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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                           TOMEKA C., Appellant,

                                        v.

        DEPARTMENT OF CHILD SAFETY, C.C., K.C., Appellees.

                             No. 1 CA-JV 16-0100
                               FILED 9-15-2016


           Appeal from the Superior Court in Maricopa County
                             No. JD19356
                 The Honorable Sally S. Duncan, Judge

                                  AFFIRMED


                                   COUNSEL

David W. Bell, Attorney at Law, Phoenix
By David W. Bell
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By JoAnn Falgout
Counsel for Appellees
                        TOMEKA C. v. DCS, C.C., K.C.
                           Decision of the Court



                        MEMORANDUM DECISION

Judge Donn Kessler delivered the decision of the Court, in which Presiding
Judge Peter B. Swann and Judge Jon W. Thompson joined.


K E S S L E R, Judge:

¶1          Tomeka C. (“Mother”) appeals the juvenile court’s ruling that
K.C. and C.C. (“the Children”) are dependent. For the following reasons,
we affirm.

               FACTUAL AND PROCEDURAL HISTORY

¶2           K.C., born 1999, and C.C., born 2000, are two of Mother’s
seven biological children. Dependency petitions have been filed for six of
the seven children, and Mother has had child protective services
involvement eight times in three states.

¶3            The Department of Child Safety (“DCS”) filed a dependency
petition in May 2015 as to K.C. and C.C.1 DCS alleged that the Children
were dependent as to Mother due to abuse and neglect, and that she was
unable or unwilling to provide proper and effective parental care and
control.2 See Arizona Revised Statutes (“A.R.S.”) § 8-201(14)(a)(i), (iii)
(2015).3 DCS alleged in the petition that Mother physically abused the
Children in May 2015. The petition also alleged that the Children reported
that Mother had said she was leaving and did not want to care for them,
and that they would “turn out just like their fathers, in prison.” Mother did
not appear at the first dependency hearing, and the juvenile court heard
evidence and found the Children dependent. The court granted Mother’s
motion to set aside the dependency finding and held a new hearing in
February 2016.



1 The petition included G.C., another child of Mother’s, but he was
dismissed from the petition after he turned eighteen in October 2015.

2 The juvenile court found that the Children were dependent as to their
fathers as well. The fathers are not parties to this appeal.

3 Amended by 2016 Ariz. Legis. Serv. ch. 300, § 8-201 (2nd Reg. Sess.) (West).



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                      TOMEKA C. v. DCS, C.C., K.C.
                         Decision of the Court

¶4            In the DCS reports to the juvenile court, which were admitted
without objection, DCS stated that K.C. had informed DCS that Mother had
been hitting C.C. in May 2015 and when he intervened, she began hitting
him with her hand and a metal stick. DCS also reported that in a team
decision meeting, Mother had walked out but told DCS that everything the
children had said was true, she had hit K.C. and that she “can’t do it
anymore.” The DCS case manager testified that since 2010 there had been
“a recurring theme of neglect and verbal abuse and physical abuse” on the
part of Mother. He also testified that K.C. had stated at the beginning of the
case, and most recently a week before the dependency hearing, that Mother
hit him and C.C.

¶5            Mother testified that in May 2015, for the second or third time,
the police brought C.C. home around 4:00 a.m., and C.C. did not have her
baby with her. Mother and C.C. searched the house to find where C.C. had
left the baby the night before. Mother conceded she was “fussing” and
“ranting and raving” at C.C. for almost half a day because she had left her
baby alone again. However, Mother denied the petition’s allegation that she
was hitting C.C., K.C. intervened, and then Mother hit K.C. with a “closed
fist and a broom stick” leaving marks. Mother testified K.C. had “pushed
past” her and so she pushed him back and that she was “yelling and fussing
at him” when he began punching holes through a wall. She testified that
she hit him on his back to make him stop, but that she did not use a closed
fist or broomstick. The police arrived and arrested K.C., but they did not
file charges against Mother. Mother testified that this was the only physical
altercation she has had with K.C., but she also testified that she has used
physical discipline with the Children in the past. Mother conceded that she
could not control the Children’s behavior.

¶6            Mother testified that she had completed four hours of an
online parenting class in January 2016, but that “it was all the same general
knowledge that [she] already [had].” She testified that she completed two
other parenting series for her previous employment, but had not taken any
other classes on her own. She testified that she had “tried everything” in
regards to disciplining and parenting the Children, including case
management, having someone move in to help her, installing home
security, enrolling the Children in church and summer programs, and
hiring a babysitter for C.C.

¶7            The juvenile court found that DCS proved the allegations in
the dependency petition by a preponderance of the evidence and found no
reason to disbelieve the physical abuse that the Children had reported. The
court found that “Mother’s testimony strained credibility completely,” that


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                      TOMEKA C. v. DCS, C.C., K.C.
                         Decision of the Court

she “minimized what the children had reported,” and that she had not told
the truth about the events in May 2015. The court specifically found that
Mother abused and, or, neglected the Children according to the allegations
in the petition.

¶8            Mother timely appealed the dependency finding. We have
jurisdiction pursuant to A.R.S. §§ 8-235(A) (2014), 12-120.21(A)(1) (2003),
and -2101(A)(1) (Supp. 2015).

