Francine C. v. Dcs

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

FRANCINE C., Appellant,

v.

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

No. 1 CA-JV 19-0366
FILED 6-23-2020

Appeal from the Superior Court in Maricopa County
No. JD531916
The Honorable Kristin Culbertson, Judge

VACATED AND REMANDED WITH INSTRUCTIONS

COUNSEL

Maricopa County Legal Defender, Phoenix
By Jamie R. Heller
Counsel for Appellant

Arizona Attorney General’s Office, Mesa
By Tom Jose
Counsel for Appellee
 FRANCINE C. v. DCS
Opinion of the Court

OPINION

Presiding Judge Paul J. McMurdie delivered the opinion of the Court, in
which Judge Jennifer B. Campbell and Vice Chief Judge Kent E. Cattani
joined.

M c M U R D I E, Judge:

¶1 Francine C. (“Mother”) appeals the juvenile court’s order
adjudicating her daughter, Kourtney, dependent based on Mother’s alleged
failure to protect Kourtney from exposure to substance abuse and domestic
violence while the child was in her father’s care. Because the juvenile court
erred by failing to state the basis for the dependency as required by Arizona
Revised Statutes (“A.R.S.”) section 8-844(C)(1)(a)(ii) and Arizona Rule of
Procedure for the Juvenile Court (“Juvenile Rule”) 55(E)(3), we vacate and
remand the dependency order. In so doing, we hold: (1) a parent does not
waive the requirement of specific findings by not raising the issue before
the juvenile court; (2) a dependency order and the surrounding
circumstances must be sufficiently specific to allow for effective appellate
review; and (3) in this case, absent specific findings by the juvenile court,
we are unable to determine if the dependency order is supported by
reasonable evidence.

FACTS AND PROCEDURAL BACKGROUND

¶2 Mother and Walter C. (“Father”) divorced after Mother
moved with Kourtney from Arizona to Arkansas in 2011 when the child
was one year old. An Arkansas court awarded Mother and Father joint
custody, with Father having reasonable and seasonal parenting time. By
2018, Kourtney and Father had communicated only by phone and had not
seen each other since Mother took Kourtney to Arkansas. Kourtney wanted
to develop a relationship with her father, so in June 2018, Mother agreed to
send her to Arizona to stay with Father for the summer. By the end of the
summer, Mother and Father decided that Kourtney could remain with
Father for the following school year.

¶3 Shortly before Kourtney arrived in Arizona, Father’s
girlfriend gave birth to their son, who was born substance-exposed. The
Department of Child Safety (“DCS”) took custody of the newborn in May
2018. In connection with that investigation, Father tested positive for

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methamphetamine, cocaine, benzoylecgonine, and norcocaine on May 30,
2018. After receiving a report a few weeks later that Father had brought
Kourtney to a hearing in the dependency matter for his son, a DCS
investigator called Mother on August 7, 2018, and advised her of Father’s
substance use. Mother said she knew Father had a history of substance
abuse but explained that she believed Father was sober because she
assumed he was being tested for drugs since he was on parole and
employed. Mother told the investigator that Father had recently discussed
the DCS case about his son with her, but she understood that it was Father’s
girlfriend who was using drugs, not Father. Mother stated that she had
conditioned Kourtney’s stay in Arizona on Father being drug-free. She told
the investigator she would “start making arrangements for an immediate
flight back to Arkansas for Kourtney.” DCS did not take further action, and
Kourtney remained with Father.

¶4 Two weeks later, the police notified DCS that they had
arrested Father because he and his girlfriend were involved in a
domestic-violence altercation that Kourtney had witnessed. Because there
was no caregiver available, DCS took Kourtney into custody and placed her
with Father’s sister (“Aunt”). The investigator again spoke with Mother,
who asserted she had been waiting on a tax-refund check to buy a plane
ticket for her daughter, but that the check had just arrived. Mother later
notified DCS that she and Aunt had agreed it would be better for Kourtney
to remain with Aunt for the remainder of the school year before returning
to Arkansas.

¶5 In August 2018, DCS petitioned the juvenile court to find
Kourtney dependent, alleging:

Mother is unable to parent due to neglect and a failure to
protect. Mother failed to take appropriate action to protect the
child from the domestic violence and substance abuse that
occurred in Father’s home. In June 2018, Mother sent the child
to Arizona to live with Father for about a year. Mother has a
history of failing to protect her children. Mother left her
children in the care of a registered sex offender.

