In Re Dependency as to Z.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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

IN RE DEPENDENCY AS TO Z.W.

No. 1 CA-JV 22-0251
FILED 6-6-2023

Appeal from the Superior Court in Yuma County
No. S1400JD20210147
The Honorable Stephen J. Rouff, Judge (Retired)

AFFIRMED

COUNSEL

Meerchaum & Orduno PLLC, Yuma
By Candice Orduno-Crouse
Counsel for Appellant Gary W.

Law Office of Elizabeth M. Hale, Lakeside
By Elizabeth M. Hale
Counsel for Appellant Amber H.

Arizona Attorney General’s Office, Tucson
By Dawn Rachelle Williams
Counsel for Appellee Department of Child Safety
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MEMORANDUM DECISION

Judge Randall M. Howe delivered the decision of the court, in which
Presiding Judge Samuel A. Thumma and Judge Anni Hill Foster joined.

H O W E, Judge:

¶1 Amber H. (”Mother”) and Gary W. (”Father”) appeal the
juvenile court’s order adjudicating their daughter Z.W. dependent. For the
following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 “[W]e view the evidence in the light most favorable to
sustaining the juvenile court’s findings.” Willie G. v. Ariz. Dep’t of Econ. Sec.,
211 Ariz. 231, 235 ¶ 21 (App. 2005). In December 2020, Mother gave birth to
Z.W. at 30 weeks’ gestation in Yuma, Arizona. After her birth, Z.W. had
medical needs, including feeding difficulties requiring a feeding tube and
special formula. She remained in the neonatal intensive care unit for about
a month. Hospital notes indicated that Mother and Father missed visits
with Z.W. or stayed for just a few minutes at a time, and they therefore
missed opportunities to hold her or participate in her care.

¶3 When Z.W. was ready to be discharged, she no longer
required a feeding tube and was feeding well on specialized formula.
Z.W.’s doctor was concerned about Mother properly feeding Z.W. and
asked her to stay overnight to demonstrate her ability, but Mother declined
because she was “in the middle of moving” and “didn’t have the time to do
that.” Hospital staff instructed Mother to feed Z.W. every three hours and
to schedule a follow-up appointment with an ophthalmologist because
premature babies are at higher risk for developmental delays to their optic
nerves, which, if untreated, could cause vision problems or blindness.

¶4 At home, Mother, Father, and Z.W.’s paternal uncle took
turns caring for her. The parents missed Z.W.’s two-month well check and
two ophthalmologist appointments, leading the Department of Child
Safety to investigate. The Department found additional missed medical
appointments and was concerned with Mother’s report that she was having
difficulty maintaining employment because of Z.W.’s medical needs. When
Mother completed the eye appointment, the Department closed the
investigation.

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¶5 Meanwhile, during one of Z.W.’s checkups in February 2021,
a doctor noted that she was missing her frenulum (a small fold of skin
beneath the tongue) and had some redness where it should have been.
Mother denied any trauma had occurred. Mother later contacted Z.W.’s
pediatrician and reported that Z.W. was vomiting, having bloody stool, and
having skin reactions. The day that the parents switched Z.W.’s formula,
Z.W. did not eat all day because Mother was waiting for Father to pick up
the formula.

¶6 Mother made differing statements on how often she would
feed Z.W. Despite a pediatric nurse counseling Mother on feeding
techniques, Z.W. had lost twelve ounces and appeared emaciated and frail;
she was not smiling or cooing. The pediatric nurse instructed Mother to
take Z.W. for lab tests as soon as possible. The parents, however, did not
take Z.W. to the lab for another week. Lab results showed that Z.W. had
hyperthyroidism, a high platelet count (suggesting dehydration), and a
low-grade viral infection. The nurse also changed Z.W.’s formula to one
with higher calories that infants generally tolerate better. Z.W. regained 12
ounces, and her other symptoms subsided.

¶7 On April 21, Mother fed Z.W. and put her to bed at 8:00 a.m.
Z.W. woke up around 1 p.m., and Mother put her on her belly while she
prepared a bottle for her. Father went into the backyard to tend to their
dogs. When Mother returned, she found Z.W. limp, pale, unresponsive, and
breathing slowly. Father attempted to rub Z.W.’s sternum. Eventually, Z.W.
began posturing—flexing her back and extending her arms in a rigid
manner. They called 9-1-1.

¶8 The paramedics arrived around 3:00 p.m. They found Z.W.
pale and unresponsive and with several red marks on her face and body.
She had not eaten since that morning. The parents denied that Z.W. had
experienced any seizures, falls, or injuries. The parents provided no
additional explanation, but Mother questioned whether one of the dogs was
the cause. They did not mention Z.W.’s posturing or recent fever. In the
ambulance, Z.W.’s body stiffened into an abnormal body posture called
deceberate posturing, which occurs regularly with trauma and brain injury
but can also result from hypoxia, meningitis, or stroke. After leaving Z.W.
at the hospital, the paramedics filed a report with the Department.

