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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                              PENNY R., Appellant,

                                         v.

         DEPARTMENT OF CHILD SAFETY, A.R., G.R., Appellees.

                              No. 1 CA-JV 15-0166
                               FILED 12-17-2015


            Appeal from the Superior Court in Maricopa County
                              No. JD29224
                 The Honorable Lisa Daniel Flores, Judge

       AFFIRMED IN PART; VACATED IN PART; REMANDED


                                    COUNSEL

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

Arizona Attorney General’s Office, Phoenix
By Michael F. Valenzuela
Counsel for Appellees
                          PENNY R. v. DCS, et al.
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Randall M. Howe delivered the decision of the Court, in
which Judge Jon W. Thompson and Judge Lawrence F. Winthrop joined.


H O W E, Judge:

¶1             Penny R. (“Mother”) appeals the juvenile court’s
determination that her two minor daughters, A.R. and G.R., were
dependent children. For the following reasons, we affirm the juvenile
court’s order finding A.R. dependent due to neglect because Mother failed
to provide A.R. with adequate care and supervision, but vacate the
remainder of the order and remand for further proceedings consistent with
this decision.

                 FACTS AND PROCEDURAL HISTORY

¶2            In September 2014, the Department of Child Safety
(“Department”) received three reports from A.R.’s school alleging that she
may have been neglected or physically abused. Specifically, the reports
alleged that A.R. had head lice, foul body odor, and tight clothing and that
she lacked proper feminine hygiene napkins, causing her to bleed through
her clothing. The reports also alleged that A.R., who is autistic and
nonverbal, had unexplained bruises. In response, a Department
investigator met with A.R. at her school, but because she is nonverbal A.R.
could not tell the investigator how she got the bruises. Before leaving, the
investigator confirmed that the school did not have any accident reports
involving A.R. on file.

¶3            The investigator then went to A.R.’s home where Mother,
Ruiz (“Father”), and G.R. were at the time. G.R., who had missed school
that day, told the investigator that she felt sick and that her ear hurt. G.R.
stated that she told her parents that she felt sick several days before, but
that Mother had not taken her to the doctor because she “didn’t know
where the doctor was.” The investigator noted that the home had a foul
odor and that kitten feces, old food scraps, and dirty laundry lied scattered
throughout. Mother remained in her bedroom during the investigator’s
visit and refused to come out even when the investigator asked to speak
with her.




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                          PENNY R. v. DCS, et al.
                           Decision of the Court

¶4             Three days later, on October 2, 2014, the Department took
temporary custody of A.R. and G.R. and subsequently petitioned for
dependency as to both parents. The Department contended that Mother
(1) neglected her children because she failed to provide them with the basic
necessities of life, (2) could not care for A.R. because she abused A.R. or
failed to protect her from physical abuse, and (3) neglected the children due
to her substance abuse. The Department did not take G.R. to a doctor after
removing her from the home, and G.R.’s initial intake assessment noted that
she was in good health and did not have any medical concerns.
Approximately one month after petitioning for dependency, the
Department assigned the case to a case manager. However, the case
manager did not explain which services Mother should participate in until
several weeks later. Still, the case manager did not actually refer Mother to
one of those services—parent-aide visitations—until sometime over the
next few months.

¶5            The juvenile court set a dependency hearing for March 2015,
but the court could not proceed with the hearing as to Mother because her
attorney did not appear.1 The juvenile court again set and conducted a
contested dependency hearing in May 2015 as to Mother, almost seven and
a half months after the Department petitioned for dependency. The case
manager admitted that although she had been assigned to the case six
months earlier, she had not visited the home to inspect it or see if its
condition had improved. She said that she had “no real reason” for not
doing so. The case manager also stated that she had been out of the office
for approximately three weeks in April and that the case sat idle while she
was out. She further admitted that she did not initially refer Mother to any
services or send Mother a service letter because Mother expressed
reluctance to participate, so she “just didn’t take the time to go ahead and
[refer Mother], because I wasn’t sure if she was going to engage or not.”
Regarding the parent-aide services that the case manager eventually
referred Mother to, the case manager testified that Mother had not yet
completed the six-month service because the six months had not yet passed.
Finally, when Mother’s attorney asked what safety concerns existed in
returning the children specifically to Mother, the case manager responded
“I can’t answer any.”

