In Re Dependency as to A.B. and A.B.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

No. 1 CA-JV 23-0163
FILED 4-9-2024

Appeal from the Superior Court in La Paz County
No. S1500JD202200017
The Honorable Marcus A. Kelley, Judge

AFFIRMED IN PART; VACATED IN PART

COUNSEL

Carr Law Office, PLLC, Kingman
By Sandra Carr
Counsel for Appellant

Arizona Attorney General’s Office, Tucson
By Dawn R. Williams
Counsel for Appellee
 IN RE DEPENDENCY AS TO A.B. AND A.B.
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MEMORANDUM DECISION

Judge Jennifer B. Campbell delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Michael J. Brown joined.

C A M P B E L L, Judge:

¶1 Father appeals from a dependency ruling premised on
findings of abuse and parental unfitness related to his children’s mental
health issues and care. See A.R.S. § 8-201(15)(a)(i)(iii). For the reasons below,
we affirm the dependency but vacate the abuse finding.

BACKGROUND

¶2 Amber and Aubrey1 were born in 2008 and 2014, respectively,
to a substance-abusing and reportedly mentally ill mother. Father and
Mother (collectively, the Parents)2 adopted the girls as young children and
began raising them in Montana.

¶3 In 2018, when Amber was nine years old, the Parents enrolled
her in counseling for escalating behavioral issues and, suspecting
hereditary schizophrenia, they had her participate in a
neurodevelopmental assessment. Amber was diagnosed with reactive
attachment disorder, generalized anxiety disorder, persistent depressive
disorder, and attention deficit hyperactivity disorder. The psychologist
recommended that the Parents continue to provide counseling, implement
specified positive parenting strategies, and share the evaluation with
Amber’s educators.

¶4 In 2020, the Parents lost their house in Montana and moved
the family to a trailer in rural Arizona. They kept the children out of school
for a year because of the COVID-19 pandemic. When the children began
attending school in Fall 2021, Amber had many disciplinary problems.
Among other things, she falsely accused other students of planning to bring
a gun to school and of bullying. In a series of meetings with school
administrators, the Parents provided a partial report from Amber’s 2018
assessment (which they never supplemented despite knowing it was

1 We use pseudonyms for the minors and witnesses.
2 Mother is not a party to this appeal.

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incomplete) and they stated that they were trying to find her a counselor.
The Parents also tried to get Amber an individualized education plan, but
she did not qualify. Ultimately, on the school’s referral, Amber began
attending in-school counseling in December 2021.

¶5 In February 2022, the Department of Child Safety investigated
a report of Mother physically abusing Amber. Around the same time,
Amber began impersonating Father online, sending untruthful messages to
a teacher and asking the teacher to adopt her. When the school discovered
this, Amber was placed on long-term suspension through the end of the
semester. The superintendent recommended she receive a full
psychological evaluation and more intensive therapy before the start of the
next school year.

¶6 In July 2022, the Parents had both Amber and Aubrey
participate in psychiatric assessments at a walk-in clinic. The Parents told
the psychiatrist about Amber’s lying and described Aubrey as oppositional
and hyperactive, with a problematic habit of putting non-food items in her
mouth. The psychiatrist suggested that Aubrey might benefit from a trial of
medication for hyperactivity, and the Parents said that they would discuss
the idea. The Parents continued to facilitate counseling for both children at
the walk-in clinic, and when school started, Amber resumed and Aubrey
began in-school counseling as well.

¶7 In August 2022, the Department learned that Amber had
asked a friend’s family to let her live with them because she was being
abused and neglected at home. The next month, Amber made additional
accusations of physical abuse by Mother.

¶8 The Parents spoke with a Department investigator and told
her about Amber’s history of lying and behavioral problems; Mother stated
that if Amber’s behaviors continued, she would want to send her to a
psychiatric facility or group home. The Parents also reported that Aubrey
was starting to follow Amber’s behaviors and suffered from meltdowns
and an inability to sit still. The Parents threatened the children that they
would go to foster care if their behaviors did not stop.

¶9 In November 2022, Amber told a friend that she was going to
run away from home. A few days later, Mother called the Department
investigator to report that she could no longer handle Amber’s escalating
misbehaviors and that she was looking into having Amber stay with
Mother’s adult daughter, Kayla.