¶9 At the hospital in Yuma, Mother again denied that Z.W. had
experienced any accidents, injuries, or illness and did not mention the
infant’s recent fever. Hospital staff intubated Z.W. to help her breathe, gave
her anti-seizure medication, and performed tests on her. Because the

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hospital did not have a pediatric intensive care unit, Z.W. was flown to
Phoenix Children’s Hospital (“PCH”). After Z.W. had an MRI at PCH, the
pediatric neuroradiologist diagnosed her with two subdural hematomas—
bleeding into her brain—a spinal bleed, a spinal ligament injury, and other
possible damage to her brain. The hematomas appeared to have occurred
at the same time within the previous 10 days.

¶10 After review, the director of PCH’s child protection team
(“Director”) concluded that Z.W.’s injuries were highly suspicious for
abusive head trauma and that no other diagnosis could explain her current
and former injuries. The Director noted that Z.W. was malnourished; tests
revealed the infant was unable to swallow properly and required a feeding
tube. Mother could not explain Z.W.’s injuries.

¶11 The Department further investigated, and law enforcement
also investigated. The detective interviewing Mother reported that she
showed very little emotion except when talking about the Department or
accusing the hospital of causing Z.W.’s injuries. In addition, Mother’s and
Father’s explanations for the injuries changed and evolved. Pursuant to a
valid search warrant, police recovered heated text messages on the parents’
phones, in which Mother threatened to tell police “the real truth about
[Father]” and expressed concern that Z.W.’s paternal grandfather would
“open[] his mouth and . . . cause[] an issue” that would result in her losing
her parental rights to Z.W. Ultimately, the parents were arrested and
indicted on criminal charges.

¶12 The Department petitioned the court to adjudicate Z.W.
dependent based on abuse and neglect and placed her with a foster family.
The Department offered the parents services, including psychological
evaluations, parenting services, clinically supervised visits, supervised
visits, and transportation assistance. The parents participated in supervised
visits but declined to participate in any other services.

¶13 By trial, Z.W. had gained weight and was feeding by mouth
but still required a feeding tube. During trial, Mother testified that she
thought the instructed feedings were “too much,” so she would feed Z.W.
“[i]f she show[ed] cues,” including “crying and a sucking motion.” She
added that “if [Z.W.] didn’t want the bottle, we didn’t give the bottle to
her.” The pediatric neuroradiologist opined that Z.W.’s spinal injury
suggested that she suffered a direct injury to the spine in addition to her
head, which suggested abusive head trauma.

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¶14 The Director testified that Z.W. appeared “really
malnourished” and that the scratches and excoriations on her head and
body were in areas where she could not have inflicted them herself. In
reviewing Z.W.’s past records, the Director noted significant concern about
her possible torn frenulum, which in nonmobile infants only results from
force, such as forced feeding. The parents’ neurologist opined that a stroke
caused Z.W.’s injuries. But the Director and the Department’s pediatric
neurologist disagreed with his opinion. The pediatric neurologist further
explained that Z.W.’s head and spinal hematomas were in two different
spaces relative to the dura, so it was not likely that one could have caused
the other.

¶15 After trial, the juvenile court adjudicated Z.W. dependent. It
found specifically that “the parents have been consistently defensive and
uncooperative with [the Department] and have refused all services except
supervised visitation,” which “has caused the initial concerns regarding
parental competency to remain unchanged.” It also found that Z.W. “is still
a vulnerable child due to her health and age” and that the parents “are
currently not minimally competent parents and are unable to provide
[Z.W.] with proper care in a safe environment.” The juvenile court rejected
the parents’ assertion that medical conditions caused Z.W.’s
malnourishment. It found that “she was a very vulnerable child who was
not receiving minimally adequate parental care” and “[s]he was not
thriving and was malnourished and grossly underweight while in her
parents’ care.” It further found that she “was not being timely or properly
fed,” and that her “medical needs were not being adequately addressed.”
The parents timely appealed.

DISCUSSION

¶16 The parents argue that the juvenile court erred in adjudicating
Z.W. dependent because insufficient evidence supports the juvenile court’s
order.1 We do not disturb a dependency adjudication unless no reasonable
evidence supports it. Willie G., 211 Ariz. at 235 ¶ 21. This court “review[s]
the [juvenile] court’s interpretation and application of the dependency
statute de novo.” Carolina H. v. Ariz. Dep’t of Econ. Sec., 232 Ariz. 569, 571

1 Father also argues that the juvenile court should have dismissed the
case because it did not find abuse and the petition did not assert neglect. He
has misread the record. The petition expressly alleged neglect and abuse.
Although the language in the supportive factual allegations does not
expressly track the neglect provision, it is similar enough to put Father on
notice that the Department was pursuing neglect.

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¶5 (App. 2013). A dependency petition must contain “[a] concise statement
of the facts to support the conclusion that the child is dependent.” A.R.S.
§ 8–841(C)(3); see also A.R.S. § 8–201(27) (defining “petition” as “a written
statement of the essential facts that allege . . . dependency”).