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The court held a joint-dependency adjudication for Mother and Father in
October 2019.1 Before the start of the trial, DCS withdrew several allegations
related to Father, including “Father has a history of domestic violence” and
“Father does not have a medical marijuana card.” After removing these
allegations, Father agreed not to contest the claims remaining in the
petition. The court adjudicated Kourtney dependent regarding Father and
then proceeded to Mother’s case.

¶6 Mother informed the court that she and DCS had reached an
agreement for a pre-adjudication guardianship with Aunt. Father had been
the holdout to the agreement, but now that Kourtney had been adjudicated
dependent regarding Father, Mother requested to proceed with that
arrangement. But DCS stated it was concerned that Aunt “doesn’t fully
understand what . . . guardianship means,” and “without having the time
to do a—a permanency [meeting] and really sit down with [Aunt], . . . we’re
just not comfortable agreeing to that, and we—we do have everybody
here.”

¶7 The court noted that it had been over a year since Kourtney
had been removed from Father’s home and proceeded with the hearing.
The only evidence presented was a court report dated August 28, 2018,
testimony from the case manager who took over the case in March 2019,
and a DCS investigator.

¶8 The investigator testified that DCS had “concerns for
[Mother’s] judgment” because she had sent Kourtney to Arizona to stay
with her Father “knowing his history of substance abuse and his criminal
history.” Based on the investigator’s limited investigation into Mother’s
background, however, she was unable to say whether Mother was
minimally adequate to parent.

¶9 The case manager testified that DCS had safety concerns
regarding Mother’s home and could not return Kourtney to Mother until it
satisfied its “statutory obligation to assess” the home. The case manager
explained that when DCS has a concern about a parent’s home in another
state, it usually initiates the Interstate Compact for the Placement of
Children (“ICPC”) process, which here would mean “running background
checks on the individual[s] that [Mother] identif[ies].” The case manager

1 The Arkansas court consented to Arizona’s jurisdiction to hear the
dependency action under the Uniform Child Custody Jurisdiction and
Enforcement Act. See A.R.S. §§ 25-1037, -1038.

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testified, however, that, although it would be Arkansas that assessed
Mother’s home, she had not contacted Arkansas’s Division of Child and
Family Services to do so even though she knew Arkansas would not
commence an investigation until Arizona initiated an ICPC.2

¶10 After the close of evidence, the court stated: “Based on the
evidence that was presented, the Department met their legal standard for a
dependency finding against Mother.” The corresponding minute entry
read:

THE COURT FINDS, pursuant to the Rules of Procedure for
the Juvenile Court, that the allegations of the petition are true
by a preponderance of the evidence and the child is
dependent as to [Mother] as defined by the Arizona Revised
Statutes.

Mother appealed, and we have jurisdiction under A.R.S. § 8-235(A) and
Juvenile Rule 103(A).

2 The ICPC facilitates cooperation between states in the placement and
monitoring of dependent children. See A.R.S. § 8-548. In Donald W. v. DCS,
we held that an “ICPC is not required when evidence does not support a
dependency as to the out-of-state parent.” 247 Ariz. 9, 20, ¶ 38 (App. 2019)
(emphasis added). Put differently, without reasonable evidence of facts
warranting a dependency, DCS may not wait for an ICPC investigation to
conclude before it returns a child to the parent. Id. at 21, ¶ 41. Consistent
with this holding, other states have concluded more broadly that the ICPC
does not apply to placement with a parent, holding that the ICPC
regulations for placing a child with a parent “are invalid because they
impermissibly expand the scope of [the ICPC]” beyond the scope given by
the legislature. In re Emoni W., 48 A.3d 1, 10 (Conn. 2012); In re R.S., 215 A.3d
392, 400, n.15 (Md. Ct. Spec. App.) (“Lest there be any confusion, our
reading of the plain language of the ICPC, [‘placement in foster care or as
preliminary to a possible adoption,’] shows that it does not apply to
parental placements regardless of whether allegations of abuse or neglect
have been sustained as to the out-of-state parent . . . .”), cert. granted, 221
A.3d 988 (Md. 2019); see also ICPC Regulations, American Public Human
Services Association,
https://aphsa.org/OE/AAICPC/ICPC_Regulations.aspx (last visited
June 18, 2020).