¶6          The investigator testified that Mother did not properly
supervise A.R. because on two occasions the school reported to the

1     At this hearing, Father waived his right to contest the allegations of
the dependency petition, and the juvenile court adjudicated the children
dependent as to him.


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                          PENNY R. v. DCS, et al.
                           Decision of the Court

Department that Mother had sent A.R. to school with soiled underwear and
without proper feminine hygiene napkins. She said that she was concerned
about these hygienic problems because A.R. is a child with special needs.
The investigator also testified that Mother failed to take G.R. to the doctor
when she had an ear infection, but admitted that G.R. was at school three
days later when the investigator removed the children. The investigator
further testified that she could not determine how A.R. received the bruises
on her face. Regarding Mother’s alleged drug abuse, the investigator
admitted that she had “no real evidence” that Mother used drugs. She also
admitted—like the case manager—that she did not return to the home after
the children’s removal to see if its condition had improved.

¶7             Mother testified that the current condition of her home was
“still kind of cramped and a little disorganized, but it’s clear.” She also
testified that since the investigator’s visit she had given away the kittens
and only kept three outdoor cats. Regarding A.R., Mother stated that she
helped A.R. maintain appropriate hygiene and that although she knew that
A.R. removed her feminine napkins at school, Mother could not control
that. But Mother testified that A.R.’s placement home had A.R. wear
diapers during her menstrual cycle, which Mother admitted was “probably
a good idea” that she had not thought about. Regarding G.R., Mother stated
that she knew where G.R.’s doctor was but did not take her because G.R.
did not have a fever or any other symptoms. Mother said she kept G.R.
home from school anyway because G.R. said she did not feel well.

¶8             During closing arguments, the Department argued for the
first time that safety concerns existed relating to Mother’s failure to protect
A.R. and G.R. from Father’s known substance abuse problem and history
of domestic violence. In response, Mother argued that she did not pose any
safety risks to the children. Mother also argued that the Department had
not met its burden of proof and that alternatives to out-of-home
dependency should have been explored, including in-home dependency
and a safety monitor.

¶9            After the hearing, the juvenile court issued an order finding
A.R. and G.R. dependent as to Mother. Specifically, the juvenile court found
that the Department had proved by a preponderance of the evidence that
Mother neglected the children by failing to provide the basic necessities of
life by maintaining a filthy and unsafe home. The court also found that
Mother neglected the children by failing to provide them with appropriate
care and supervision by not maintaining A.R.’s hygiene and not taking G.R.
to the doctor when she was ill. However, the juvenile court found that the
Department failed to sufficiently prove the remaining allegations of


                                      4
                            PENNY R. v. DCS, et al.
                             Decision of the Court

physical abuse and Mother’s substance abuse. The juvenile court refused to
address the issue of domestic violence because the Department did not
make that allegation in its petition and made no findings regarding the
safety concerns of Mother’s failure to protect A.R. and G.R. from Father’s
drug use. The court found family reunification the appropriate case plan.
Mother timely appealed.

                                 DISCUSSION

¶10           Mother argues that insufficient evidence supports the
juvenile court’s dependency finding that Mother neglected her children by
failing to provide A.R. and G.R. the basic necessities of life and adequate
care and supervision. We review a dependency adjudication for an abuse
of discretion and will only reverse the juvenile court’s ruling when no
reasonable evidence supports it. Willie G. v. Ariz. Dep’t of Econ. Sec., 211 Ariz.
231, 235 ¶ 21, 119 P.3d 1034, 1038 (App. 2005). We view the evidence in the
light most favorable to sustaining the juvenile court’s findings.
Oscar F. v. Dep’t of Child Safety, 235 Ariz. 266, 267–68 ¶ 6, 330 P.3d 1023,
1024–25 (App. 2014). Here, sufficient evidence supports the juvenile court’s
dependency order finding A.R. dependent due to neglect based on
Mother’s failure to provide her with adequate care and supervision.
However, insufficient evidence supports the finding that A.R. and G.R.
were dependent due to neglect based on Mother’s failure to provide them
with the basic necessities of life. Insufficient evidence also supports the
court’s finding that G.R. was dependent due to neglect based on Mother’s
failure to provide her with adequate care and supervision.