¶17 The juvenile court must determine whether a child is
dependent by a preponderance of the evidence. A.R.S. § 8–844(C)(1). A
“dependent child” is one “whose home is unfit by reason of abuse [or]
neglect . . . by a parent, a guardian or any other person having custody or
care of the child.” A.R.S. § 8–201(15)(a)(iii). “Neglect” is a parent’s “inability
or unwillingness . . . to provide [a] child with supervision, food, clothing,
shelter or medical care if that inability or unwillingness causes substantial
risk of harm to the child’s health or welfare.” A.R.S. § 8–201(25)(a).

¶18 “The juvenile court 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). A child may be dependent when the parent is
unwilling or unable to protect the child from abuse or neglect. See id. at 50
¶ 14. But the circumstances that put the child at risk for abuse or neglect
“need not be continuous or actively occurring at the time of the adjudication
hearing to support a finding of dependency”; rather, “the substantiated and
unresolved threat is sufficient.” Id. at 51 ¶ 16.

¶19 Sufficient evidence supports the juvenile court’s ruling. The
parents were Z.W.’s main caregivers, and they oversaw her care the day she
required emergency services. They did not provide paramedics and
hospital staff reasonable explanation for her injuries. The juvenile court
found that Z.W.’s injuries were “caused by some kind of trauma,” and
although it could not determine whether the trauma was “accidental,
intentional, or recklessly caused,” it found that the “inescapable reality is
that [Z.W.] was a very vulnerable child who was not receiving minimally
adequate parental care.” Z.W. suffered serious injuries she could not have
inflicted herself, requiring her to be airlifted to PCH. Numerous medical
professionals assessed Z.W. and determined that no other medical cause
explained her injuries, and thus they suspected abusive head trauma.

¶20 In addition, the evidence shows that Z.W. was malnourished.
Z.W. was a premature child who needed extra care. Yet the parents refused
to stay overnight so hospital staff could observe and give feedback on how
to feed her. Z.W. was feeding well on the formula when doctors discharged
her home. But after only two months in the parents’ care, Z.W. had lost 12
ounces and was failing to thrive. Although she gained that weight back

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when she was fed new formula, just a few days later, PCH doctors
determined she was nevertheless “really malnourished.” The juvenile court
found that Z.W. did not receive “minimally adequate parental care,” she
“was malnourished and grossly underweight while in her parents’ care,”
she “was not being timely or properly fed,” and her “medical needs were
not being adequately addressed.”

¶21 Furthermore, the parents had missed or delayed several
medical appointments. Additionally, Mother’s waiting to feed Z.W. until
she showed cues like crying, the parents’ inconsistent stories about how
often they would feed her, and their text messages that Z.W. had not eaten
all day support a reasonable inference that they were not feeding Z.W.
every three hours as instructed. Indeed, Z.W.’s thyroid issue resolved at
PCH, and her endocrinologist ultimately opined that her former abnormal
labs were the result of malnutrition, not a disease. These findings support
the court’s determination that the parents neglected Z.W.

¶22 Reasonable evidence at the time of the dependency
adjudication hearing also supports the court’s ruling. The court found that
the parents “have been consistently defensive and uncooperative with
D[epartment].” And by refusing all services except for visitation, the
parents missed opportunities to demonstrate their parental competency.
Additionally, they participated in only a few extra visits with Z.W., did not
attend feeding class, did not ask about or attend most of Z.W.’s medical
appointments, and had not yet articulated a plan to keep her safe or meet
all of her medical appointments and needs. Their last-minute agreement to
participate in clinically supervised parenting time and a general parenting
class does not negate the court’s finding that they remained unable to
provide Z.W. with proper care in a safe environment.

¶23 The parents argue Z.W.’s injuries were the result of a stroke—
their main theory at trial. The juvenile court considered this evidence but
ultimately found that even if Z.W. suffered a stroke, the trauma or
malnourishment that the parents inflicted on her caused the stroke.
Regardless, reasonable evidence supports the court’s decision to reject the
parents’ theory. The Director and the pediatric neurologist disagreed with
their expert’s opinion that a stroke caused Z.W.’s injuries. The Director
testified that that theory had been conclusively refuted in medical
literature. The neurologist further explained that Z.W.’s head and spinal
hematomas were in two different spaces relative to the dura, so one could
not have likely caused the other.

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¶24 Finally, both parents assert that the juvenile court was
required to find they knew or reasonably should have known about the
neglect. This requirement is present only in the termination statute,
however, not the dependency statute, which requires only that a parent be
“unwilling or unable” to provide a child with certain basic needs. Compare
A.R.S. § 8–201(25)(a) (requiring the court to determine whether the parents
were unable or unwilling to provide the child with certain basic needs) with
A.R.S. § 8–533(B)(2) (to terminate a parent’s rights to a child, the court must
find “the parent knew or reasonably should have known that a person was
abusing or neglecting a child”). Because sufficient evidence in the record
supports the juvenile court’s ruling, the court did not err.

CONCLUSION

¶25 For the foregoing reasons, we affirm.

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

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