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Joelle M. v. Department of Child Safety

Court of Appeals of Arizona, First Division

November 6, 2018

JOELLE M., Appellant,

          Appeal from the Superior Court in Mohave County No. S8015JD201700080 The Honorable Douglas Camacho, Judge Pro Tempore

          The Stavris Law Firm PLLC, Phoenix By Alison Stavris Counsel for Appellant

          Arizona Attorney General's Office, Mesa By Lauren J. Lowe Counsel for Appellee Department of Child Safety

          Mohave County Attorney's Office, Kingman By Bobbie Shin Counsel for Appellee L.M.

          Judge David D. Weinzweig delivered the decision of the Court, in which Presiding Judge Kenton D. Jones and Judge Peter B. Swann joined.



         ¶1 Joelle M. ("Mother") appeals from the superior court's order finding her daughter, L.M., dependent based upon medical neglect. Mother's argument against the finding of neglect fails to account for L.M.'s unique needs. We hold the superior court must consider a child's unique needs in a dependency action to protect the child's best interest and meaningfully assess the parent's willingness and ability to supply proper and effective parental care and control. Because the record supports the dependency finding, we affirm.


         ¶2 This is a child dependency action. Mother and Lucas M. ("Father") are the biological parents of L.M., who was born healthy in Nevada in 2011. At two months old, L.M. was rushed to the hospital with life-threatening brain injuries. Father was later convicted in Nevada of abusing his daughter and sentenced to prison.[1] L.M. suffered severe and irreversible brain damage. She now endures dozens of chronic and debilitating disorders, including encephalopathy, spastic quadriplegic cerebral palsy and epilepsy. She requires a wheel chair and is legally blind; cannot feed herself or communicate, except for a few nonverbal cues; bears a perpetual high risk for seizures, vomiting, choking and aspiration; and gains nourishment from a continuous 24-hour feed delivered from a battery-powered feeding machine. L.M. needs full-time care and attention for her very survival.

         ¶3 Mother and L.M. later moved to Arizona. The Arizona Department of Child Safety ("DCS") first learned about L.M. in July 2017, when she was a part-time student in a special education program for "[m]edically fragile children." The school year had just begun and DCS received anonymous complaints to its hotline that Mother had neglected to provide the school with an operational feeding machine, thus preventing school officials from providing L.M. with nourishment, hydration and medication. School officials had trouble reaching Mother and it took several hours for her to deliver a feeding machine or power cord, even though she lived only minutes from the school. And when Mother did arrive, DCS records report that she was "usually . . . out of it" and had trouble "keeping her eyes open." Mother later conceded she used methamphetamine "on occasion" while L.M. was at school.

         ¶4 The record indicates that Mother was indifferent and uncaring at times. School officials alerted Mother that L.M. was vomiting uncontrollably and directed her to retrieve her daughter. Mother did not arrive for more than two hours after receiving the news. L.M. then returned to school after a brief one-week absence with a large red sore on her neck. The baseball-sized blotch was shiny, moist and had a strong, foul odor. School officials contacted Mother, who did not respond for hours. Mother later downplayed the blotch, even questioning whether someone had altered pictures of the sore to make it look worse.

         ¶5 The school nurse also expressed concern about Mother's care and maintenance of L.M.'s medical equipment. Mother did not provide clean and sterile supplies for the feeding machine, forcing the nurse to reuse the same tubes and bags, increasing the risk of infection.

         ¶6 The matter reached a breaking point in September 2017. Mother again sent L.M. to school with no feeding machine and later delivered a feeding machine that broke down, leaving L.M. without nourishment for hours. School and DCS officials unsuccessfully tried to reach Mother. DCS took L.M. into care.

         ¶7 DCS filed a dependency petition based on Mother's failure to provide proper and effective parental care and control, A.R.S. ยง 8-201(15)(a)(i), but continued its efforts to return L.M. to Mother's care. Mother ultimately agreed to a safety plan, which provided that L.M. would live with her maternal grandmother and Mother until Mother passed 12 consecutive drug tests for methamphetamine "without any missed or diluted samples in a month" and enrolled in counseling services ...

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