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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MARK O., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, A.O., Appellees.

No. 1 CA-JV 19-0417

Appeal from the Superior Court in Maricopa County

No. JD33436

The Honorable Lori Ash, Judge Pro Tempore

AFFIRMED

COUNSEL

Robert D. Rosanelli, Attorney at Law, Phoenix

By Robert D. Rosanelli

Counsel for Appellant

Arizona Attorney General’s Office, Phoenix

By Doriane F. Neaverth

Counsel for Appellee

FILED 8-25-2020
MARK O. v. DCS, A.O.

Decision of the Court

2

MEMORANDUM DECISION

Chief Judge Peter B. Swann delivered the decision of the court, in which 

Presiding Judge Samuel A. Thumma and Judge Randall M. Howe joined.

S W A N N, Chief Judge:

¶1 Mark O. (“Father”) appeals the superior court’s order finding 

his son, A.O., dependent. He argues the evidence was insufficient to 

establish that A.O. was dependent on the grounds of abuse and neglect. We 

affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Father is the adoptive parent of C.O., born in December 1999, 

and A.O., born in June 2002. In June 2019, A.O. left early in the morning to 

attend a basketball tournament. When he returned, he discovered that 

Father had locked him out of the house and refused to let him back inside.

¶3 Father called the police, and once officers arrived, Father 

stated that A.O. “was out of control” and wanted police to take him away 

from the home. Father explained that he and A.O. had gotten into a verbal 

altercation two days earlier but failed to provide police with concrete 

details about the fight. Once the officer indicated that he was unable to 

remove A.O. from the property without allegations of a crime, Father began 

to allege that A.O. threatened to kill him during the argument and that he 

was now fearful for his life.

¶4 A.O., who had been at the basketball tournament all day, 

denied threatening Father and told officers that Father had been attempting 

to remove him from the house for some time. The officer later testified that 

although he did not believe Father’s accusations, he still called the 

Department of Child Safety (“DCS”) to take custody of A.O.

¶5 DCS then filed a dependency petition as to A.O.,1 alleging 

abuse and neglect. The court held a contested dependency adjudication 

hearing, in which Father, the police officer, A.O., and C.O. testified. Both 

1 Although C.O. was also adjudicated dependent, the superior court 

dismissed the dependency when he turned 18. C.O. is not subject to this 

appeal.
MARK O. v. DCS, A.O.

Decision of the Court

3

C.O. and A.O. testified that Father had previously physically abused them. 

C.O. recounted that in 2016, Father choked A.O. When C.O. called the 

police, Father requested that C.O. be taken to the hospital for a psychiatric 

evaluation. After Father refused to pick C.O. up from the hospital, DCS 

became involved and C.O. was removed from the home. C.O. also testified 

that Father regularly punched and choked him.

¶6 A.O. testified that Father had previously choked, shoved, and 

hit him and that he witnessed Father punch C.O. numerous times. He 

further testified that Father locked the refrigerator while he was living with 

his ex-wife. Once Father’s ex-wife moved out of the house, the lock was 

temporarily removed, but it was put back onto the refrigerator in May 2019 

when communication between A.O. and Father dissipated.

¶7 Father denied the allegations of physical abuse and that the 

refrigerator remained locked. Despite Father’s denials, the superior court 

found A.O. dependent. The court took judicial notice that DCS had 

previously taken custody of C.O. in 2016 based on allegations from Father 

that C.O. “had ‘out of control’ behaviors, was physically aggressive, and 

‘may’ have had substance abuse issues.” The court also noted that Father’s 

concerns about C.O. mimicked Father’s concerns about A.O. three years 

later.

¶8 Father appeals.

DISCUSSION

¶9 Father contends that the superior court’s adjudication of A.O.

as dependent was clearly erroneous and contrary to substantial evidence in 

the record.

¶10 Because the superior court “is in the best position to weigh 

the evidence, observe the parties, judge the credibility of witnesses, and 

resolve disputed facts,” Ariz. Dep’t of Econ. Sec. v. Oscar O., 209 Ariz. 332, 

334, ¶ 4 (App. 2004), we review an order adjudicating a child dependent for 

an abuse of discretion, Louis C. v. Dep’t of Child Safety, 237 Ariz. 484, 488,

¶ 12 (App. 2015). The superior court is required to find a child dependent 

by a preponderance of the evidence and “must consider the circumstances 

as they exist at the time of the dependency adjudication hearing in 

determining whether a child is a dependent child.” Shella H. v. Dep’t of Child 

Safety, 239 Ariz. 47, 48, ¶ 1 (App. 2016); Louis C., 237 Ariz. at 490, ¶ 23.

¶11 A dependent child is adjudicated to be “[i]n need of proper 

and effective parental care and control and who has no parent . . . willing 
MARK O. v. DCS, A.O.

Decision of the Court

4

to exercise or capable of exercising such care and control” or “whose home 

is unfit by reason of abuse [or] neglect.” A.R.S. § 8-201(15)(a)(i), (iii). Abuse 

is defined as “the infliction or allowing of physical injury” whereas neglect 

is defined as “[t]he inability or unwillingness of a parent . . . to provide . . . 

supervision, food, clothing, shelter or medical care if that inability or 

unwillingness causes unreasonable risk of harm to the child’s health or 

welfare.” A.R.S. § 8-201(2), (25)(a).

¶12 Father argues that his conduct in June 2019 did not rise to the 

level of child abuse or neglect because he did not use force against the 

minor, and A.O. received appropriate care once in DCS custody. Father 

further contends that no evidence showed “physical injury, impairment of 

bodily function or disfigurement.” Specifically, he argues that “[t]here was 

no testimony of redness, bruising, or pain associated with the alleged 

physical conduct.” But C.O. testified that when Father punched him in the 

face, it would occasionally leave marks. And a court may rely on 

circumstantial evidence to infer the infliction of physical injury. See Jesus 

M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 282, ¶ 13 (App. 2002). Here,

both A.O. and C.O. testified that Father hit, choked, and punched them on 

numerous occasions. The superior court found this testimony to be 

credible, and we will not reweigh the superior court’s credibility 

determinations. See id. at ¶ 12.

¶13 Father next contends that he was justified in denying A.O. 

access to the house after A.O. threatened to kill him. Because Father failed 

to present this argument to the superior court, he has waived it on appeal. 

See Christy C. v. Ariz. Dep’t of Econ. Sec., 214 Ariz. 445, 452, ¶ 21 (App. 2007).

¶14 In any event, sufficient evidence proved abuse and neglect 

outside of the June 2019 incident. Although the superior court must 

consider the circumstances existing at the time of the dependency hearing, 

Shella H., 239 Ariz. at 48, ¶ 1, “we will not hesitate to affirm a finding of 

dependency as to parents who presently deny that they are responsible for 

past abuse and neglect,” Pima Cty. Juv. Dependency Action No. 96290, 162 

Ariz. 601, 604 (App. 1990). Here, even though Father denied abusing the 

children and alleged that he only locked A.O. out of the house because he 

feared for his life, both A.O. and C.O. testified to numerous other instances 

of physical abuse. Accordingly, the record supports the superior court’s 

conclusion that A.O. was dependent as to Father.
MARK O. v. DCS, A.O.

Decision of the Court

5

CONCLUSION

¶15 We affirm the order adjudicating A.O. a dependent child.