In Re Dependency as to M.H.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

No. 1 CA-JV 23-0109
FILED 11-16-2023

Appeal from the Superior Court in Maricopa County
No. JD42304
The Honorable Michael J. Herrod, Judge

AFFIRMED

COUNSEL

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

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

MEMORANDUM DECISION

Judge Brian Y. Furuya delivered the decision of the Court, in which
Presiding Judge James B. Morse Jr., and Judge Cynthia J. Bailey joined.

F U R U Y A, Judge:

¶1 Mother appeals the juvenile court’s order adjudicating her
child dependent. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Mother and Father are the parents of M.H., born in January
2020. The parents moved to Arizona in 2017, and over the next five years,
engaged in significant domestic violence resulting in several arrests and
over twenty police reports. Consistent with Mother’s statement to police
that the violence was escalating, eight of the incidents occurred between
May and September 2022. During several of the incidents, police described
Mother as intoxicated and aggressive. In the past, Mother participated in
court-ordered domestic violence classes and therapy to no avail.

¶3 In September 2020, police arrested Father after he reportedly
choked Mother and bruised her arms. Mother stated she was afraid of
Father because he had previously threatened to kill her, but she had no
independent financial means to support herself. Mother had opportunities
to stay elsewhere after the incident, including with friends and family, but
she declined them and returned to Father. The Department of Child Safety
(“DCS”) also offered the family in-home services, which they declined.

¶4 In May 2022, Father was arrested after Mother reported he
had picked her up by the neck, pushed her against a wall, and knocked her
to the ground. Mother later told DCS Father was “jealous of the attention
[M.H.] got from her” and had threatened to kill her numerous times.
Mother also said she was “concerned for [M.H.’s] safety,” while
simultaneously denying he was in danger from the domestic violence.
Father obtained an order of protection against Mother, but both parents
violated the order, which was later quashed.

¶5 Mother completed a domestic violence class in September
2022. That same month, DCS implemented a safety plan in which Father
moved out of the home and a relative moved in with Mother to ensure

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M.H.’s safety and immediately report any escalating situation between the
parents.

¶6 Nonetheless, the parents violated the safety plan twice. First,
Mother was arrested for disorderly conduct after she physically attacked
Father. She was placed on house arrest and prohibited from contacting him.
A month later, DCS found Mother and Father in the home with M.H.,
without the other relative present. DCS took custody of M.H. and filed a
dependency petition.

¶7 At that time, Mother denied that her and Father’s domestic
violence had any effect on M.H. DCS asked Mother to complete substance
abuse testing and treatment, a psychological evaluation, individual and
domestic violence counseling, anger management courses, the Nurturing
Parenting Program, and the Family Connections program. Mother
participated in services and successfully completed the Nurturing
Parenting Program and a domestic violence and parenting class. She also
began individual counseling but continued to deny or minimize her
domestic violence and mental health issues.

¶8 In November 2022, Mother completed a psychological
evaluation. The psychologist diagnosed her with an unspecified personality
disorder with borderline traits and with severe alcohol use disorder. The
borderline traits the psychologist observed in Mother include impulsivity,
mood dysregulation, anger, threats, acts of self-harm, and paranoia. The
psychologist also reported it was “evident that [Mother] has an alcohol
addiction as well as significant emotional instability and poor frustration
tolerance.”

¶9 Mother minimized the violence and denied alcohol use,
leading the psychologist to determine she was in denial or had poor insight,
“which will pose a significant barrier to treatment and change.” The
psychologist also opined that Mother’s borderline traits significantly impair
her parenting abilities and that children in her care are at risk of physical
harm, “especially if weapons and property damage is involved, which has
occurred on at least two occasions with [the parents].” The psychologist
gave Mother a poor prognosis of safely parenting M.H. in the future,
recommending a psychiatric consultation for possible medication; domestic
violence, healthy relationship, anger management, and parenting classes;
marriage counseling if Mother remained with Father; Dialectical Behavior
Therapy (“DBT”); and outpatient substance abuse treatment. The
psychologist stressed that DBT and substance abuse treatment be
prioritized over marriage therapy.

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¶10 In January 2023, Mother completed a substance abuse
assessment, but—based solely on her self-report—was not recommended
for further services. Likewise, Mother completed two psychiatric
evaluations, one with a nurse practitioner and one with a master’s level
behavioral health professional. At each, Mother denied she used alcohol or
had experienced any mental health symptoms, and she did not provide the
evaluators with a complete copy of her previous psychological evaluation.
DCS therefore rejected these evaluations and asked her to complete an
exam with a psychiatrist.

¶11 That same month, Mother reported that Father had moved
out of state. Based on Father’s move and Mother’s participation in services,
DCS returned M.H. to Mother’s care, again with a safety plan. This plan
required Mother or the safety monitor to notify DCS if Father returned to
Arizona for visits and required the monitor to supervise any visits and to
remove M.H. if Father remained in the home.

¶12 Mother was eventually evaluated by a psychiatrist. But again,
she denied any psychiatric symptoms or recent alcohol use and gave
noncommittal answers when asked about reconciling with Father. Mother
also denied or declined to answer questions about whether she had
behaved aggressively in the past. Although the psychiatrist was suspicious
of Mother’s denials, he only diagnosed her with relationship distress and a
history of partner violence and prescribed no medication.

