In Re Dependency as to L.C.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

No. 1 CA-JV 23-0136
FILED 1-30-2024

Appeal from the Superior Court in Maricopa County
No. JD527043
The Honorable Ashley V. Halvorson, Judge

AFFIRMED

COUNSEL

Denise L. Carroll, Esq., Scottsdale
By Denise L. Carroll
Counsel for Appellant

Arizona Attorney General’s Office, Tucson
By Jennifer L. Thorson
Counsel for Appellee Department of Child Safety

Maricopa County Office of the Legal Advocate, Phoenix
By Amanda L. Adams
Counsel for Appellee L.C.
 IN RE DEPENDENCY AS TO L.C.
Decision of the Court

MEMORANDUM DECISION

Judge Cynthia J. Bailey delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Maria Elena Cruz joined.

B A I L E Y, Judge:

¶1 Lorenzo W. (“Father”) appeals the superior court’s order
finding his child (“L.C.”) dependent as to him based on his inability to
parent L.C. due to domestic violence. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY1

¶2 Father and Margareth Chavez Barillas (“Mother”)2 are the
biological parents of L.C., born in May 2017. Mother and Father married in
2017, and after a brief marriage punctuated by “significant” domestic
violence by Father against Mother and in L.C.’s presence3—and an order of
protection filed by Mother against Father—separated in October 2018, and
divorced in March 2021.

¶3 The family court orders established Mother as L.C.’s primary
custodial parent, with sole legal decision-making authority, and awarded
Father unsupervised parenting time every other weekend. Mother moved
with L.C. to Florida after the divorce but later moved back to Arizona.

¶4 In late February 2023, the Department of Child Safety (“DCS”)
received a report that Mother was neglecting L.C. A DCS investigator
suggested a safety plan to protect L.C., but Mother refused to sign it, stated
she wanted to go back to Florida, and she wanted DCS to take custody of
L.C. Mother also reported that Father was not involved in L.C.’s life. DCS

1 We view the evidence presented at the dependency hearing in the light

most favorable to sustaining the superior court’s findings. Willie G. v. Ariz.
Dep’t of Econ. Sec., 211 Ariz. 231, 235, ¶ 21 (App. 2005).

2 Mother is not a party to this appeal.

3 In 2018, Father was convicted of domestic violence against Mother and

served three months in jail.

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Decision of the Court

took temporary custody of L.C. and, pursuant to the court order, placed
him in the physical custody of maternal relatives.

¶5 DCS filed a dependency petition, alleging in part that L.C.
was dependent as to Father:

[Father] is unable to parent due to neglect and abandonment.
[Father] has failed to provide for the child’s basic necessities,
such as supervision, food, clothing, shelter, and/or medical
care, which has placed the child at a substantial risk of harm.
[Father] has not maintained a normal parent-child
relationship with the child for an extended period of time.
[Father’s] whereabouts are unknown. Mother reported that
[Father] has no contact with [L.C.]. She reported that he may
be living in Chicago. Mother has a history of domestic
violence with [Father].

¶6 Father was still living in Arizona—with his girlfriend and
their seven-year-old daughter—and after L.C. was removed from Mother’s
care, Father contacted a DCS investigator. At the time, he was on probation
for aggravated assault. He did not initially disclose his probationary status
to DCS, however, or that he had been arrested in October 2022 for domestic
violence assault against his girlfriend, who had obtained an order of
protection against him.

¶7 In April 2023, Father appeared with counsel at the continued
initial dependency hearing and denied the petition’s allegations. Because
several of Father’s assault arrests had allegedly involved alcohol, DCS
offered Father substance abuse testing and treatment through PSI and
Terros, respectively. DCS also offered services through Family Connections
and supervised visitation, and it requested that Father self-refer for
individual counseling with a domestic violence component.

¶8 The next day, DCS filed its initial disclosure statement
notifying Father that it intended to introduce his criminal records into
evidence at the contested hearing—records that outlined his history of
domestic violence and aggravated assault against several victims, including
Mother—and that it intended to request that the superior court “take
judicial notice of any order, plea agreement, judgment of guilt and
sentencing” filed in superior court.

