                               IN THE
            ARIZONA COURT OF APPEALS
                            DIVISION ONE


                        SHELLA H., Appellant,

                                   v.

DEPARTMENT OF CHILD SAFETY, J.G., G.H., A.H., A.H., I.H., Appellees.

                          No. 1 CA-JV 15-0140
                            FILED 1-12-2016


          Appeal from the Superior Court in Maricopa County
                            No. JD29771
                 The Honorable Connie Contes, Judge

                             AFFIRMED


                              COUNSEL

Maricopa County Public Advocate, Mesa
By David C. Lieb
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By JoAnn Falgout
Counsel for Appellees



                              OPINION

Presiding Judge Kenton D. Jones delivered the opinion of the Court, in
which Judge Samuel A. Thumma and Judge Peter B. Swann joined.
                         SHELLA H. v. DCS, et al.
                           Opinion of the Court

J O N E S, Judge:

¶1             Shella H. (Mother) appeals the juvenile court’s order
adjudicating J.R.H., G.R.H., A.D.H.H., A.H., and I.H. (the Children)
dependent. We hold the 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. Because the record
contains reasonable evidence to support the court’s order finding the
Children were dependent as to Mother on the ground of domestic violence
at the time of the dependency adjudication hearing, we affirm.

                FACTS1 AND PROCEDURAL HISTORY

¶2            In January 2015, Mother left the Children, ages eleven, ten,
seven, two, and six months, unsupervised in a hotel room where they were
living, while she was passed out in the bathroom after vomiting blood on
the floor and sink. When the Children found Mother unresponsive, they
contacted a maternal aunt who called emergency services. Mother was
admitted to the hospital; subsequent testing revealed her blood alcohol
concentration was 0.24. Because the Children were unattended and their
father (Father) was incarcerated in California at the time,2 the Department
of Child Safety (DCS) assumed temporary custody of the Children and
placed them in licensed foster homes.

¶3            Subsequent investigation revealed a significant history of
domestic violence between Mother and Father. In fact, Father’s recent
incarceration resulted from an arrest in December 2014 after he choked
Mother, punched her in the face four times, and “held her hostage” in the
presence of the Children. When admitted at the hospital in January 2015,
Mother reported she suffered several broken ribs from the altercation and
moved to Arizona to “escape” the abusive relationship. On the same day
the Children discovered their Mother unconscious in a pool of blood and



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      The Children were adjudicated dependent as to Father on February
12, 2015 on the grounds of neglect, mental health issues, domestic violence,
and substance abuse. He did not challenge this determination and is not a
party to this appeal.



                                     2
                         SHELLA H. v. DCS, et al.
                           Opinion of the Court

vomit,3 Father pled guilty to five counts of child endangerment and was
sentenced to probation for two years plus time served. Upon his release,
Father immediately attempted to reestablish contact with Mother and the
Children.

¶4             Mother told a DCS caseworker that the “domestic violence
relationship” with Father had lasted for fifteen years. As a result, both
parents had been arrested and both had obtained orders of protection
against the other. The three oldest children confirmed regular physical
arguments between their parents which had sometimes resulted in physical
injury to the Children as well. They also reported Father hit them with belts
and other objects and slapped them across the face.

¶5             DCS was further concerned about the effect of the family’s
transient lifestyle on the Children. The parents reported moving every few
days from hotels, the family vehicle, and “the woods.” At the adjudication
hearing, Mother was unable to provide a physical address for any prior
residence.4 Aside from J.R.H. attending kindergarten for a short time, the
Children had never attended school; neither had they received any regular
medical care for at least the past six years. The two youngest children, along
with a deceased son, were born in hotels. Additionally, Mother had a long
history of alcohol abuse, and Father reported using marijuana on a regular
basis.

¶6            DCS filed a petition alleging the Children were dependent as
to Mother as a result of substance abuse, domestic violence, and neglect. At
the dependency adjudication hearing held in March 2015, DCS called
Mother as its first witness.

¶7             Mother testified the Children were removed while she was in
the hospital because she was “sick” and throwing up blood but denied her
ill health resulted from alcohol consumption. When questioned regarding


3       Mother initially testified her sister picked the Children up from
school on this day, where they were later removed by DCS, suggesting the
Children were never at the hotel with her. This statement is contrary to her
later testimony that her children had not attended school since her now-
sixth grader went to kindergarten.

4      Again, Mother testified inconsistently, first asserting she lived in
Portland for the past eleven years, and then stating she moved to Arizona
when her now seven-year-old son was born.