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DISCUSSION

¶11 On appeal, Mother argues the juvenile court erred by failing
to make sufficiently specific findings as required by A.R.S.
§ 8-844(C)(1)(a)(ii) and Juvenile Rule 55(E)(3) and by adjudicating Kourtney
dependent without reasonable evidence to support a dependency. DCS
responds: (1) Mother waived the opportunity for more specific findings by
failing to raise the issue in the juvenile court; (2) the order is sufficiently
specific to allow for effective appellate review; and (3) reasonable evidence
allows this court to infer findings to support the order.

A. An Appellate Court Cannot Affirm a Dependency Order that
Lacks Findings that Are Sufficiently Specific to Permit Effective
Appellate Review.

¶12 Before the State may interfere with a parent’s right to parent
his or her child, it must prove the child is dependent under A.R.S.
§ 8-201(15)(a). Our legislature and supreme court have established
significant procedural safeguards to protect the fundamental right at stake
in juvenile proceedings. See A.R.S. § 8-844(C)(1)(a)(ii); Juvenile Rule
55(E)(3); Crosby-Garbotz v. Fell, 246 Ariz. 54, 58, ¶ 17 (2019) (“[D]ependency
proceedings affect liberty interests as well—the fundamental right of
parents regarding their children’s upbringing . . . .”); Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 24 (2005) (citing Santosky v. Kramer, 455 U.S. 745, 753
(1982)). As relevant here, when the juvenile court finds that a petitioner has
proven the allegations in a dependency petition by a preponderance of the
evidence, it must “[s]et forth specific findings of fact in support of a finding
of dependency,” which “shall be in the form of a signed order or contained
in a minute entry.” Juvenile Rule 55(E)(3); A.R.S. § 8-844(C)(1)(a)(ii)
(juvenile court must provide “[t]he factual basis for the dependency”); cf.
Ruben M. v. ADES, 230 Ariz. 236, 240, ¶ 22 (App. 2012) (in termination
proceedings governed by Juvenile Rule 66, “the court must specify at least
one factual finding sufficient to support each of th[e] conclusions of law”).
These requirements are not discretionary; they are mandatory in every
dependency proceeding.

¶13 As noted in the context of termination proceedings, “[t]he
primary purpose for requiring a court to make express findings of fact and
conclusions of law is to allow the appellate court to determine exactly which
issues were decided and whether the lower court correctly applied the
law.” Ruben M., 230 Ariz. at 240, ¶ 24. And, again in the termination context,
“findings also serve other important purposes, including prompt[ing]
judges to consider issues more carefully because they are required to state

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not only the end result of their inquiry, but the process by which they
reached it.” Logan B. v. DCS, 244 Ariz. 532, 538, ¶ 18 (App. 2018) (alteration
in original) (quotation marks omitted) (quoting Miller v. Bd. of Supervisors,
175 Ariz. 296, 299 (1993)). “It must be clear [from the findings] how the court
actually did arrive at its conclusions.” Kelsey v. Kelsey, 186 Ariz. 49, 51 (App.
1996) (alteration in original) (quoting Elliott v. Elliott, 165 Ariz. 128, 135
(App. 1990)).

¶14 Although the juvenile court does not have to detail each fact
that supports its ruling, Christy C. v. ADES, 214 Ariz. 445, 451-52, ¶ 19 (App.
2007), its findings must include all of the “ultimate facts,” Ruben M., 230
Ariz. at 241, ¶ 25. “[U]ltimate facts are at least the essential and
determinative facts on which the conclusion was reached. They are the
controlling facts, without which the court cannot correctly apply the law in
resolving the disputed issues in the case.” Logan B., 244 Ariz. at 537, ¶ 15
(alteration in original) (quotation marks omitted) (quoting Miller, 175 Ariz.
at 300); Ruben M., 230 Ariz. at 241, ¶ 25 (“Findings must include ‘all of the
“ultimate” facts—that is, those necessary to resolve the disputed issues.’”
(quoting Elliott, 165 Ariz. at 132)). We review the sufficiency of findings of
fact de novo as a mixed question of fact and law. Murphy Farrell Dev., LLLP
v. Sourant, 229 Ariz. 124, 128, ¶ 13 (App. 2012).

