]
       dependent.




4     Mother testified that she filled the prescription on July 13, 2015.
5     Similarly, in the juvenile court’s February 2016 formal order of
dependency, nearly all of the factual findings cited in support of the court’s
dependency adjudication were based on the events surrounding the
roadside incident.


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                        FATEAMA M. v. DCS, J.B.
                          Decision of the Court

      My problem is I don’t know if those conditions [that existed
      at the time of the incident] exist today. The state doesn’t
      know. Nobody knows.

Such a statement is inconsistent with a ruling that Mother’s current
situation warranted an adjudication of dependency. And, because the only
evidence provided by a medical or mental health professional indicated
that Mother’s initial instability was an acute, rather than an ongoing
condition, the State did not present sufficient evidence to establish that
Mother’s mental instability was ongoing at the time of the hearing.
Accordingly, the State did not meet its burden of proving that Mother was
incapable of parenting due to mental illness. See Ariz. R.P. Juv. Ct. 55(C)
(“The petitioner must prove the allegations in the petition by a
preponderance of the evidence.”).

                              CONCLUSION

¶13           On this record, we cannot conclude that the juvenile court’s
ultimate conclusion was supported by substantial evidence. See Denise R.,
221 Ariz. at 93–94, ¶ 4. We therefore vacate the juvenile court’s finding of
dependency and remand for dismissal of the petition.




                          AMY M. WOOD • Clerk of the Court
                          FILED: AA




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