                                      3
                         SHELLA H. v. DCS, et al.
                           Opinion of the Court

the domestic violence with Father, Mother stated she “would agree that yes,
there’s been arguing,” but it rose to the level of physical violence on only a
single occasion, in December 2014.5 She also denied sustaining any injury
or seeking medical treatment after the incident, maintaining Father “was
not convicted of that,” and his child endangerment convictions “w[ere] for
yelling in front of them.” Mother testified she did obtain an order of
protection against Father, but only because she was advised by DCS to do
so, and said she had no concern, at any time, for her safety or that of the
Children. She further denied making any of the contrary comments that
were reflected in reports from medical personnel and the DCS case
manager.

¶8             On cross-examination, Mother’s counsel focused her
presentation upon evidence suggesting out-of-home care was no longer
necessary. Mother provided significant evidence and testimony describing
her compliance with random urinalysis testing demonstrating she was
substance free and her participation in parent aide services, substance
abuse treatment, Alcoholics Anonymous meetings, domestic violence
counseling, couples counseling, parenting classes, and visitation. Her
counsel argued DCS could, and should, continue to provide services while
the Children remained in her care and implement a safety plan to address
the domestic violence. Mother further argued DCS failed to present any
evidence the Children were actually harmed by her religious-based
objections to traditional schooling and medical care.

¶9            At the conclusion of DCS’s presentation, Mother’s counsel
called the current DCS case manager to testify. Counsel for DCS questioned
the relevance of testimony from an individual who did not receive the case
until “well over a month after removal,” and the juvenile court judge
agreed, stating evidence regarding Mother’s efforts to remedy “would
come after a dependency finding.” The judge allowed the testimony, but
advised she would only give that evidence the weight she believed it
deserved, explicitly noting her understanding that DCS’s burden was “to
prove the allegations as they existed at the time the dependency was filed
. . . not whether or not Mother has remedied those.” The judge further
advised she would not “expand this beyond a dependency adjudication”




5      This position is inconsistent with prior documented arrests and
reports to child protective service agencies in other states, as well as
Mother’s initial request that Father not participate in the team decision-
making meeting.

                                      4
                         SHELLA H. v. DCS, et al.
                           Opinion of the Court

and cautioned she “may well sustain an objection to going beyond the scope
of necessary evidence for the dependency adjudication.”

¶10          The current DCS case manager confirmed DCS had requested
Mother participate in urinalysis testing, substance abuse treatment, and
parent aide services, that these services were initiated quickly after the
Children were removed, and Mother had not tested positive for any
substances since the removal.

¶11           After taking the matter under advisement, the juvenile court
issued a ruling finding DCS had proven by a preponderance of the evidence
the Children were dependent as to Mother on all three grounds alleged.
Mother timely appealed. We have jurisdiction pursuant to Arizona Revised
Statutes (A.R.S.) sections 8-235(A),6 12-120.21(A)(1), and -2101(A)(1) and
Arizona Rules of Procedure for the Juvenile Court 103(A). See Yavapai Cnty.
Juv. Action No. J-8545, 140 Ariz. 10, 14 (1984) (holding “orders declaring
children dependent . . . are final orders subject to appeal by aggrieved
parties”).

                              DISCUSSION

¶12            Mother argues the juvenile court erred by focusing on
whether the Children were dependent at the time they were removed,
rather than whether the Children remained dependent at the time of the
adjudication. 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. See 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), (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); see
also A.R.S. § 8-844(B) (requiring the court to consider present circumstances
that would “eliminate the need for removal of the child”), (C)(1) (directing
the court to determine “that the allegations contained in the petition are
true”) (emphasis added). DCS argues, however, the court’s order
adjudicating the Children dependent is supported by reasonable evidence
establishing Mother remained unable or unwilling to parent at the time of



6     Absent material revisions from the relevant date, we cite a statute’s
current version.



                                     5
                         SHELLA H. v. DCS, et al.
                           Opinion of the Court

the adjudication hearing as a result of domestic violence, and therefore, we
should affirm.7

¶13            A finding of dependency requires proof by a preponderance
of the evidence. A.R.S. § 8-844(C)(1). We review an order adjudicating a
child dependent for an abuse of discretion, deferring to the juvenile court’s
ability to weigh and analyze 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. Id. (citing Willie G., 211
Ariz. at 235, ¶ 21).

¶14           A child may be dependent when the parent is unwilling or
unable to protect the child from abuse. See Pima Cnty. Juv. Action No.
J-77188, 139 Ariz. 389, 392 (App. 1983) (“Effective parental care clearly
implies prevention of sexual as well as other physical abuse.”); see also Pima
Cnty. Juv. Dependency Action No. 96290, 162 Ariz. 601, 605 (App. 1990) (“A
finding of dependency may be predicated on one parent’s failure to prevent
abuse by another parent.”) (citing Pima Cnty. Juv. Dependency Action No.
97247, 158 Ariz. 55, 57 (App. 1988)). In adjudicating the Children dependent
as to Mother on the ground of domestic violence, the juvenile court made
the following findings:

             Mother admitted she and Father had been in a violent
              relationship for fifteen years and also identified two
              instances, one in 2012 and one in 2014, where either
              Mother or Father had been arrested for domestic
              violence.