¶9 The superior court held the contested dependency hearing in
May and June 2023. Initially, Father’s attorney noted the alleged victim’s
name had been redacted from Exhibit 4—the October 2022 police report

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detailing Father’s alleged assault of his girlfriend—and she objected to the
exhibit’s admission on “relevance and foundation” grounds. Counsel for
DCS argued that “Father should know who his victim was in that particular
matter” and the evidence was a certified business record that was relevant
to Father’s history and pattern of domestic violence. The court overruled
the objection and admitted the exhibit.4 Father’s attorney did not object to
the admission of Father’s 2021 divorce decree or of his 2020 and 2021
criminal records, which outlined a history of arrests and convictions for
aggravated assault against multiple victims.

¶10 The issue of Father’s domestic violence—and the safety
concerns that violence generated—was raised throughout the hearing, and
Father’s attorney actively defended against those allegations. A DCS
caseworker testified that Father’s divorce decree and criminal records
showed “a pattern of engaging in violent behaviors,” and this continuing
“pattern” of assaults and domestic violence, coupled with Father’s lack of
transparency regarding his criminal history and probation status, posed a
safety risk to L.C. He testified that Father needed to complete domestic
violence classes or counseling before DCS could place L.C. in his care. He
also acknowledged that DCS had not yet referred Father for domestic
violence services and would need to coordinate those services with Father’s
probation officer if possible.

¶11 Father testified that before DCS’s involvement, he had not
seen L.C. for approximately three years and had taken no legal action to
enforce his parenting time in family court. He also testified he was on
probation and had completed fifty-two hours of anger-management
classes—at some unspecified time—as part of that probation. When
counsel for DCS asked on cross-examination whether Father had ever been
arrested, his attorney objected on relevancy grounds and argued, “The
allegation against [Father] is abandonment.” L.C.’s counsel argued that
Father’s counsel had “opened the door when she asked about probation,”
and counsel for DCS argued that Father’s criminal history was relevant
because “the allegations do also note concerns of domestic violence.” The

4 Exhibit 4 indicated Father was arrested for domestic violence assault in

October 2022 after allegedly hitting his girlfriend during an argument,
causing swelling and “visible redness to the right side of her face around
her ear and eyebrow area.” The couple’s then-six-year-old daughter was
home during the incident, and Father had allegedly threatened to hit her a
few days earlier. At the time of his arrest, Father was serving a three-year
supervised probation term for assaulting a corrections officer in 2021, his
third known felony conviction.

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court overruled Father’s objection, and Father admitted he was currently
on probation for “domestic [violence] and assault.” He also admitted he
was arrested for domestic violence in October 2022—just four months
before L.C. came into DCS’s care.

¶12 At the close of evidence, counsel for DCS moved to “conform
the pleadings to the evidence just to add additional documentation about
the domestic violence” and argued that although the petition alleged
domestic violence between Mother and Father, “there is substantial
evidence that was pre[s]ented that should be included.” When questioned
by the court, counsel confirmed that her motion was to amend the petition
to include domestic violence as a separate allegation.

¶13 Meanwhile, Father’s attorney moved for a directed verdict,
arguing the petition alleged only “neglect and abandonment” as a basis for
the dependency, and although it did allege a history of domestic violence
between Mother and Father, there was no present safety risk to L.C. because
no “active” domestic violence existed between Mother and Father.

¶14 The superior court granted DCS’s motion to amend and
denied Father’s directed verdict motion. After taking the dependency
matter under advisement, the court rejected DCS’s abandonment allegation
but adjudicated L.C. dependent as to Father. The court found that Father’s
unresolved domestic violence issues posed an ongoing “safety threat” to
L.C. and that although Father claimed to have completed an anger
management program through probation, he presented no documentation
supporting the claim or to what extent the program addressed domestic
violence. The court concluded that Father “does not fully appreciate the
safety threat of domestic violence.”5

¶15 We have jurisdiction over Father’s timely appeal. See Ariz.
Rev. Stat. (“A.R.S.”) §§ 8-235(A), 12-120.21(A)(1), and 12-2101(A)(1).

DISCUSSION

¶16 Father argues the superior court abused its discretion by
granting DCS’s motion to amend the dependency petition to conform to the
evidence at the end of the trial. He claims he lacked notice of and was

5 The court also noted that concerns over Father’s alcohol abuse as a trigger

for his altercations were unresolved because Father had failed to submit to
testing.