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¶10 The next day, the Parents took Amber and Aubrey to
appointments at the walk-in clinic. At Aubrey’s appointment, Father told
the psychiatrist that she was still oppositional and hyperactive, and he and
Mother said they could not handle her. The psychiatrist prescribed
medication for oppositional defiant disorder. Amber then had her
appointment, during which she accused Father of sexually abusing both her
and Aubrey. Law enforcement immediately responded to the clinic, and the
children were placed in Kayla’s care under a present danger plan. Later,
both children were removed from Kayla’s home in short order (Amber in
December 2022 and Aubrey in February 2023) because Kayla could not
manage their behaviors: Amber was lying and had gone downtown
without permission, and Aubrey was hyperactive, incontinent, unhygienic,
and would act out after virtual visits with Mother.

¶11 In forensic interviews, the children described sexual abuse by
Father and physical abuse by Mother. Mother largely denied the allegations
but admitted that she disciplined the children by making them stand in a
corner for up to 15 minutes (sometimes restarting Aubrey’s time when she
would not stay put), and by spanking them with a flyswatter as a last resort.
Mother also admitted that she once tried to put soap in Amber’s mouth as
punishment.

¶12 In December 2022, the Department filed a dependency
petition regarding both children based on Father’s alleged sexual abuse
(which was also criminally charged) and Mother’s failure to protect the
children from that abuse. See A.R.S. § 8-201(15)(a)(iii). The Parents entered
a denial, and the matter proceeded to a four-day dependency trial in the
juvenile court starting in April and ending in June 2023.

¶13 Near the end of the third day of trial, at Father’s prompting,
the Department moved to amend the petition to add new dependency
theories related to the Parents’ management of the children’s mental health
issues. The court granted that motion. The Department then filed an
amended petition alleging that the Parents’ home was “unfit by reason of
abuse or failure to protect from abuse, medical/mental health,” see A.R.S.
§ 8-201(15)(a)(iii), and that the Parents were “unwilling or unable to
provide proper and effective parental control due to the child’s behaviors,”
see A.R.S. § 8-201(15)(a)(i).

¶14 In closing argument, both Father and Mother conceded that
Amber was dependent because her severe mental health issues rendered
them unable to provide effective parental care. Father argued, however,

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that the Parents had tried to help both children and that declining to
medicate Aubrey was actually commendable.

¶15 The court found insufficient evidence of sexual abuse but
found both children dependent on the grounds added by the amendment.
Father appealed.

DISCUSSION

I. Jurisdiction

¶16 Father first argues that, as to Aubrey, the dependency order
is void for lack of jurisdiction because the court relied on allegations that
made no reference to her.

¶17 We review jurisdictional questions de novo. David S. v. Audilio
S., 201 Ariz. 134, 136, ¶ 4 (App. 2001). The court’s jurisdiction in a
dependency matter is invoked at the outset of the case, id. at ¶ 7, by a
petition that states the essential facts to show a minor’s dependency, In re
Pima Cnty. Juv. Dependency Act. No. 97247, 158 Ariz. 55, 57 (App. 1988). Here,
the Department’s initial petition alleged that both children were dependent
under A.R.S. § 8-201(15)(a)(iii) based on abuse or failure to protect from
abuse. That conferred jurisdiction.

¶18 The petition was then properly amended to conform to the
evidence at trial to add allegations of dependency based on the children’s
mental health issues and care under A.R.S. § 8-201(15)(a)(i) and (iii). See
Ariz. R.P. Juv. Ct. 338(g) (providing that dependency petitions may be
amended to conform to the evidence “during or after the presentation of
evidence pursuant to Civil Rule 15(b)”). Leave to amend to conform to the
evidence should be liberally granted absent prejudice, Bujanda v.
Montgomery Ward & Co., 125 Ariz. 314, 316 (App. 1980), such as the
deprivation of an opportunity to factually challenge a new dependency
theory, see Carolina H. v. Ariz. Dep’t of Econ. Sec., 232 Ariz. 569, 572, ¶ 12
(App. 2013). When the nonmovant expressly or impliedly consents to
amendment, the movant is entitled to amendment as a matter of right.
Bujanda, 125 Ariz. at 315–16.

¶19 Here, it was Father himself who asked that the petition be
amended to allege that the Parents were unable to manage the children, and
he made no showing of prejudice regarding the specific amendments made.
Though the new allegations mentioned only Amber by name, they were
made beneath an umbrella allegation of “abuse and/or neglect” of both
children. Additionally, the trial transcript confirms that all of the parties

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knew that the new allegations would apply to, as Father repeatedly put it,
“the kids.” And at the close of evidence, all of the parties presented
argument addressing all of the alleged dependency grounds with respect
to both children.

¶20 For these reasons, the juvenile court did not err by assessing
Aubrey’s as well as Amber’s dependency under all three grounds alleged
in the amended petition.

