Matthew W. v. Dcs, N.W.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MATTHEW W., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, N.W., Appellees.

No. 1 CA-JV 17-0458
FILED 4-26-2018

Appeal from the Superior Court in Maricopa County
No. JD510623
The Honorable Karen L. O’Connor, Judge

AFFIRMED

COUNSEL

Denise Lynn Carroll Esq., Scottsdale
By Denise L. Carroll
Counsel for Appellant

Arizona Attorney General’s Office, Mesa
By Ashlee N. Hoffmann
Counsel for Appellee Department of Child Safety
 MATTHEW W. v. DCS, N.W.
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Randall M. Howe delivered the decision of the Court, in
which Judge Kenton D. Jones and Judge James B. Morse Jr. joined.

H O W E, Judge:

¶1 Matthew W. (“Father”) appeals the juvenile court’s order
finding that his child, N.W., was dependent based on the mental-health
ground. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 While in the Navy in March 2014, Father was admitted to a
medical facility. He reported symptoms of paranoia, such as feeling
“electricity” running through his body, believing that people were
attempting to control his thoughts, thinking that his fiancé was trying to
poison him, and experiencing auditory hallucinations. Father’s symptoms
subsided, however, and he returned to service in May, but was readmitted
to the medical facility in July for paranoia, irrational behavior, and “post
trauma reaction.” He received antipsychotic medication, but discontinued
taking it once he left the hospital. Father’s mental health continued to
deteriorate; he exhibited worsening paranoia, delusions of persecution,
threats toward others, and demanded that people call him “the King.” He
also sent texts that were difficult to comprehend, such as “I am a king, if
you follow me you will be free. Do not be afraid. Pass the word.” The Navy
later discharged Father due to medical and psychological reasons.

¶3 In July 2016, Father pointed a gun at his brother during an
argument over a cellphone and charged at police officers with an unloaded
gun. Furthermore, Father reportedly laughed and talked to himself and
yelled at unseen others. Because of these actions, a physician experienced
in psychiatric matters petitioned for court-ordered treatment. The superior
court determined that Father suffered from a mental disorder, was
persistently or acutely disabled, was in need of treatment, and was either
unwilling or unable to undergo voluntary treatment. Thereafter, the
superior court ordered him to undergo mental-health treatment for one
year.

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¶4 In December 2016, Brittany W. (“Mother”)1 gave birth to
N.W., but Father was not aware of Mother’s pregnancy or N.W.’s birth.
Because Mother admitted that she used methamphetamine during her
pregnancy, the Department of Child Safety removed N.W. from Mother’s
care. Mother informed the Department that Father was potentially N.W.’s
father and that he was hospitalized in a Veterans Administration hospital
for his post-traumatic stress disorder (“PTSD”). Consequently, the
Department alleged that Father was unable to parent N.W. due to neglect
and his hospitalization for PTSD. After Father was located in January 2017,
he denied the allegations in the petition.

¶5 The Department referred Father for various reunification
services, including paternity testing, a psychological evaluation, parent-
aide services, and a urinalysis test to rule out substance abuse. The
Department determined that Father was N.W.’s biological father and then
placed N.W. with Father’s sister. Father began parent-aide services in
March, and he had generally good participation in visitation with N.W. and
parent-aide services, but during visits he sometimes paced back and forth
for a period of anywhere from 20 to 60 minutes.

¶6 Father received a psychological evaluation in April. The
psychologist found that Father had inconsistent goals. The psychologist
noted that Father was hypoactive and had tremors, yet wanted a more
exciting career, such as being a member of a SWAT team or a sniper in the
military. Father also hoped to reenter the Navy or become a contract
security officer doing tours overseas, but maintained that he wanted to
parent N.W. Ultimately, the psychologist questioned the compatibility of
Father’s preferred career with parenting a vulnerable infant. The
psychologist diagnosed Father with PTSD and unspecified bipolar disorder
by history, but was unsure if Father had mood and thought disorder based
upon the available information. He recommended that Father participate in
visitation, parent-aide services, and therapy for his anxiety. The
psychologist opined that he could not determine at that point whether
Father would be able to demonstrate minimally adequate parenting skills
in the foreseeable future and noted that he needed Father’s medical records.
The psychologist asked Father about a release of information to obtain
Father’s medical records, and Father falsely replied that he had already
signed one. The psychologist also noted that at the time of the evaluation,
Father was not a viable parenting candidate, especially considering his

1 The juvenile court adjudicated N.W. dependent with respect to
Mother in December 2016. She is not a party in this appeal.