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denied the opportunity to defend meaningfully against, the domestic
violence allegation and was therefore denied a fair trial.

¶17 The primary consideration in any dependency action is the
child’s best interests. Willie G., 211 Ariz. at 235, ¶ 21. We will not disturb
the superior court’s decision regarding leave to amend a pleading absent
an abuse of discretion. Maricopa Cnty. Juv. Action No. JS-501904, 180 Ariz.
348, 355 (App. 1994).

¶18 A parent’s fundamental liberty interest to parent their
children “may not be changed without due process and compliance with
the statutes involved.” Id. (quoting Maricopa Cnty. Juv. Action No. JS-734, 25
Ariz. App. 333, 338 (1975)). Before a child can be adjudicated dependent,
the State must allege and prove by a preponderance of the evidence one of
the grounds found in A.R.S. § 8-201(15)(a), which may include that a child
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 “[a] child whose home is unfit by reason of . . . neglect . . . by a
parent . . . .” A.R.S. § 8-201(15)(a)(i), (iii).

¶19 “Due process requires ‘notice reasonably calculated, under all
the circumstances, to apprise interested parties of the pendency of the
action and to afford them an opportunity to present their objections.’” JS-
501904, 180 Ariz. at 355 (quoting JS-734, 25 Ariz. App. at 339 (citation
omitted)). To this end, a dependency petition must include “[a] concise
statement of the facts to support the conclusion that the child is dependent.”
A.R.S. § 8-841(C)(3). However, “[a]n amendment to conform to the
evidence may be made during or after the presentation of evidence
pursuant to Civil Rule 15(b).” Ariz. R.P. Juv. Ct. 338(g). Rule 15(b)(1), Ariz.
R. Civ. P., authorizes the superior court to “freely permit an amendment
when doing so will aid in presenting the merits and the objecting party fails
to satisfy the court that the evidence would unfairly prejudice that party’s
claim or defense on the merits.” Although a court should freely grant leave
to amend when justice requires, “notice and substantial prejudice to the
opposing party are critical factors in determining whether an amendment
should be granted.” JS-501904, 180 Ariz. at 355 (quoting Owen v. Superior
Court, 133 Ariz. 75, 79 (1982)).

¶20 Even assuming without deciding that Father did not waive
his argument, see Kimu P. v. Ariz. Dep’t of Econ. Sec., 218 Ariz. 39, 44, ¶ 19
n.3 (App. 2008), as DCS argues, we find no abuse of the superior court’s
discretion. The dependency petition alleged, among other things, that
Father had a history of domestic violence with Mother. And before trial,

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Decision of the Court

DCS notified Father through its initial disclosure statement that it intended
to introduce his criminal records—which outlined his history of domestic
violence and aggravated assault against several victims—into evidence at
the hearing. Father thus had notice from the petition and the exhibits that
DCS was seeking to establish L.C. as a dependent child based, in part, on
Father’s domestic violence issues.

¶21 And Father was provided the opportunity to defend against
DCS’s domestic violence allegation at trial, and he did so. At the outset of
the hearing, although Father’s attorney did not object to the admission of
Father’s 2021 divorce decree or his 2020 and 2021 criminal records, she
objected to the October 2022 police report on relevancy and foundation
grounds. However, the superior court admitted the evidence over Father’s
objection after counsel for DCS countered that such evidence was relevant
because DCS had alleged domestic violence in the dependency petition.
Father’s attorney also elicited testimony from Father claiming he was
currently willing and able to parent L.C. because he was no longer in an
abusive relationship with Mother and had completed anger management
classes. Father’s attorney also moved for a directed verdict, arguing that
although DCS’s petition alleged a history of domestic violence between
Mother and Father, DCS had failed to establish “current circumstances of
active domestic violence” between them. Given this record, Father was not
surprised or substantially prejudiced by the amendment.

¶22 Because Father had adequate notice of, and the opportunity
to defend against, the domestic violence allegation at trial, he does not show
that he was prejudiced and the superior court did not abuse its discretion
by granting DCS’s motion to amend the dependency petition to conform to
the evidence.

CONCLUSION

¶23 We affirm the superior court’s order adjudicating L.C.
dependent as to Father.

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

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