II. Dependency Grounds

¶21 Father next contends that the court’s dependency
determinations were unsupported by the evidence and the court’s findings.
Dependency must be established by a preponderance of the evidence.
A.R.S. § 8-844(C)(1). The juvenile court has considerable discretion in
dependency matters because the primary consideration is the child’s best
interests. Willie G. v. Ariz. Dep’t of Econ. Sec., 211 Ariz. 231, 235, ¶ 21 (App.
2005). We review a dependency ruling for abuse of discretion, accepting the
juvenile court’s findings of fact unless clearly erroneous and affirming the
ruling unless it is supported by no reasonable evidence. Joelle M. v. Dep’t of
Child Safety, 245 Ariz. 525, 527, ¶ 9 (App. 2018).

¶22 On this record, we confine our review to the written finding
that Father was unwilling or unable to provide proper and effective
parental care and control because of the children’s behaviors.3 A child is

3 We do not assume that the court found neglect as a ground for
dependency because though the court referenced “negligen[ce]” in its oral
findings about unfitness, its written findings were confined to abuse. See
A.R.S. § 8-844(C)(1)(a)(ii) (requiring findings on dependency’s factual
bases); Ariz. R.P. Juv. Ct. 338(h) (requiring findings to be set forth in signed
minute entry or order); see also Francine C. v. Dep’t of Child Safety, 249 Ariz.
289, 295–97, ¶¶ 12–14, 17 (App. 2020) (describing purpose of written
findings requirement and prohibiting reliance on oral findings absent
waiver). As to the abuse finding, after we issued our initial memorandum
decision, Father filed a motion seeking clarification that the evidence was
not sufficient to support the finding that he abused his children. DCS’s
response to that motion (filed pursuant to our order) expressed procedural
concerns about Father’s motion but offered no substantive opposition to the
relief requested. There was no evidence that the Parents’ management of
either child’s mental health needs led the children to experience physical
injury, bodily impairment, disfigurement, or diagnosed emotional damage

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dependent if she is “[i]n need of proper and effective parental care and
control and . . . has no parent or guardian willing to exercise or capable of
exercising such care and control.” A.R.S. § 8-201(15)(a)(i). Father conceded
that he was unable to properly care for Amber due to her mental health
issues, but he argues that the same is not true about Aubrey because her
issues are less severe.

¶23 To be sure, Aubrey’s problem behaviors have not been as
extreme as Amber’s. But her mental health challenges are not insignificant.
The Parents reported that Aubrey had myriad behavioral issues, and she
was prescribed medication as a result. Though the Parents’ decision to
decline medication in favor of counseling was not inherently unreasonable,
they failed to escalate Aubrey’s care after months of counseling proved
ineffective. And evidence showed that Aubrey needed some form of
different or additional intervention—her behaviors were so serious that the
Parents threatened her with foster care, Father reported being unable to
handle her, and Kayla requested her removal only months after taking her
in.

¶24 Further, the court could examine the Parents’ ability to parent
Aubrey given the care they provided to Amber, another mentally ill child
whose behaviors they claimed Aubrey was starting to follow. See In re Pima
Cnty. Juv. Act. No. 96290, 162 Ariz. 601, 604–05 (App. 1990) (explaining that
state may proactively protect children where home conditions created
dependency as to other children). Evidence showed that the Parents failed
to meet Amber’s mental health needs. Though the Parents attempted to
provide Amber mental health care, those efforts were not robust, and they
did not seek additional services as her condition deteriorated. Evidence
showed (contrary to Mother’s contention) that as early as 2018, the Parents
knew that Amber had serious mental disorders and had been provided
recommendations for her care. But they failed to follow those
recommendations. Specifically, they gave incomplete information to
Amber’s school, and they provided her no counseling in Arizona until the
school offered it. Further, the Parents did not seek private counseling until
the Department became involved and the school recommended further
interventions. They also resorted to disciplining both children with
spankings, prolonged time-outs, and threats of being placed in foster care
despite a mental health professional advocating the use of positive

consistent with the definition of abuse set forth in A.R.S. § 8-201(2). Thus,
we vacate the superior court’s finding that Father abused the children. In
doing so, however, we note that the dependency finding remains in place
as indicated in this decision.

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parenting strategies. On this record, it is reasonable to conclude that
Father’s failure to appropriately manage Amber’s mental health needs
meant that he was unwilling or unable to meet Aubrey’s needs as well.

¶25 Given all the foregoing, Father has not shown that the juvenile
court abused its discretion by finding Aubrey dependent as to him based
on unwillingness or inability to provide proper and effective parental care
and control.

CONCLUSION

¶26 We affirm the dependency ruling except as to the abuse
finding, which we vacate.

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

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