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Decision of the Court

medical disability, antipsychotic treatment, and his presentation and
acknowledgment of anxiety.

¶7 The Department requested Father’s medical records, but he
repeatedly refused to sign a release of information. In June, the court
ordered Father to provide the medical records. Over 400 pages of medical
records arrived one week before the August dependency hearing. The
records detailed Father’s mental-health issues, including his court-ordered
treatment, erratic behavior and symptoms of mental illnesses, and his
resistance to mental-health treatment. They showed that since 2014, Father
has been diagnosed with various mental illnesses, such as bipolar disorder,
paranoid schizophrenia, schizoaffective disorder, adjustment disorder with
anxiety, and PTSD.

¶8 During the dependency hearing, Father’s psychologist
testified about Father’s mental-health issues, diagnoses, resistance to
treatment, and ability to parent. The psychologist testified that he reviewed
the recently received medical records and stated that they provided “very
strong detailed evidence by multiple evaluators that [Father] had very
serious treatment needs and . . . clear documentation of a mental illness.”
The psychologist also highlighted that Father “showed virtually no insight
or virtually no willingness to express much of anything” about his past
issues despite his court-ordered treatment having ended recently. He
elaborated that individuals with serious mental-health issues, such as
Father’s, often initially deny their symptoms but their denial lessens after
treatment. Because Father continued to refuse to acknowledge his mental-
health issues, the psychologist stated that Father had a greater likelihood of
regressing. The psychologist ultimately opined that as of the dependency
hearing, a child in Father’s care would be at high risk. Father objected to the
psychologist’s testimony, claiming that his testimony had nothing to do
with the allegations in the petition; the court overruled the objections.
During Father’s testimony, he denied suffering from any mental-health
issues and minimized the July 2016 altercation with his brother by calling it
a “fistfight.” He testified that he did not need any mental-health treatment
and was adamant that he would not take any antipsychotic medication after
his court-ordered treatment had ended.

¶9 The Department moved to amend the petition to conform to
the evidence—that Father was unable to parent due to his mental-health
issues. The court found that Father had knowledge of the language in the
petition, knowledge of his own mental-health treatment and records, and
knowledge that the Department needed and requested his medical records
to assess Father for reunification services. The court also found that Father

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 MATTHEW W. v. DCS, N.W.
Decision of the Court

had not demonstrated that he would be unfairly prejudiced by allowing the
petition to be amended. The court subsequently granted the Department’s
motion under Arizona Rules of Procedure for the Juvenile Court (“ARPJC”)
55(D)(3) and Arizona Rules of Civil Procedure (“ARCP”) 15(b)(1).

¶10 After the hearing, the court found that N.W. was dependent
as to Father under the mental-illness ground but not the neglect ground. As
support for its finding, the court highlighted Father’s significant mental-
health history, his denial of mental-health issues, and the psychologist’s
testimony, opinions, and recommendations. Father timely appealed.

DISCUSSION

1. Department’s Request to Amend Petition

¶11 Father contends that he was denied the right to a fair trial
when the court allowed the Department to amend its petition to include a
mental-health allegation. We review a court’s grant or denial of a motion to
amend a pleading for an abuse of discretion. Tumacacori Mission Land Dev.,
Ltd. v. Union Pac. R.R. Co., 231 Ariz. 517, 519 ¶ 4 (App. 2013). Because the
amended petition did not prejudice Father, no abuse of discretion occurred.

¶12 ARPJC 55(D)(3) states that an amendment to conform to the
evidence shall be made pursuant to ARCP 15(b). ARCP 15(b)(1) provides
that if a party objects that the evidence presented at trial was not within the
issues raised in the pleadings, the court may permit the opposing party to
amend the pleadings. “The court should freely permit an amendment when
doing so will aid in presenting the merits and the objecting party fails to
satisfy the court that the evidence would unfairly prejudice that party’s
claim or defense on the merits.” Ariz. R. Civ. P. 15(b)(1); Parker v. City of
Tucson, 233 Ariz. 422, 439 ¶ 51 (App. 2013). The rule’s purpose is to allow
the parties to receive all relief to which they are entitled in one trial and to
prevent a multiplicity of suits. Cont’l Nat’l Bank v. Evans, 107 Ariz. 378, 381
(1971).

