Mark O. v. Dcs, A.O.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MARK O., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, A.O., Appellees.

No. 1 CA-JV 19-0417
FILED 8-25-2020

Appeal from the Superior Court in Maricopa County
No. JD33436
The Honorable Lori Ash, Judge Pro Tempore

AFFIRMED

COUNSEL

Robert D. Rosanelli, Attorney at Law, Phoenix
By Robert D. Rosanelli
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By Doriane F. Neaverth
Counsel for Appellee
 MARK O. v. DCS, A.O.
Decision of the Court

MEMORANDUM DECISION

Chief Judge Peter B. Swann delivered the decision of the court, in which
Presiding Judge Samuel A. Thumma and Judge Randall M. Howe joined.

S W A N N, Chief Judge:

¶1 Mark O. (“Father”) appeals the superior court’s order finding
his son, A.O., dependent. He argues the evidence was insufficient to
establish that A.O. was dependent on the grounds of abuse and neglect. We
affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Father is the adoptive parent of C.O., born in December 1999,
and A.O., born in June 2002. In June 2019, A.O. left early in the morning to
attend a basketball tournament. When he returned, he discovered that
Father had locked him out of the house and refused to let him back inside.

¶3 Father called the police, and once officers arrived, Father
stated that A.O. “was out of control” and wanted police to take him away
from the home. Father explained that he and A.O. had gotten into a verbal
altercation two days earlier but failed to provide police with concrete
details about the fight. Once the officer indicated that he was unable to
remove A.O. from the property without allegations of a crime, Father began
to allege that A.O. threatened to kill him during the argument and that he
was now fearful for his life.

¶4 A.O., who had been at the basketball tournament all day,
denied threatening Father and told officers that Father had been attempting
to remove him from the house for some time. The officer later testified that
although he did not believe Father’s accusations, he still called the
Department of Child Safety (“DCS”) to take custody of A.O.

¶5 DCS then filed a dependency petition as to A.O.,1 alleging
abuse and neglect. The court held a contested dependency adjudication
hearing, in which Father, the police officer, A.O., and C.O. testified. Both

1 Although C.O. was also adjudicated dependent, the superior court
dismissed the dependency when he turned 18. C.O. is not subject to this
appeal.

2
 MARK O. v. DCS, A.O.
Decision of the Court

C.O. and A.O. testified that Father had previously physically abused them.
C.O. recounted that in 2016, Father choked A.O. When C.O. called the
police, Father requested that C.O. be taken to the hospital for a psychiatric
evaluation. After Father refused to pick C.O. up from the hospital, DCS
became involved and C.O. was removed from the home. C.O. also testified
that Father regularly punched and choked him.

¶6 A.O. testified that Father had previously choked, shoved, and
hit him and that he witnessed Father punch C.O. numerous times. He
further testified that Father locked the refrigerator while he was living with
his ex-wife. Once Father’s ex-wife moved out of the house, the lock was
temporarily removed, but it was put back onto the refrigerator in May 2019
when communication between A.O. and Father dissipated.

¶7 Father denied the allegations of physical abuse and that the
refrigerator remained locked. Despite Father’s denials, the superior court
found A.O. dependent. The court took judicial notice that DCS had
previously taken custody of C.O. in 2016 based on allegations from Father
that C.O. “had ‘out of control’ behaviors, was physically aggressive, and
‘may’ have had substance abuse issues.” The court also noted that Father’s
concerns about C.O. mimicked Father’s concerns about A.O. three years
later.

¶8 Father appeals.

DISCUSSION

¶9 Father contends that the superior court’s adjudication of A.O.
as dependent was clearly erroneous and contrary to substantial evidence in
the record.

¶10 Because the superior court “is in the best position to weigh
the evidence, observe the parties, judge the credibility of witnesses, and
resolve disputed facts,” Ariz. Dep’t of Econ. Sec. v. Oscar O., 209 Ariz. 332,
334, ¶ 4 (App. 2004), we review an order adjudicating a child dependent for
an abuse of discretion, Louis C. v. Dep’t of Child Safety, 237 Ariz. 484, 488,
¶ 12 (App. 2015). The superior court is required to find a child dependent
by a preponderance of the evidence and “must consider the circumstances
as they exist at the time of the dependency adjudication hearing in
determining whether a child is a dependent child.” Shella H. v. Dep’t of Child
Safety, 239 Ariz. 47, 48, ¶ 1 (App. 2016); Louis C., 237 Ariz. at 490, ¶ 23.

¶11 A dependent child is adjudicated to be “[i]n need of proper
and effective parental care and control and who has no parent . . . willing

3
 MARK O. v. DCS, A.O.
Decision of the Court

to exercise or capable of exercising such care and control” or “whose home
is unfit by reason of abuse [or] neglect.” A.R.S. § 8-201(15)(a)(i), (iii). Abuse
is defined as “the infliction or allowing of physical injury” whereas neglect
is defined as “[t]he inability or unwillingness of a parent . . . to provide . . .
supervision, food, clothing, shelter or medical care if that inability or
unwillingness causes unreasonable risk of harm to the child’s health or
welfare.” A.R.S. § 8-201(2), (25)(a).

¶12 Father argues that his conduct in June 2019 did not rise to the
level of child abuse or neglect because he did not use force against the
minor, and A.O. received appropriate care once in DCS custody. Father
further contends that no evidence showed “physical injury, impairment of
bodily function or disfigurement.” Specifically, he argues that “[t]here was
no testimony of redness, bruising, or pain associated with the alleged
physical conduct.” But C.O. testified that when Father punched him in the
face, it would occasionally leave marks. And a court may rely on
circumstantial evidence to infer the infliction of physical injury. See Jesus
M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 282, ¶ 13 (App. 2002). Here,
both A.O. and C.O. testified that Father hit, choked, and punched them on
numerous occasions. The superior court found this testimony to be
credible, and we will not reweigh the superior court’s credibility
determinations. See id. at ¶ 12.

¶13 Father next contends that he was justified in denying A.O.
access to the house after A.O. threatened to kill him. Because Father failed
to present this argument to the superior court, he has waived it on appeal.
See Christy C. v. Ariz. Dep’t of Econ. Sec., 214 Ariz. 445, 452, ¶ 21 (App. 2007).

¶14 In any event, sufficient evidence proved abuse and neglect
outside of the June 2019 incident. Although the superior court must
consider the circumstances existing at the time of the dependency hearing,
Shella H., 239 Ariz. at 48, ¶ 1, “we will not hesitate to affirm a finding of
dependency as to parents who presently deny that they are responsible for
past abuse and neglect,” Pima Cty. Juv. Dependency Action No. 96290, 162
Ariz. 601, 604 (App. 1990). Here, even though Father denied abusing the
children and alleged that he only locked A.O. out of the house because he
feared for his life, both A.O. and C.O. testified to numerous other instances
of physical abuse. Accordingly, the record supports the superior court’s
conclusion that A.O. was dependent as to Father.

4
 MARK O. v. DCS, A.O.
Decision of the Court

CONCLUSION

¶15 We affirm the order adjudicating A.O. a dependent child.

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

5