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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                             SHAWN I., Appellant,

                                        v.

         DEPARTMENT OF CHILD SAFETY, L.I., A.I., Appellees.

                             No. 1 CA-JV 16-0359
                               FILED 2-21-2017


           Appeal from the Superior Court in Maricopa County
                             No. JD529750
               The Honorable Janice K. Crawford, Judge

                                  AFFIRMED


                                   COUNSEL

Vierling Law Offices, Phoenix
By Thomas A. Vierling
Counsel for Appellant

Arizona Attorney General's Office, Tucson
By Cathleen E. Fuller
Counsel for Appellee DCS
                         SHAWN I. v. DCS, et al.
                          Decision of the Court


                      MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Margaret H. Downie and Judge James P. Beene joined.


J O H N S E N, Judge:

¶1            Shawn I. ("Father") appeals the superior court's order finding
his two children dependent. For the following reasons, we affirm.

                FACTS AND PROCEDURAL HISTORY

¶2            The children, born June 2014 and August 2015, respectively,
are Indian children. Janine I. ("Mother") and Father are separated, but share
joint custody. Per a visitation schedule set forth by the superior court, the
children were brought to Father's home on February 8, 2016 and remained
under his care until February 12, 2016. When Father attempted to return
the children to Mother at her residence on February 12, Mother was not
there; the only person present was Mother's significant other, Cory M.
Although Father had alleged that Cory M. threatened to hurt one of the
children on one occasion and pressed a spark plug to the other's "private
area" on another, he left the children in Cory M.'s care.

¶3            Later that night, Cory M. and the children picked up Mother
from work. Mother saw several purple bruises on the left side of one child's
face and "scars/marks" on the other's legs. Alarmed, Mother immediately
took the children to the hospital.

¶4             At the hospital, one child was diagnosed with severe diaper
rash stretching from his pubic area to his inner thighs. The rash had
scabbed over in numerous places and become "extremely infected." The
child also suffered from dehydration and an ear infection.

¶5            The other child, not quite six months old at the time, suffered
from dehydration and severe diaper rash. The infant's diaper rash hadn't
yet scabbed over, but it had caused a urinary tract infection. In addition,
she suffered from bronchiolitis, chest congestion, trouble breathing and a
"very high temperature." Lastly, doctors concluded that the bruising on the




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                           SHAWN I. v. DCS, et al.
                            Decision of the Court

infant's face was consistent with what one might observe after a face is
grabbed by a hand.1 Her condition required four days' hospitalization.

¶6           The Department of Child Safety ("DCS") removed the
children directly from the hospital and asked the court to find them
dependent as to Mother and Father.2

¶7           The dependency adjudication hearing began in August 2016.
After hearing the evidence, the superior court found the children
dependent as to Father. Father timely appealed. We have jurisdiction
pursuant to Article 6, Section 9, of the Arizona Constitution, Arizona
Revised Statutes ("A.R.S.") sections 8-235(A) (2017), 12-2101 (2017) and
Arizona Rule of Procedure for the Juvenile Court 103(A).3

                               DISCUSSION

¶8             We review a superior court's order from a contested
dependency hearing for an abuse of discretion and will affirm unless no
reasonable evidence supports the court's findings. See Willie G. v. Ariz.
Dep't of Econ. Sec., 211 Ariz. 231, 234, 235, ¶¶ 13, 21 (App. 2005). "On review
of an adjudication of dependency, we view the evidence in the light most
favorable to sustaining the [superior] court's findings." Id. at 235, ¶ 21.

¶9            Under Arizona law, a dependent child is one "[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,"
or "[a] child whose home is unfit by reason of abuse, neglect, cruelty or
depravity by a parent." A.R.S. § 8-201(15)(a)(i), (iii) (2017). The petitioner
has the burden of proving the child is dependent by a preponderance of the
evidence. A.R.S. § 8-844(C)(1) (2017); Ariz. R.P. Juv. Ct. 55(C). If, as in this
case, the child is an Indian child, the petitioner also must prove, "by clear
and convincing evidence, including testimony of qualified expert


1      Cory M. later admitted to police that he grabbed the infant by her
face and lifted her up in order to remove her from her car seat just prior to
retrieving Mother from work on the night of February 12, 2016.

2      The children were found dependent as to Mother after she waived
her right to contest the dependency petition. She is not a party to this
appeal.

3     Absent material revision after the relevant date, we cite a statute's
current version.


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                          SHAWN I. v. DCS, et al.
                           Decision of the Court

witnesses, that the continued custody of the child by the parent or Indian
custodian is likely to result in serious emotional or physical damage to the
child." Indian Child Welfare Act ("ICWA") of 1978, 25 U.S.C. § 1912(e)
(2012); accord Ariz. R.P. Juv. Ct. 55(C).

¶10           Father argues insufficient evidence supports a finding that the
children would be exposed to a risk of abuse or neglect if they were
returned to him. He contends he has participated in a drug-abuse program,
has successfully participated in services, has clean and safe housing and has
attended some of the children's medical appointments.

¶11           Contrary to Father's arguments, reasonable evidence
supports the superior court's finding that the children would be at risk of
medical neglect in Father's care. Father has a history of neglecting the
medical needs of children under his care. In an April 2013 case that the
superior court characterized as strikingly similar to this one, Father's
parental rights were terminated as a result of medical neglect. In granting
the dependency in this case, the court noted that, although the children
were under his care at all times during the four days immediately before
their hospitalization, Father refused to accept any responsibility for their
condition at the time of their arrival to the hospital. As for his contention
that he has engaged in the required services, the court was skeptical, stating
that Father "will say whatever he thinks will further his own agenda,
regardless of the absolute accuracy of his testimony." The court ruled that
under the circumstances, Father needed to engage in additional services
and demonstrate that he could maintain an appropriate home for the
children.

¶12           Similarly, reasonable evidence supports the superior court's
finding that continued custody of the children by Father would likely result
in serious emotional or physical damage to them. In addition to the
evidence recounted above, an ICWA expert testified that continued custody
of the children by Father would likely result in serious emotional or
physical harm to the children. Based on this record, sufficient evidence
supported the superior court's finding that the children would be at risk of
medical neglect in Father's care and would likely suffer serious emotional
or physical damage if returned to him.




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                          SHAWN I. v. DCS, et al.
                           Decision of the Court

                               CONCLUSION

¶13           For the foregoing reasons, we affirm the superior court's order
finding the children dependent as to Father.




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




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