                               DISCUSSION

¶9             On appeal, Mother argues that the juvenile court abused its
discretion in finding that she: (1) was unwilling or unable to exercise proper
and effective parental care and control; and (2) abused or neglected the
Children.

¶10            Before the juvenile court makes a dependency finding, DCS
must prove by a preponderance of the evidence one of the statutory
grounds for dependency. A.R.S. § 8-201(14)(a); Carolina H. v. Ariz. Dep’t of
Econ. Sec., 232 Ariz. 569, 571, ¶ 7 (App. 2013). “On review, we will accept
the juvenile court’s findings of fact unless they are clearly erroneous.”
Michael M. v. Ariz. Dep’t. of Econ. Sec., 217 Ariz. 230, 233, ¶ 10 (App. 2007).
“[T]he juvenile court [is] in the best position to weigh the evidence, judge
the credibility of the parties, observe the parties, and make appropriate
factual findings.” Pima Cty. Dependency Action No. 93511, 154 Ariz. 543, 546
(App. 1987). Thus, “this court will not reweigh the evidence but will look
only to determine if there is evidence to sustain the court’s ruling.” Mary
Lou C. v. Ariz. Dep’t. of Econ. Sec., 207 Ariz. 43, 47, ¶ 8 (App. 2004). We
construe the evidence in a light most favorable to affirming the juvenile
court’s ruling and review for abuse of discretion. Willi G. v. Ariz. Dep’t. of
Econ. Sec., 211 Ariz. 231, 234–35 ¶¶ 13, 21 (App. 2005).

I.     The juvenile court did not abuse its discretion in finding that Mother
       was unwilling or unable to provide proper and effective parental
       care and control of the Children.

¶11           Mother argues that the juvenile court abused its discretion in
its finding because she is both able and willing to exercise proper and
effective parental care and control. She specifically argues that her yelling
at the Children or past problems with their behavior does not make her
home any different than most homes with teenagers.

¶12         We disagree that the juvenile court abused its discretion. One
of the grounds for dependency is if a child is “[i]n need of proper and


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                      TOMEKA C. v. DCS, C.C., K.C.
                         Decision of the Court

effective parental care and control and . . . has no parent or guardian . . .
willing to exercise or capable of exercising such care and control.” A.R.S. §
8-201(14)(a)(i).

¶13           Mother testified that on two or three occasions police had
brought C.C. home in the middle of the night. The evidence showed that
Mother yelled at C.C. for several hours on the relevant day in May 2015,
yelled at K.C., and that there was a recurring theme of verbal abuse. Mother
conceded that she could not control the Children’s behavior. Additionally,
the evidence showed that Mother had completed only one parenting class
that was not required by DCS or her previous employment, and that she
had not pursued other classes.

¶14            Based on the above evidence, the juvenile court did not abuse
its discretion in finding the Children dependent.

II.   The juvenile court did not abuse its discretion in finding that Mother
      abused and/or neglected the Children.

¶15           Mother argues that the juvenile court abused its discretion in
finding that she had abused and/or neglected the Children because the
police did not find probable cause to charge Mother in May 2015 so the
evidence was insufficient for the court to find otherwise. Mother also argues
that she did not injure, impair, disfigure, or emotionally damage the
Children, and that there was no evidence in the record that she had
neglected them by failing to provide supervision.

¶16            One of the grounds for dependency is if a child’s “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.” A.R.S. §
8-201(14)(a)(iii). Abuse is defined as:

      the infliction or allowing of physical injury . . . or the infliction
      of or allowing another person to cause serious emotional
      damage as evidenced by severe anxiety, depression,
      withdrawal or untoward aggressive behavior and which
      emotional damage is diagnosed by a medical doctor or
      psychologist and is caused by the acts or omissions of an
      individual who has the care, custody and control of a child.

A.R.S. § 8-201(2). Neglect is defined as “[t]he inability or
unwillingness of a parent . . . of a child to provide that child with
supervision . . .     if that inability or unwillingness causes



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                      TOMEKA C. v. DCS, C.C., K.C.
                         Decision of the Court

unreasonable risk of harm to the child’s health or welfare. . .” A.R.S.
8-201(24)(a).

¶17          The juvenile court evaluated Mother’s testimony and the
testimony of the Children as provided through the case manager, and it
believed the Children. There is sufficient evidence to support the court’s
credibility determination regarding Mother, including Mother’s
contradictory statements about hitting the children, her minimization of the
events in question, her past involvement with various child protective
services agencies in other states, and the past dependency petitions filed
against her.

¶18            Having made a credibility determination that favored the
Children’s testimony, there was more than sufficient evidence to support
the court’s finding. The evidence showed that there was a recurring theme
of physical abuse, that Mother had hit K.C. and C.C. in May 2015, that she
had yelled at them for several hours that day, and that she had hit K.C. with
a metal stick. The juvenile court could have properly found that Mother’s
actions amounted to physical injury and emotional damage to the Children
for a finding of abuse.

¶19           There was also sufficient evidence that Mother neglected the
Children. The evidence showed that Mother failed to supervise C.C. on two
or three occasions resulting in her leaving her baby alone at home.

                               CONCLUSION

¶20           Having found that there was sufficient evidence to support
the juvenile court’s findings, we affirm the dependency ruling for K.C. and
C.C. as to Mother pursuant to A.R.S. § 8-201(14)(a)(i) and (iii).




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




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