¶13 About a month later, the case manager observed Mother and
Father arguing over the phone. The following month, the juvenile court
held a dependency hearing. At that time, Mother had not yet participated
in DBT and had only completed about three months of individual
counseling. The court adjudicated M.H. dependent, and Mother appealed.
We have jurisdiction under Arizona Revised Statutes (“A.R.S.”) § 8-235(A).

DISCUSSION

¶14 Mother argues insufficient evidence supports the juvenile
court’s dependency order. We accept the 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 J. v.
Dep’t of Child Safety, 255 Ariz. 471, 478–79 ¶¶ 30–31 (2023) (citation omitted).
The court’s legal conclusions are clearly erroneous only if we determine “as
a matter of law that no one could reasonably find the evidence” supporting
them meets the applicable burden of proof. Id. at 479 ¶ 31 (citation omitted).

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¶15 The court must determine whether a child is dependent by a
preponderance of the evidence. A.R.S. § 8-844(C)(1). As relevant here, a
“[d]ependent child” is one who is adjudicated to be “[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).

¶16 “[T]he 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.

¶17 Here, Mother argues the court had no basis for finding she
had not addressed her domestic violence, alleged alcohol abuse, and any
“other concerns related to her parenting.” She cites her participation in
services and contends that because Father no longer lived in the home,
“there was no ‘imminent risk of harm’ to M.H.[,] and the previous threats
to his safety had been adequately resolved.”

¶18 Although Mother participated in services, the court
nevertheless found she had “not addressed the issues concerning domestic
violence, nor her past history of alcohol abuse that fuels the domestic
violence.” Reasonable evidence in the record supports this finding. The
record shows the parents have a fourteen-year history of significant
domestic violence which was ongoing only six months before trial. After
the parents moved to Arizona, several police reports indicate Mother was
intoxicated and the aggressor in the altercations, including one in which she
became intoxicated and began a fight with two female neighbors. Another
report indicated Mother had cut herself and threatened to commit suicide.
And after Mother completed a domestic violence class in September 2022,
she physically attacked Father only three days later and argued with him
over the phone a month before trial.

¶19 Regarding her mental health, Mother was diagnosed with
unspecified personality disorder with borderline traits and severe alcohol
use disorder. Despite Mother’s assertion she had not drunk alcohol since

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moving to Arizona, the psychologist reported it was “evident that [Mother]
has an alcohol addiction as well as significant emotional instability and
poor frustration tolerance.” Indeed, Mother admitted to being “a little
buzzed” at a domestic violence incident in September 2022. When asked at
trial about her alcohol use, Mother suggested she had not drunk alcohol “in
a long time,” but acknowledged the psychologist could have been
“confused” by the police reports stating she was intoxicated. Considering
this evidence, the court did not err in finding Mother “appears to be trying
to superficially comply with services” without “addressing the real
underlying issues of domestic violence, lack of impulse control, and mood
dysregulation.” Nor did the court err in its impression that Mother is “in
denial concerning the issues that brought [M.H.] into care, and that Mother
minimizes her [own] behaviors and needs.”

¶20 Nor does Mother’s participation in services substantiate her
assignment of error. As the court further found, Mother failed to “compl[y]
with the case plan by failing to engage in DBT therapy.” The record likewise
supports this finding.

¶21 By trial, Mother had engaged in only three months of
individual counseling and still had not engaged in DBT or substance abuse
treatment, which the evaluating psychologist described as crucial to her
safely parenting M.H. She also continued to minimize her prior domestic
violence, going so far as to claim that, contrary to past reports, no domestic
violence had occurred in M.H.’s presence and that she had not physically
attacked Father.

¶22 Further, although Mother notes she underwent two
psychological evaluations, she chose inappropriate providers to conduct
her psychiatric evaluations, “either purposely or through
misunderstanding,” and, at those evaluations, she did not share her
previous psychological evaluation and denied or minimized her alcohol
use, aggression, domestic violence, and mood issues. The court gave these
evaluations no weight, and we will not reweigh that determination on
appeal. Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 282 ¶ 12 (App.
2002) (“The resolution of such conflicts in the evidence is uniquely the
province of the juvenile court as the trier of fact; we do not re-weigh the
evidence on review.”).

¶23 As to the court’s concerns about Father, Mother had not
severed her relationship with him, instead giving noncommittal answers
when asked by the psychiatrist. Nor had she participated in marriage
counseling with Father, which Mother’s evaluating psychologist stated was

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necessary or their domestic violence “will continue indefinitely.” Despite
these issues, Mother testified Father was a “changed man,” and she had no
concerns about allowing him back into the home. And despite her
significant unaddressed history of domestic violence with Father, Mother
stated she believed domestic violence was no longer a concern in her life.

¶24 Accordingly, the court’s factual findings are supported by
reasonable evidence, and its order finding M.H. a dependent child is
supported by a preponderance of the evidence.

CONCLUSION

¶25 We affirm.

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

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