1. A Party Cannot Waive the Juvenile Court’s Failure to Include
Findings of Fact in a Dependency Order.

¶15 There are several ways a court might be obligated to make
specific findings of fact and conclusions of law. First, a rule or statute may
allow a party to request that the court do so. See, e.g., Ariz. R. Civ. P. 52(a)(1)
(“[I]f requested before trial, the court must find the facts specially and state
its conclusions of law separately.”). And it has long been the rule that if a
party fails to make such a request, then the court is not obligated to make
findings, and the appellate courts deem the failure to ask for them as a
waiver of the right to have the findings made. Lenslite Co. v. Zocher, 95 Ariz.
208, 216 (1964); Elliott, 165 Ariz. at 134; Myers-Leiber Sign Co. v. Weirich, 2
Ariz. App. 534, 537 (1966). Also, courts have consistently held that when a
party has invoked a permissive rule, and the court fails to make the
requisite findings, the court’s failure to make the findings is nonetheless
waived if the court’s error is not brought to its attention in a post-judgment
motion. Trantor v. Fredrikson, 179 Ariz. 299, 301 (1994); Elliott, 165 Ariz. at
134.

¶16 By contrast, in other situations, a statute or a rule may require
a court to make findings even absent the request of a party. See, e.g., A.R.S.

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§ 8-844(C)(1)(a)(ii); Juvenile Rule 55(E)(3); Ariz. R. Civ. P. 52(a)(2)
(injunction proceedings). A party litigating a matter involving mandatory
findings does not have to ask before the judgment to require that the court
make findings. See Trantor, 179 Ariz. at 301.

¶17 When a court fails to comply with a rule that mandates
findings, a party who does not raise the issue in an authorized
post-judgment motion may waive it on appeal. Bayless Inv. & Trading Co. v.
Bekins Moving & Storage Co., 26 Ariz. App. 265, 271 (1976) (when a litigant
fails to file an authorized post-judgment motion bringing “the trial court’s
attention to the claimed lack of [a specific] finding[]” under Arizona Rule
of Civil Procedure (“Civil Rule”) 52(a)(2), the issue is waived on appeal); see
also Trantor, 179 Ariz. at 301 (“Although this issue is not before us, and
therefore we do not decide it, we think that if findings are waivable even
where Rule 52(a)[(2)] specifically requires them, they are waivable where
awards are made under statutes that do not specifically require them.”).

¶18 Our supreme court has taken a different view, however,
regarding waiver when mandatory findings are imposed by statute. In
Aguirre v. Industrial Commission, the court noted that under A.R.S. § 41-1063,
the judicial officer was required to make findings of fact and conclusions of
law and that each finding must contain facts supporting the findings. 247
Ariz. 75, 77, ¶ 12 (2019); see also Post v. Indus. Comm’n, 160 Ariz. 4, 7 (1989).
The court explicitly rejected the argument that the appellant had waived
the issue by not raising it in a post-ruling motion. Aguirre, 247 Ariz. at 77–
78, ¶¶ 14–15.

Thus, because [the judicial officer] failed to fulfill his statutory
duty, we cannot, as a practical matter, review his decision on
appeal. As a result, the award is legally deficient and must be
set aside regardless of whether the claimant has raised the
issue.

Id. at 78, ¶ 15 (citation omitted); Post, 160 Ariz. at 8 (“If we were to approve
the award here, however, with no stated resolution of conflicting testimony,
no findings of ultimate fact, and no conclusions on the legal issues, there
would be no purpose in requiring judges to make findings.”). The same
principle applies to parenting-time and decision-making orders under
A.R.S. § 25-403, which mandates specific findings on the record about all
relevant factors and the reasons for which the decision is in the best interests
of the child. A.R.S. § 25-403(B); Reid v. Reid, 222 Ariz. 204, 210, ¶ 20 (App.
2009) (“The lack of findings in this case was error as a matter of law, which
deprived this court of a meaningful opportunity to assess the family court’s

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best interests finding, and Father did not waive this issue in this limited
circumstance by failing to raise it below.” (citation omitted)).