¶13 Here, the court specifically found that Father had knowledge
of (1) the language in the petition, (2) his own mental-health treatment and
records, and (3) the Department’s multiple requests for those records. Thus,
the court found that Father had not demonstrated that he would be unfairly
prejudiced by allowing the petition to be amended.

¶14 Father counters that the amendment was untimely and that
he was unfairly surprised or prejudiced by the amendment. He also claims
that the amendment put him at a serious disadvantage because he was

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Decision of the Court

prepared to defend only the neglect allegation. Although the original
petition did not specifically allege that Father was unable to parent due to
mental illness, the petition did state that Father was unable to parent due
to his hospitalization for PTSD, which was the only information available
to the Department when it filed the petition. This allegation provided notice
to Father that the Department had concerns about Father’s mental health
and wanted to receive more information. Since that time, the Department
had repeatedly sought Father’s records, which he refused to release until
the court ordered him to do so. Based upon the language in the petition, the
psychological evaluation, and the Department’s repeated requests for
Father’s medical records, the court did not abuse its discretion by finding
that Father did not show that the amendment would unfairly prejudice
him. Thus, the court did not abuse its discretion by granting the
Department’s motion to amend the petition.

2. Sufficiency of the Evidence

¶15 Father contends that the Department did not provide
sufficient evidence to support the court’s finding that N.W. was dependent.
“The petitioner’s burden of proof in a dependency proceeding is a
preponderance of the evidence.” Willie G. v. Ariz. Dep’t of Econ. Sec., 211
Ariz. 231, 232 ¶ 2 (App. 2005). Because the juvenile court is in the best
position to observe the parties, judge the credibility of witnesses, and
resolve disputed facts, this Court will not reweigh the evidence. Jordan C. v.
Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93 ¶ 18 (App. 2009). We will not disturb
a dependency adjudication unless no reasonable evidence supports it, and
we view the evidence in the light most favorable to sustaining the juvenile
court’s decision. Id. Because sufficient evidence supports the court’s
dependency finding, it did not err by finding N.W. dependent.

¶16 Here, the record shows that Father suffered from various
mental illnesses that required hospitalizations and court-ordered
treatment. Because of those illnesses, he has also been dangerous to those
around him, as the incidents with his brother and police officers involving
guns illustrated. Father’s lack of insight about his mental health was also
apparent from his having been hospitalized and placed under court-
ordered treatment, yet continuing to deny suffering from any mental-health
issues and minimizing the altercation with his brother. Furthermore,
Father’s psychologist opined that, at the time of the dependency hearing, a
high risk existed for a child’s wellbeing if placed in Father’s care. As such,
sufficient evidence supports the court’s finding that N.W. was dependent
due to Father’s mental health.

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 MATTHEW W. v. DCS, N.W.
Decision of the Court

¶17 Father counters by highlighting that he had participated in
visitation and parent-aide services, had a good relationship with N.W., had
stable housing and income, and the case manager and parent-aide services
had not observed instances where Father was a danger to N.W. While this
evidence supported Father’s contention of being a fit parent, the
Department also presented evidence casting doubt on his ability to parent.
Therefore, Father is arguing that these positive factors outweighed the
negative factors. This argument fails because this Court does not reweigh
the evidence. See Jordan C., 223 Ariz. at 93 ¶ 18.

¶18 Father also relies on Alma S. v. Dep’t of Child Safety, 1 CA-JV
16-0497, 2017 WL 5413119 (Ariz. App. Nov. 14, 2017) to support his
contention that remaining in his care was in N.W.’s best interests. Alma S.
was a case based upon a severance action and the requirement that a
juvenile court must find that terminating a parent’s rights is in the child’s
best interest before making a severance determination. Id. at *3 ¶ 12. Here,
the court held only a dependency proceeding rather than a severance
proceeding or a best-interest finding. As such, Alma S. is inapplicable.

CONCLUSION

¶19 For the foregoing reasons, we affirm.

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

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