¶11            The Department carries the burden to prove that a child is
dependent. In re Maricopa Cty. Juv. Action No. J-75482, 111 Ariz. 588, 593,
536 P.2d 197, 202 (1975). To find “that a child is dependent,” the juvenile
court must find “by a preponderance of the evidence that the allegations
contained in the dependency petition are true” based on one of the grounds
set forth in A.R.S. § 8–201(14)(a). A.R.S. § 8–844(C)(1)(ii). Under this statute,
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 or control,” “not provided with the
necessities of life, including adequate food, clothing, shelter or medical
care,” or whose “home is unfit by reason of abuse, neglect, cruelty or
depravity of a parent, a guardian or any other person having custody or
care of that child.” A.R.S. § 8–201(14)(a)(i), (ii), (iii). “Neglect” is defined as
the “inability or unwillingness of a parent, guardian or custodian of a child
to provide that child with supervision, food, clothing, shelter or medical
care if that inability or unwillingness causes unreasonable risk of harm to


                                        5
                          PENNY R. v. DCS, et al.
                           Decision of the Court

the child’s health or welfare.” A.R.S. § 8–201(24)(a). Because the definition
of dependency is disjunctive, we will only reverse the juvenile court’s
dependency finding if none of the above elements was met. See Willie G.,
221 Ariz. at 232, 236 ¶ 2, ¶ 27, 119 P.3d at 1035, 1039 (addressing only one
element of the definition of dependency to affirm the juvenile court’s
dependency finding).

¶12            As Mother argues and the Department concedes, the
Department failed to show that Mother’s home remained unsanitary and
unsafe at the time of the dependency adjudication. Neither the investigator
nor the case manager returned to the home after removing A.R. and G.R.
and petitioning for dependency to see whether it remained unfit for them.
Additionally, the Department did not present any evidence from which the
juvenile court could infer that, despite its failure to actually return to the
home to inspect it, the home remained in the same condition that it was in
seven months prior. To the contrary, Mother testified that the home was
“still kind of cramped . . . but clear” at the time of the dependency
adjudication. Thus, the record supports only a finding that Mother failed to
provide the basic necessity of a safe home at the time of the dependency
petition seven and a half months earlier, but not at the time of the
dependency adjudication. Cf. Marina P. v. Ariz. Dep’t of Econ. Sec.,
214 Ariz. 326, 331 ¶¶ 29–30, 152 P.3d 1209, 1214 (App. 2007) (stating that
“the question is whether there were circumstances at the time of severance
that prevented Mother from parenting the children . . .” and concluding that
“missing one visit and being late for two others fourteen months prior to
the severance trial hardly qualifies as an existing circumstance at the time
of severance.”).

¶13            Likewise, the Department failed to show that Mother was
unable or unwilling to provide medical care to G.R. at the time of the
dependency adjudication. The record shows only that on one occasion,
Mother kept her daughter home from school because she said she felt ill.
The Department did not present any evidence showing that Mother’s
failure to take G.R. to the doctor caused an unreasonable risk of harm to her
health or welfare. In fact, the Department itself did not see it necessary to
take G.R. to a doctor upon her removal, and G.R.’s initial intake assessment
stated that she was in good health and did not have any medical concerns.
Thus, insufficient evidence supports the finding that A.R. and G.R. were
dependent because of Mother’s failure to provide the basic necessities of
life and the finding that G.R. was dependent because of Mother’s failure to
provide      her   with      adequate    care and      supervision     under
A.R.S. § 8–201(14)(a).



