A former Pima County woman who adopted two young girls in 2010 then moved out of state without them in 2019 after being accuse of neglect is entitled to a new hearing concerning custody of one of the girls, the Arizona Court of Appeals ruled Thursday.
In March 2019, the Arizona Department of Child Safety (DCS) filed a petition of dependency alleging “abuse and/neglect” by the mother, who Arizona Daily Independent is identifying by her initials, C.M. The next month C.M. moved to Florida, leaving one girl in a residential treatment center and the other with the girls’ former foster mother.
A dependency petition can be used to remove a child from the custody of a parent but does not terminate or sever parental rights. It requires an alleged cause -such as abandonment, neglect, or suspected abuse- and a determination by a superior court judge of whether the parent should retain any care and control of the child.
In the case of C.M. and her two daughters, Judge Joan Wagener of the Pima County Superior Court sided with DCS, ruling last year that both girls were dependent on the grounds of neglect. The mother challenged the two dependency rulings, one of which was upheld by the appellate court in a unanimous May 4 decision.
However, the appellate judges also ruled that Wagener “erred” in finding the younger girl dependent. The case could be sent back to Wagener as soon as mid-July if the court of appeals decision is not taken up by the Arizona Supreme Court.
According to court records, the two girls were about ages 5 and 6 when they went to live with C.M. and her mother in 2008. They were adopted by C.M. in 2010, and at the time both required behavioral health services due to pre-existing issues.
By 2014, the older of the girls was receiving treatment for violent outbursts and self-harming activities, while her sibling required help with ADD and impulse behaviors. Then in 2016, C.M. married and later gave birth to a child. The next year the girls went to live with their former foster mother after C.M. was hospitalized.
But once back in the family home, the older girl’s behavior “started to deteriorate” according to the case file. She moved in with her grandmother in October 2017 after biting her stepfather. The older girl stayed with the grandmother or the old foster mother through July 2018. Both women were given power of attorney by C.M. to make decisions for the girl’s care.
Meanwhile, the younger sister vacationed in Egypt for several months with C.M., the husband, and their biological child.
Then in November 2018, the older girl was placed in a treatment facility after at least one admission to a crisis center. This was followed in March 2019 by DCS filing the dependency petition which noted C.M.’s “failure to participate in any services or maintain a relationship” with the older girl and her unwillingness to allow the girl to live with the family.
The DCS petition also included allegations that C.M. abused or neglected the other girl “by failing to protect her from the stepfather’s verbal abuse” and failing to provide mental health services for her. The verbal abuse reportedly involved derogatory comments about the girl’s intelligence.
A month after the dependency proceedings began, C.M. moved to Florida with her husband and their child. The older girl was still in a treatment facility, while the younger sister went to live with their former foster mother.
C.M. contested the petitions, but Wagener ruled both girls were dependent on the grounds of neglect based on the preponderance of the evidence.
“There is a rift in the relationship and (C.M.) did not [take] appropriate steps to try and resolve the issues and bring the minors home,” Wagener ruled, noting C.M.’s failure to maintain parental contact with the older girl.
As to the younger sister, Wagener found DCS had not proven the stepfather’s comments amounted to emotional abuse, but still found the girl dependent by neglect for C.M.’s failure “to provide her the services she required.”
C.M. then appealed both dependency orders, arguing that the older girl was dependent because of the child’s “unmanageable behavior” and not because of neglect by the mother. She then argued that Wagener was never presented evidence showing the girl required therapy or services, and thus there can be no neglect.
It was an argument the appellate court concurred with.
“Turning to the juvenile court’s finding of neglect, we agree with (C.M.) that the record is devoid of evidence establishing that (the younger sister) needed services,” the May 4 decision states. “Accordingly, we conclude the juvenile court erred in finding (the younger sister) dependent on the basis of neglect.”
The appellate ruling takes effect in early July unless the Arizona Attorney General’s Office files a petition for review with the Arizona Supreme Court. Otherwise the ruling remains on hold until the supreme court weighs in on the case.