In Re Dependency as to L.D. and O.D.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.D. and O.D.

No. 1 CA-JV 26-0073
FILED 07-22-2026

Appeal from the Superior Court in Maricopa County
No. JD45272
The Honorable Michael Rassas, Judge

VACATED AND REMANDED

COUNSEL

Clark Jones, Mesa
Counsel for Appellant Father

Arizona Attorney General’s Office, Phoenix
By Anna V. Vaszar
Counsel for Appellee Department of Child Safety

Maricopa County Legal Advocate’s Office, Phoenix
By Amanda L. Adams, Phoenix
Counsel for Appellee Children

MEMORANDUM DECISION

Judge Andrew J. Becke delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Kent E. Cattani joined.
 IN RE DEPENDENCY AS TO L.D. and O.D.
Decision of the Court

B E C K E, Judge:

¶1 Rogelio Favela (“Father”) appeals the superior court’s order
adjudicating his minor children (“L.D.” and “O.D.”) dependent as to him.
For the following reasons, we vacate and remand.

FACTUAL AND PROCEDURAL HISTORY

¶2 Father is the biological father of L.D. and O.D. Since birth, the
children have lived with their maternal grandparents, who have primarily
provided for the children’s needs.

¶3 In March 2026, DCS filed a petition alleging the children are
dependent as to Father due to neglect. See A.R.S. § 8-533(B)(2), (3).
Specifically, DCS alleged: (1) Father was unwilling or unable to provide for
the children due to his unmanaged mental illness, and (2) Father has a
history of “unstable housing and failing to provide for his children’s basic
needs.” DCS also alleged Father had failed to provide DCS with an address
to verify he had a safe environment for his children.

¶4 The court held an adjudication hearing in April 2026. DCS
presented testimony that Father had previously lived in a “run-down
mobile home” in a “wrecking yard” that DCS viewed as unsafe for children.
DCS also presented evidence that Father relied on a friend for housing. But
the case manager testified that Father had secured an apartment five
months before the hearing, and four months before DCS filed the
dependency. DCS, however, would not assess Father’s housing until Father
participated in substance use and mental health treatment. The DCS case
manager added that DCS was not willing to visit the home because “we’re
not at the point of reunification.”

¶5 Father moved for a directed verdict, and the court granted his
motion as to the mental illness allegation because DCS failed to present
evidence to support that Father’s unmanaged mental illness endangered
the children’s health or welfare. The court then found that DCS had proven
by a preponderance of the evidence that the children were dependent as to
Father on the second ground alleged, that Father had a history of unstable
housing and failing to provide for the children’s basic needs. Father’s
inability or unwillingness to provide for the children’s basic needs and his
history of unstable housing caused “substantial risk of harm to the
children’s health or welfare.” The court also struck DCS’s allegation that

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Father had failed to provide DCS with his address because Father had
actually done so.

¶6 Father timely appealed and we accelerated the appeal
pursuant to Arizona Rule of Procedure for the Juvenile Court 601(d). We
have jurisdiction under Article 6, Section 9, of the Arizona Constitution and
A.R.S. §§ 8-235(A), 12-120.21(A)(1) and -2101(A)(1).

DISCUSSION

¶7 Father argues that the court did not consider his present
ability to parent and, instead, relied solely on historical circumstances. He
contends that DCS failed to present evidence of Father’s current housing
conditions, and failed to inspect his residence for its safety prior to the
adjudication hearing.

¶8 A finding of dependency requires proof by a preponderance
of the evidence. A.R.S. § 8-844(C)(1). We review orders adjudicating
children dependent for an abuse of discretion, “deferring to the [superior]
court’s ability to weigh and analyze the evidence.” Shella H. v. Dep’t of Child
Safety, 239 Ariz. 47, 50, ¶ 13 (App. 2016). “We will only disturb a
dependency adjudication if no reasonable evidence supports it.” Id.

¶9 Under A.R.S. § 8-201(15)(a), two of the ways that a child can
be found dependent is when a child is adjudicated to be:

(ii) Destitute or who is not provided with the necessities of
life, including adequate food, clothing, shelter or medical
care[, or]

(iii) A child whose home is unfit by reason of abuse, neglect,
cruelty or depravity by a parent, a guardian or any other
person having custody or care of the child.

A.R.S. § 8-201(15)(a)(ii)–(iii). Neglect is the “inability or unwillingness of a
parent” 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).

¶10 For a child to be adjudicated dependent, the parent must be
currently unable or unwilling to protect the child from neglect. Francine C.
v. Dep’t of Child Safety, 249 Ariz. 289, 299, ¶ 28 (App. 2020). Therefore, “the
[superior] court must consider the circumstances as they exist at the time of
the dependency adjudication hearing” when considering a petition for

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dependency. Shella H., 239 Ariz. at 48, ¶ 1. A parent’s prior neglect may be
evidence of that parent’s continuing inability to care for the child when: “(1)
the [prior] conditions were sufficient to declare the child dependent; (2) the
threat giving rise to those conditions remains unresolved; and (3) the threat
continues to pose an imminent risk of harm to the child.” Francine C., 249
Ariz. at 299, ¶ 28 (quoting Aaron W. v. DCS, 1 CA-JV 19-0039, 2019 WL
4695887, at *8, ¶ 37 (Ariz. App. Sept. 26, 2019) (mem. decision)). The prior
circumstances “need not be continuous or actively occurring at the time of
the adjudication hearing to support a finding of dependency” if the
underlying threat remains “substantiated and unresolved.” Shella H., 239
Ariz. at 51, ¶ 16.

¶11 The record does not support a finding that Father’s housing
instability existed at the time of the adjudication. DCS only presented
evidence of Father’s prior housing instability. It did not present evidence to
establish that Father presently lacked stable housing, his housing was
unsafe, or his prior instability remained unresolved. Although the court
considered Father’s prior housing instability as evidence of neglect, it did
not find that those conditions remained “substantiated and unresolved” at
the time of the hearing. Shella H., 239 Ariz. at 51, ¶ 16; see Francine C., 249
Ariz. at 299, ¶ 28. To the contrary, the court noted Father had obtained
housing five months before the adjudication, suggesting Father had
resolved his housing instability.

¶12 Moreover, DCS conceded that it had not inspected Father’s
housing, refusing to do so because “we’re not at the point of reunification.”
But the question was whether the children were dependent as to Father in
the first place, not whether they should be reunified with Father. Because
DCS had not inspected Father’s house, it did not establish Father’s housing
instability persisted or posed a threat to his children. Francine C., 249 Ariz.
at 299, ¶ 28.

¶13 On this record, the superior court could not determine
whether Father’s housing instability persisted or if it posed a continuing
risk to his children. See Cochise Cnty. Juv. Action No. 5666-J, 133 Ariz. 157,
161 (1982) (finding speculative harm insufficient to support that a parent is
not exercising parental care).

¶14 Because there is no reasonable evidence to support that
Father’s living situation was unstable at the time of the adjudication
hearing, we vacate the superior court’s dependency finding. See Shella H.,
239 Ariz. at 50, ¶ 13.

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CONCLUSION

¶15 We vacate the superior court’s dependency order and remand
for proceedings consistent with this decision.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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