                                      6
                           PENNY R. v. DCS, et al.
                            Decision of the Court

¶14            However, sufficient evidence does support the juvenile
court’s finding that A.R. was dependent as to Mother because Mother
neglected A.R. by failing to provide her with adequate care and
supervision. The investigator testified that the Department received
multiple reports from A.R.’s school, two of which alleged that Mother sent
A.R. to school with soiled underwear and without proper feminine hygiene
napkins, causing her to bleed through her clothing. The recurrence of the
issue shows Mother’s inability or unwillingness to provide the necessary
supervision that would have prevented the second report. The investigator
also testified that she was concerned about A.R.’s hygiene issues because
she is a child with special needs. Mother testified that she was aware of
A.R.’s habit of removing her feminine napkins while at school, but stated
that she could not prevent A.R.’s actions. By contrast, A.R.’s placement
successfully addressed A.R.’s hygienic issue by placing her in diapers
during her menstrual cycle. Thus, because the record shows that Mother
failed to appropriately care and supervise A.R. after the first incident,
including exploring alternative solutions, and that the issue caused concern
regarding A.R., sufficient evidence supports the juvenile court’s finding
that A.R. was dependent due to Mother’s neglect.

¶15            Despite failing to meet its burden of proof regarding G.R. and
agreeing that “the court did not explicitly consider the state of the children
at the time of the adjudication,” the Department argues that this Court
should nonetheless affirm the juvenile court’s order because sufficient
evidence exists to support it based on Mother’s failure to protect her from
Father’s known drug use. In support of its argument, the Department
correctly observes that this Court views the evidence in the light most
favorable to sustaining the juvenile court’s order and that we will not
reverse the order unless no reasonable evidence supports it. Jordan C. v.
Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93 ¶ 18, 219 P.3d 296, 303 (App. 2009);
Arizona Dep’t of Econ. Sec. v. Matthew L., 223 Ariz. 547, 549 ¶ 7, 225 P.3d 604,
606 (App. 2010). The Department also cites authority for the proposition
that we may affirm when “any reasonable view of the facts and law might
support the judgment.” City of Phoenix v. Geyler, 144 Ariz. 323, 330 (1985).

¶16            But while the evidence presented may have supported an
adjudication of dependency based on Mother’s failure to protect G.R. from
Father’s known substance abuse, the Department failed to allege that in its
dependency petition and only brought it to the juvenile court’s attention
during its closing argument. The Department could have moved to amend
its petition before either the March 2015 or May 2015 dependency hearings
to conform to the evidence that Mother knew of Father’s substance abuse.
See Ariz. R.P. Juv. Ct. 55(D)(3). The Department also could have moved to


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                           PENNY R. v. DCS, et al.
                            Decision of the Court

amend the petition at either hearing to conform to the evidence under
Arizona Rule of Civil Procedure 15(b) to provide the juvenile court an
opportunity to determine whether relief was appropriate under that rule.
But the Department did neither, even though it questioned Mother about
her knowledge of Father’s drug abuse and knew it was going to make that
argument to the juvenile court. Accordingly, the juvenile court made no
findings on this alternative ground for dependency or of facts that would
support it as a matter of law. See Gilliland v. Rodriguez, 77 Ariz. 163, 167,
268 P.2d 334, 337 (1954) (“A court is called upon to make findings of only
ultimate facts and is not required to bolster them by subsidiary
findings . . . .”); Webber v. Grindle Audio Prods., Inc., 204 Ariz. 84, 90 ¶ 26,
60 P.3d 224, 230 (App. 2002) (“[A]n appeal is not the appropriate place to
consider issues or theories not presented below.”).

¶17              We therefore reject the Department’s argument that we may
affirm the dependency order on grounds never fairly presented to or
considered by the juvenile court. See Burns v. Davis, 196 Ariz. 155, 165 ¶ 40,
993 P.2d 1119, 1129 (App. 1999) (providing that the appellate court
addresses arguments not ruled upon by trial court “only when the record
is so fully developed that the facts and inferences are perfectly clear”);
Elliott v. Elliott, 165 Ariz. 128, 135, 796 P.2d 930, 937 (App. 1990) (providing
that where basis for ruling is unclear, “it is not enough that the appellate
court is able to derive bases on which the trial court could have permissibly
reached the decision it did from the record”) (citation omitted). Thus,
because insufficient evidence supports the juvenile court’s finding that G.R.
was dependent as to Mother, the juvenile court erred.

                               CONCLUSION

¶18          For the foregoing reasons, we affirm the juvenile court’s order
finding A.R. dependent as to Mother, but vacate the remainder of the
dependency order and remand for further proceedings consistent with this
decision.




                                   :ama



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