Jamelle A. v. Dcs, M.A.
1 CA-JV 20-0411
Ariz. Ct. App.May 20, 2021Background:
- M.A. (b. Jan 2016) lived primarily with Father after he gained sole custody when M.A. was 8 months old.
- Father was incarcerated in 2018; relatives were guardians until his release in Mar 2020; DCS was ordered to investigate Father’s ability to care for M.A.
- DCS filed a dependency petition alleging neglect based on domestic violence, substance abuse, and unstable housing; DCS relied on missed/positive THC tests, lack of a marijuana safety plan, and reported anger/parenting incidents during supervised visits.
- Service providers reported incidents (yelling, disregarding child’s distress) and the Tribe’s ICWA expert opined return would be unsafe without additional services; Father had completed some services but not all and had not released counseling records to DCS.
- At adjudication the court found Father unable or unwilling to provide proper and effective parental control due to marijuana use, anger-control and parenting skill deficiencies, amended the petition to conform to the evidence, and granted a conditional Rule 59 return order (requiring a reunification referral, a marijuana safety plan, and a home inspection).
- Father appealed; the Court of Appeals affirmed the dependency adjudication.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for dependency | No evidence supported dependency; concerns were not proof and Father could safely parent | Evidence (THC positives, no safety plan, anger incidents, deficient parenting) supported finding Father unable/unwilling to provide proper and effective control | Affirmed — reasonable evidence supported dependency based on marijuana use, anger control, and parenting deficits |
| Amendment of petition to conform to evidence | Court improperly amended petition to adjudicate on unpled grounds and should have dismissed | Father failed to object at trial; evidence related to allegations (aggression, marijuana use); Rule 15(b)/55(D)(3) allow conforming amendments when no prejudice | Affirmed — no abuse of discretion; amendment permissible and Father not prejudiced |
| Effect of Rule 59 return order on dependency finding | Return order shows insufficient proof of dependency | Return with protective conditions does not negate that dependency is based on circumstances at adjudication; return was conditioned on services and safety measures | Affirmed — granting return under conditions does not undermine dependency finding |
Key Cases Cited
- Pima Cnty. Dependency Action No. 93511, 154 Ariz. 543 (App. 1987) (standard of review for dependency adjudication)
- Willie G. v. Ariz. Dep’t of Econ. Sec., 211 Ariz. 231 (App. 2005) (view evidence favorably to sustain dependency; reversal only if no reasonable evidence)
- Michael M. v. Ariz. Dep’t of Econ. Sec., 217 Ariz. 230 (App. 2007) (best interests of the child govern dependency proceedings)
- Shella H. v. Dep’t of Child Safety, 239 Ariz. 47 (App. 2016) (dependency must be determined from circumstances at time of adjudication)
- Carolina H. v. Ariz. Dep’t of Econ. Sec., 232 Ariz. 569 (App. 2013) (reversal where dependency was based solely on unraised, unrelated theory causing prejudice)
- Francine C. v. Dep’t of Child Safety, 249 Ariz. 289 (App. 2020) (need for specific factual findings supporting dependency)
- Maricopa Cnty. Juv. Action No. JS-501904, 180 Ariz. 348 (App. 1994) (amendment of pleadings: notice and prejudice are critical)
- Starkovich v. Noye, 111 Ariz. 347 (1974) (variance between pleading and proof waiver where no specific objection raised)