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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                                   ADRIAN B.,
                                    Appellant,

                                         v.

              DEPARTMENT OF CHILD SAFETY, A.H., A.H.,
                            Appellees.

                              No. 1 CA-JV 19-0071
                                FILED 9-17-2019


            Appeal from the Superior Court in Maricopa County
                              No. JD36355
                    The Honorable Sara J. Agne, Judge

                                   AFFIRMED


                                    COUNSEL

John L. Popilek, PC, Scottsdale
By John L. Popilek
Counsel for Appellant

Arizona Attorney General's Office, Tucson
By Autumn Spritzer
Counsel for Appellee DCS
                          ADRIAN B. v. DCS, et al.
                           Decision of the Court



                       MEMORANDUM DECISION

Judge Diane M. Johnsen delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge David D. Weinzweig joined.


J O H N S E N, Judge:

¶1            Adrian B. ("Mother") appeals the superior court's order
finding her children dependent.1 For the following reasons, we affirm.

              FACTS AND PROCEDURAL BACKGROUND

¶2             Mother has two children, born in August 2017 and September
2018, respectively.2 Just before her second child was born, Mother and the
children's father ("Father") left their first child with a babysitter and went to
a party. According to the Department of Child Safety ("DCS"), Mother
reported that she used methamphetamines three or four times that night,
"to please [Father]." She went into labor within 48 hours thereafter and
delivered their second child, who was born substance-exposed. DCS took
custody of both children and filed a dependency petition alleging the
children were dependent as to both Mother and Father based on, inter alia,
substance abuse and domestic violence.

¶3            While the dependency petition was pending, DCS provided
Mother and Father with drug testing, domestic-violence counseling and
parent-aide services. By DCS's own account, the parents participated in
those services and were mostly successful.

¶4            Despite the parents' general success with services, however,
DCS still had concerns about domestic violence. Mother disclosed that
Father had pushed her one day in 2017 as she held their first child, and she
had left him temporarily. After Father told his counselor in October 2018
that he has anger issues that arise when he drinks, Father tested positive for


1       The superior court also found the children dependent as to their
father; that ruling is not at issue in this appeal.

2       We view the facts and reasonable inferences therefrom in the light
most favorable to affirming the superior court's order. Ariz. Dep't of Econ.
Sec. v. Matthew L., 223 Ariz. 547, 549, ¶ 7 (App. 2010).


                                       2
                          ADRIAN B. v. DCS, et al.
                           Decision of the Court

alcohol on November 8, 2018. A week later, Mother told her counselor that
Father was still drinking alcohol and had become verbally, emotionally and
physically abusive, grabbing and threatening her and damaging property.
Mother made similar reports during a November 29, 2018, call to the DCS
case manager, in which, as DCS reported, she asserted "there is DV in
relationship with Father" and that Father was sending her threatening texts.
Mother again called the case manager in December 2018, stating that Father
was drunk, hitting her and throwing things at her. Despite her reports,
Mother continued to live with Father and hung up when the case manager
offered to help find her a shelter. Mother later recanted her statements
about Father's domestic violence.

¶5           After hearing the evidence, the superior court praised the
parents' progress with services but found the children dependent as to both
parents. The court expressly noted that it found the DCS case manager's
accounts of Mother's telephone calls about Father to be credible.

¶6            Mother timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution, and Arizona Revised
Statutes ("A.R.S.") sections 8-235(A) (2019), 12-120.21(A)(1) (2019),
-2101(A)(1) (2019) and Arizona Rule of Procedure for the Juvenile Court
103(A).3

                                DISCUSSION

¶7            We review the court's dependency order for an abuse of
discretion; we will reverse such an order only when no reasonable evidence
supports it. Shella H. v. Dep't of Child Safety, 239 Ariz. 47, 50, ¶ 13 (App.
2016). The primary considerations in a dependency proceeding are the
welfare and best interests of the child. Michael M. v. Ariz. Dep't of Econ. Sec.,
217 Ariz. 230, 234, ¶ 17 (App. 2007). The superior court is in the best
position to assess the credibility of witnesses and weigh the evidence, Pima
County Dependency Action No. 93511, 154 Ariz. 543, 546 (App. 1987), and we
will not second-guess its assessments, see Shella H., 239 Ariz. at 50, ¶ 15.

¶8              DCS must prove by a preponderance of the evidence that a
child is dependent. See id. at 49-50, ¶¶ 11, 13. A child is dependent when
the child is "[i]n need of proper and effective parental care and control and
. . . has no parent . . . willing to exercise or capable of exercising such care
and control." A.R.S. § 8-201(15)(a)(i) (2019). Although the superior court


3      Absent material revision after the relevant date, we cite the current
version of a statute or rule.


                                       3
                          ADRIAN B. v. DCS, et al.
                           Decision of the Court

rules based on the circumstances at the time of the adjudication hearing,
Shella H., 239 Ariz. at 50, ¶ 12, a "substantiated and unresolved threat" of
domestic violence is sufficient to support a finding of dependency, even
when actual violence is not "continuous or actively occurring," id. at 51, ¶
16. This is particularly true when parents deny such a threat exists. Id.

¶9             Reasonable evidence supports the superior court's
dependency finding. The court heard evidence that Mother reported on
multiple occasions that Father had acted violently towards her. These
reports included an instance while she was holding their first child and
another less than two months before the adjudication hearing. Although
Mother challenges the credibility of the DCS case manager's testimony
about the November and December 2018 incidents of domestic violence, we
will not second-guess the court's finding that the case manager's testimony
was credible. See id. at 50, ¶ 15. These reports provide reasonable evidence
to support a finding that an "unresolved threat" of domestic violence
remained at the time of the hearing. See id. at 51, ¶ 16. Mother's later denials
of those incidents, along with her decision to continue living with Father,
could constitute reasonable evidence that she is not willing or capable of
exercising proper and effective parental care and control. See id. at ¶¶ 16-
17; see also Pima County Juvenile Dependency Action No. 96290, 162 Ariz. 601,
604-05 (App. 1990).

                               CONCLUSION

¶10           For the reasons stated above, we affirm the dependency
order.




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




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