¶19 Whether a party has waived the right to findings is not a
matter of semantics, but substantively affects how an appellate court
reviews a case. Generally, an appellate court may infer that the superior
court has made whatever additional findings are necessary to sustain its
judgment. Elliott, 165 Ariz. at 135; Thomas v. Thomas, 142 Ariz. 386, 390 (App.
1984). This principle applies if the additional findings are reasonably
supported by the evidence and do not conflict with any of the court’s
express findings. Thomas, 142 Ariz. at 390. However, the general principle
does not apply if the court failed in its obligation to make findings of fact,
and the issue is preserved for appeal. See Silva v. DeMund, 81 Ariz. 47, 50
(1956). We have explained the difference in how we review cases when the
general rule does not apply.

Where the basis on which the court reached a certain
conclusion is not clear, 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. It
must be clear how the court actually did arrive at its
conclusions. Otherwise, there is no assurance that the court
itself thought out each issue, and an appellate court cannot
effectively review the decision-making process of the trial
court.

Elliott, 165 Ariz. at 135 (quoting Urban Dev. Co. v. Dekreon, 526 P.2d 325, 328
(Alaska 1974)); accord Aguirre, 247 Ariz. at 78, ¶ 15; Post, 160 Ariz. at 8.

¶20 As noted above, the juvenile court’s minute entry said
nothing more than that the allegations in the dependency petition were
“true by a preponderance of the evidence.” Mother argues the juvenile
court committed reversible error by failing to make any specific findings of
fact in support of its order. DCS responds that the order contains sufficient
findings and that Mother waived her right to more specific findings because
she “could have raised this issue in a motion to clarify, reconsider, or set
aside after the juvenile court entered the minute entry adjudicating
Kourtney dependent.” We disagree with DCS.

¶21 The general waiver rule DCS asserts does not apply in a
dependency action. The right to specific findings and conclusions is a
statutory right under A.R.S. § 8-844(C)(1)(a)(ii) that is not waived by failing
to assert it in a post-proceeding motion. Cf. Aguirre, 247 Ariz. at 78, ¶ 15.

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Such a statutory right is particularly critical here “[b]ecause dependency
proceedings implicate the ‘important and fundamental right to raise one’s
children.’” Jessicah C. v. DCS, 248 Ariz. 203, 207, ¶ 15 (App. 2020) (quoting
Brionna J. v. DCS, 247 Ariz. 346, 349, ¶ 8 (App. 2019)).

¶22 Consistent with the no-waiver principle, the Juvenile Rules
applicable to a dependency do not authorize a party to challenge a
dependency order by filing a motion for reconsideration or clarification.
The Juvenile Rules “govern the procedure for all matters in the juvenile
court,” Juvenile Rule 1(A), but several of the Civil Rules are incorporated
by reference. There is no explicit juvenile rule authorizing a motion for
reconsideration or clarification of a dependency or termination order. But
see Juvenile Rule 77(C) (applicable only in adoption proceedings) (an
“applicant who is determined to be unacceptable to adopt may file a motion
[for reconsideration]”); see also Juvenile Rule 107(A) (governing petitions for
review of juvenile matters) (“No motion for reconsideration in the court of
appeals shall be permitted.”). While a court may have the “inherent
authority” to reconsider an order, State v. Fendler, 127 Ariz. 458, 460 (App.
1980), the juvenile court is not obligated to entertain such a motion.

¶23 DCS incorrectly asserts that Mother should have raised the
issue by moving to set aside the judgment. See Juvenile Rule 46(E). A motion
to set aside the judgment “does not encompass situations . . . where a party
merely asks the court to reconsider a previous legal ruling.” Hyman v.
Arden-Mayfair, Inc., 150 Ariz. 444, 446 (App. 1986) (interpreting Civil Rule
60(b), then Civil Rule 60(c)); see also Juvenile Rule 46(E) (a motion under this
rule “shall conform to the requirements of [Civil] Rule 60(b)–(d)”). Notably,
Juvenile Rule 46(E) does not incorporate Civil Rule 60(a), titled “Corrections
Based on Clerical Mistakes; Oversights and Omissions.” Moreover, Civil
Rule 60(b) is not a substitute for a motion to alter or amend a judgment
under Civil Rule 59. Instead, it “is primarily intended to allow relief from
judgments that, although perhaps legally faultless, are unjust because of
extraordinary circumstances that cannot be remedied by legal review.”
Hyman, 150 Ariz. at 446, 447 (quoting Tippit v. Lahr, 132 Ariz. 406, 408–09
(App. 1982)).

