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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

No. 1 CA-JV 23-0083
FILED 10-5-2023

Appeal from the Superior Court in Maricopa County
No. JD535134
The Honorable Amanda M. Parker, Judge

AFFIRMED

COUNSEL

David W. Bell, Attorney at Law, Higley
By David W. Bell
Counsel for Appellant Father

Arizona Attorney General’s Office, Tucson
By Jennifer L. Thorson
Counsel for Appellee Department of Child Safety
 IN RE DEPENDENCY AS TO E.W. AND D.W.
Decision of the Court

MEMORANDUM DECISION

Judge Samuel A. Thumma delivered the decision of the Court, in which
Presiding Judge D. Steven Williams and Judge Paul J. McMurdie joined.

T H U M M A, Judge:

¶1 Father appeals an order finding his children dependent.
Because he has shown no error, the order is affirmed.

FACTS AND PROCEDURAL HISTORY

¶2 Father and Mother have two children who are the subject of
this appeal, E.W. born in 2021 and D.W. born in 2022. Mother has three
older children with different fathers. From 2017 to mid-2022, the
Department of Child Safety (DCS) received several reports that the parents
were engaging in domestic violence and physically abusing Mother’s oldest
child. Parents refused DCS access to the children and the reports were not
substantiated. In mid-2022, DCS offered in-home services, but the parents
did not participate.

¶3 In September 2022, DCS saw the oldest child with a black eye
and swollen lip. Although DCS removed the two oldest children, it left the
three youngest, including E.W. and D.W., in the home with a safety plan.
DCS filed a dependency petition as to E.W. and D.W., alleging domestic
violence as to Father. DCS offered Father in-home services, including the
Nurturing Parenting Program (NPP) and Family Connections. Father,
however, responded that he did not need in-home services and he did not
regularly participate.

¶4 Meanwhile, the parents continued to engage in domestic
violence. In January 2023, Mother and Father fought in front of the children;
Mother later reported Father slapping her, and the case manager saw
scratches on her stomach. The case manager also found very little food in
the home, and the parents were feeding six-month-old D.W. oat milk,
which lacked necessary nutrients. Mother reported the family had recently
been evicted and that Father, on whom they were financially dependent,
left with the food vouchers. The case manager provided food and ensured
Father returned the vouchers that evening.

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 IN RE DEPENDENCY AS TO E.W. AND D.W.
Decision of the Court

¶5 In February 2023, Mother called the police and reported she
had locked herself in a car with E.W. and D.W. because Father was
threatening to take the children. Given the ongoing domestic violence
issues, DCS took custody of E.W. and D.W. At that time, both children were
dehydrated, with D.W. requiring intravenous fluids.

¶6 DCS referred Father for substance-abuse testing, a
psychological evaluation, domestic violence counseling, NPP, Family
Connections and supervised visits. Father disagreed with the need for
services but began some of them. Father completed a psychological
evaluation and an intake for NPP. He did not complete a hair follicle test as
requested but provided a urinalysis sample that was positive for THC.
Father visited the children while they were in Mother’s care but did not
visit them after DCS removed them.

¶7 After an adjudication, the court found E.W. and D.W.
dependent, and Father timely appealed. This court has appellate
jurisdiction under Article 6, Section, 9, of the Arizona Constitution, Arizona
Revised Statutes A.R.S. §§ 8-235(A), 12-120.21(A) and 12-2101(A) and Ariz.
R.P. Juv. Ct. 602-03.

DISCUSSION

¶8 Father argues insufficient evidence supports the dependency
finding. This court will accept the juvenile court’s factual findings “if
reasonable evidence and inferences support them” and will affirm the
court’s legal conclusions unless they are clearly erroneous. Brionna v. Dep't
of Child Safety, 533 P.3d 202, 209 ¶ 30 (Ariz. 2023).

¶9 A moving party must prove dependency by a preponderance
of the evidence. A.R.S. § 8-844(C)(1). A “dependent child” is one who is
“[i]n need of proper and effective parental care and control and who has . .
. no parent . . . willing to exercise or capable of exercising such care and
control” or “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)(i), (iii). “Neglect” means 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).

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 IN RE DEPENDENCY AS TO E.W. AND D.W.
Decision of the Court

¶10 “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.

¶11 Here, the court found the children dependent as to Father
because he engaged in domestic violence in front of them. The court also
made “a credibility determination that the instances of domestic violence
were not just occasioned by Mother, and that in any event, Father elected
to remain in a relationship with Mother . . . despite his acknowledgment
that there were problematic instances of domestic violence.” The court
further found that the children were severely dehydrated and
undernourished after being in the parents’ care. The trial evidence
supported these findings.

¶12 Father contends that there was no evidence at the time of trial
that the children were at risk of domestic violence because he was no longer
living with Mother. The evidence shows, however, that a “substantiated
and unresolved threat” of domestic violence existed at the time of trial. See
id. Father testified to a history of violent relationships. He also admitted to
at least five domestic violence incidents with Mother. Two incidents
occurred two months before trial, and the children were present during
both. Father agreed the children were harmed by watching these incidents,
but he had not engaged in domestic violence education or counseling.
Moreover, although Father had obtained an order of protection against
Mother, he kept it in place for only two days.

¶13 Father also argues that Mother is to blame for the children’s
condition at removal and asserts they would not be at risk of malnutrition
in his care. But the court found that Father contributed to the children’s
malnourishment. Indeed, Father testified he was the primary food provider
for the family. Moreover, Father had been living with Mother and the
children just days before the DCS investigator reported that the home had
insufficient food for the children. And Father had left the home with the
food vouchers, leaving Mother unable to get more food to feed the children.

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 IN RE DEPENDENCY AS TO E.W. AND D.W.
Decision of the Court

¶14 Finally, the court found that “Father has only recently
obtained new housing, and he admits that he is not legally on that lease”
because of a prior eviction. The court also found that DCS had not yet
evaluated Father’s new residence, Father had only recently begun to engage
in services and he had not visited the children since their removal despite
DCS setting up supervised visits for him. Reasonable evidence supports
these findings and the conclusion that the children were dependent as to
Father.

CONCLUSION

¶15 Because Father has shown no error, the dependency finding
is affirmed.

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

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