             The Children witnessed Mother and Father engaging
              in violent altercations many times, which included
              watching Father choke Mother, and reported that
              Father is scary during these events.

             A.D.H.H. suffered a broken wrist on one occasion
              when he attempted to intervene on Mother’s behalf
              during an altercation.




7      DCS does not argue on appeal that the order adjudicating the
Children dependent should be upheld on the grounds of substance abuse
or neglect.

                                      6
                           SHELLA H. v. DCS, et al.
                             Opinion of the Court

              Mother voluntarily released the order of protection she
               obtained against Father following the December 2014
               altercation after only one day.

¶15            Importantly, the juvenile court made a specific finding that
“during her own testimony, [M]other attempted to minimize the length,
scope, and nature of domestic violence history between [M]other and
[F]ather.” We will not second-guess the court’s assessment of Mother’s
credibility as a witness. See Christina G. v. Ariz. Dep’t of Econ. Sec., 227 Ariz.
231, 234, ¶ 13 (App. 2011) (“The juvenile court is in the best position to
weigh the evidence, observe the parties, judge the credibility of witnesses,
and make appropriate findings.”) (citing Jesus M. v. Ariz. Dep’t of Econ. Sec.,
203 Ariz. 278, 280, ¶ 4 (App. 2002)). Moreover, this finding contradicts
Mother’s contention that, had she been granted greater opportunity at the
adjudication hearing to elicit information, she would have been able to
demonstrate that the circumstances giving rise to the removal on the basis
of domestic violence had been eliminated. Mother testified first, before any
discussion regarding the applicable standard; she had an opportunity to
discuss, at length, her sobriety, her housing situation, and her participation
in services including domestic violence counseling.8 Yet, when given the
opportunity to establish that the Children would be safe in her care, she
chose instead to test the court’s tolerance with implausible testimony.

¶16           And, contrary to Mother’s assertion, domestic violence need
not be continuous or actively occurring at the time of the adjudication
hearing to support a finding of dependency on these grounds; the
substantiated and unresolved threat is sufficient. See 96290, 162 Ariz. at 604
(rejecting argument that juvenile court erred in adjudicating a child
dependent when he was born after events giving rise to a finding of
dependency for his older siblings, and noting instead that “[a]ssuming that
the state can prove the conditions creating the dependency as to the older
children, and that those conditions pose an imminent risk of harm to the
newborn, the statute does not preclude the state from acting to protect the
newborn until a specific injury has been inflicted upon him”). This is


8      The court sustained only one of DCS’s objections to the relevance of
the testimony sought to be elicited by Mother’s attorney, determining that
whether DCS asked Mother to complete domestic violence counseling was
not relevant to the dependency adjudication. Mother has not and cannot
establish prejudice from preclusion of that information where she had
already presented testimony and evidence that she had self-referred and
was actively engaged in domestic violence counseling.

                                        7
                         SHELLA H. v. DCS, et al.
                           Opinion of the Court

particularly true where, as here, the parent denies the alleged conduct. As
we have previously held:

      [This Court] will not hesitate to affirm a finding of
      dependency as to parents who presently deny that they are
      responsible for past abuse and neglect for the obvious reason
      that such denial of responsibility supports a finding that their
      children do not have parents presently willing to or capable
      of exercising proper and effective parental care and control.
      To hold otherwise would permit an abusive or neglectful
      parent to defeat an allegation of dependency by the mere
      passage of time.

Id.

¶17            Although the juvenile court articulated the wrong moment in
time when the dependency must be found to have existed, in its discussions
with counsel during the adjudication hearing it ultimately concluded
“[M]other is unable to provide for her children due to domestic violence.”
(Emphasis added). Viewing the evidence in the light most favorable to
upholding the court’s ruling, we conclude substantial evidence exists to
support a finding that domestic violence regularly occurred between
Mother and Father, in the presence of the Children and sometimes causing
serious physical injury to both Mother and the Children, and at the time of
the hearing, Father had been released from jail to serve a term of probation
and remained a present and viable threat to the well-being of the Children.
Substantial evidence also supports a determination that Mother failed to
even acknowledge, let alone address, these concerns through her denial of
the issue. This assessment provides an additional basis to find she is
presently unable or unwilling to parent and protect the Children. Thus, the
court’s specific findings are supported by the record and are objectively
sufficient to show DCS proved, by a preponderance of the evidence, that
the Children were dependent as to Mother on the ground of domestic
violence at the time of the adjudication hearing.




                                     8
                     SHELLA H. v. DCS, et al.
                       Opinion of the Court

                         CONCLUSION

¶18         The order of the juvenile court finding the Children
dependent as to Mother is affirmed.




                            :ama




                                   9