¶24 The juvenile rules do not require a parent to take affirmative
action to ensure that the juvenile court follows the law before he or she is
entitled to an effective appellate review. See Bayless, 26 Ariz. App. at 270–71
(the failure to object to lack of a finding “does not deprive appellants of the
right to question on appeal the sufficiency of the evidence to support the
judgment entered”). And under the juvenile rules, “an appellant has 15
days to file a notice of appeal after entry of the juvenile court’s final order,

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and the rules do not provide for any time-extending motions that extend
the time to file a notice of appeal.” Logan B., 244 Ariz. at 537, ¶ 11, n.5
(citation omitted). A party contemplating challenging a dependency order
does not have to choose between filing a motion for clarification that the
court may entertain or an appeal.

¶25 A party cannot waive a requirement that our legislature has
imposed upon the juvenile court for the primary purpose of aiding an
appellate review. See Aguirre, 247 Ariz. at 78, ¶ 15; Reid, 222 Ariz. at 209,
¶¶ 18–19.3

2. The Order Lacks Sufficiently Specific Findings to Enable
this Court to Provide a Meaningful Review.

¶26 Waiver being inapplicable, we turn to DCS’s contention that
the court impliedly adopted all the allegations in the petition as its findings
and that reasonable evidence supports those findings. But this contention
highlights why the juvenile court is required to provide findings containing
the ultimate facts supporting its conclusion. If the court did intend to adopt
DCS’s factual allegations as its findings, it erred because several of those
allegations are not supported by the evidence and are insufficient as a
matter of law.

¶27 When a court fails to make or makes insufficient findings of
fact and conclusions of law, a reviewing court “must tailor the proper
remedy [for] each case.” Miller, 175 Ariz. at 300; Miller v. McAlister, 151 Ariz.
435, 437 (App. 1986). This generally means the appellate court will remand
for further findings, but it “may also decide an appeal without those
findings if it is in a position to do so.” Miller, 175 Ariz. at 300. For example,
in the rare case that does not turn on contested facts, if we can fully
understand the issues raised without findings, we may affirm without
findings. Id. (citing Davis v. United States, 422 F.2d 1139, 1142 (5th Cir. 1970)).

3 Although a parent cannot waive the juvenile court’s obligation to
make the required findings, nothing prevents a party from asking this court
to “suspend the appeal and revest jurisdiction in the juvenile court for the
limited purpose of allowing the court to make the required written
findings.” Logan B., 244 Ariz. at 537, ¶ 11, n.5; Selena T. v. DCS, 1 CA-JV
17-0527, 2018 WL 2440244, at *2, ¶ 9 (Ariz. App. May 31, 2018) (mem.
decision) (“DCS appropriately asked this court to suspend the appeal while
it filed proposed findings of fact and conclusions of law in support of the
court’s order.”).

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Where the record is so clear that the appellate court does not need the aid
of findings, the court may waive such defect on the ground that the error is
not substantial in that case. See City of Phoenix v. Consolidated Water Co., 101
Ariz. 43, 45 (1966) (“Of course, the purpose of findings is to tell someone
else how the court reached its decision.” (quoting Carpenters Union, Local
131 v. Cisco Constr. Co., 266 F.2d 365, 369 (9th Cir. 1959))); Gilliland v.
Rodriquez, 77 Ariz. 163, 167–68 (1954) (unnecessary to make findings on
undisputed matters). This is not such a case.

¶28 A child may be dependent when a parent is currently
unwilling or unable to protect the child from abuse or neglect. See A.R.S.
§ 8-201(25)(a) (neglect includes the inability or unwillingness of a parent to
provide his or her child with supervision, food, clothing, shelter or medical
care if the result is an unreasonable risk of harm to the child’s health or
welfare); Shella H. v. DCS, 239 Ariz. 47, 50, ¶ 14 (App. 2016). A parent’s prior
failure to protect may be evidence of that parent’s continuing inability to
care for the child when: “(1) the [prior] conditions were sufficient to declare
the child dependent; (2) the threat giving rise to those conditions remains
unresolved; and (3) the threat continues to pose an imminent risk of harm
to the child.” Aaron W. v. DCS, 1 CA-JV 19-0039, 2019 WL 4695887, at *8,
¶ 37 (Ariz. App. Sept. 26, 2019) (mem. decision); accord Cochise County Juv.
Action No. 5666-J, 133 Ariz. 157, 161 (1982) (speculative risk is insufficient);
Shella H., 239 Ariz. at 51, ¶ 16 (substantiated and unresolved threat); Pima
County Juv. Dependency Action No. 96290, 162 Ariz. 601, 604 (App. 1990)
(imminent risk of harm). Here, without findings to support the court’s
implicit conclusions, DCS’s mere allegation that Mother was currently
unable to care for Kourtney cannot be upheld.

