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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

Appeal from the Superior Court in La Paz County

No. S1500JD202200017

The Honorable Marcus A. Kelley, Judge

AFFIRMED

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

FILED 2-27-2024
IN RE DEPENDENCY AS TO A.B. AND A.B.

Decision of the Court

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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. 

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 

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 

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). We do not address the abuse finding because we affirm the 

dependency on the unfitness ground. We note, however, that 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 consistent with the 

definition of abuse set forth in A.R.S. § 8-201(2).
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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 

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. 
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CONCLUSION

¶26 We affirm the dependency ruling.