¶29 DCS argues that “the record reasonably establishes that
Mother left Kourtney with an inappropriate caregiver for two weeks after
learning that Father was once again abusing substances.”4 DCS bore the
burden of establishing that Mother failed to protect Kourtney during the
time it alleges. See 96290, 162 Ariz. at 604. To meet its burden, DCS had to

4 Because DCS failed to connect its factual allegations to the legal
definition of neglect, and because DCS did not allege that Mother was
unwilling or unable to provide food, clothing, shelter or medical care, we
presume DCS’s neglect allegation is that Mother was unable or unwilling
to provide “supervision” because she failed to fly Kourtney back to
Arkansas within two weeks after DCS notified her that Father was
suspected of using “substances.” We note that DCS also did not remove the
child during this same two-week period.

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prove that Mother knew or had reason to know that leaving Kourtney with
Father posed an unreasonable risk to her health or welfare.

¶30 Regarding the domestic violence allegation, DCS failed to
establish that Mother knew or had reason to know that leaving Kourtney
with Father placed the child at an unreasonable risk of being exposed to
domestic violence. At the time of the hearing, DCS withdrew the allegation
that “Father has a history of domestic violence,” and it did not produce
evidence that Father was previously involved in instances of domestic
violence. No evidence supported the allegation that Mother should have
known Kourtney would witness domestic violence in Father’s home.

¶31 Regarding its allegation that Mother knew Father was
abusing substances, DCS argues that “[t]he juvenile court found that
Mother failed to protect Kourtney when she left Kourtney in Father’s care
for two weeks after finding out that he was abusing methamphetamine and
cocaine. Because of this, Kourtney was subjected to . . . substance abuse she
should not have had to witness. Reasonable evidence supports such
findings.” Presumably, DCS means that the juvenile court “implicitly”
made these findings and conclusions because, as discussed above, the
juvenile court did not make any express findings.

¶32 Unlike domestic violence, there was uncontroverted evidence
that Father had a history of substance abuse, he tested positive for illegal
substances in May 2018, and DCS notified Mother on August 7, 2018, that
it was concerned about Father’s use of “substances.”

¶33 During the trial, DCS and its witnesses did not mention any
drug by name but referred to unidentified “substances.” Mother did not
send Kortney to Father until June 2018, and, after the drug test he took in
May, the only substance Father continued to test positive for was THC.
Indeed, at the dependency hearing, DCS withdrew its allegation that Father
did not have a medicinal marijuana card. A reasonable inference would be
that the only “substance” Father was using while Kourtney was in his care
was marijuana. DCS did not allege or establish that Father was illegally
using marijuana, was abusing marijuana, or that Mother was aware of any
such abuse. Accordingly, without additional findings, we cannot determine
whether Kourtney was exposed to any substance abuse while she was in
Father’s care.

¶34 Finally, referring to an earlier occasion on which Mother
allowed her step-grandfather to care for her children, DCS alleged: “Mother
has a history of failing to protect her children. Mother left her children in

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 FRANCINE C. v. DCS
Opinion of the Court

the care of a registered sex offender.” Again, DCS failed to connect how
Mother’s knowledge that her step-grandfather was a registered sex
offender proves that Mother knew or should have known that leaving the
children in his care six years earlier posed an unreasonable risk of imminent
harm to Kourtney’s current health or welfare, or that there was a continuing
risk of harm.

C. On Remand the Court Must Allow the Parties to Present
Additional Evidence.

¶35 A dependency adjudication must be “based upon the
circumstances existing at the time of the adjudication hearing” and not
merely on past circumstances. Shella H., 239 Ariz. at 50, ¶ 12; see also A.R.S.
§ 8-201(15)(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)); A.R.S. § 8-201(15)(a)(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)). In this case, the dependency
hearing occurred over six months ago. On remand, if a party requests to
present additional evidence to show the current circumstances, the court
must grant the request.

CONCLUSION

¶36 We vacate the juvenile court’s dependency order and remand
for further proceedings consistent with this opinion.

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

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