Opinion
2 CA-JV 2023-0130 2 CA-JV 2023-0135
03-01-2024
In re Dependency of C.K. and R.K.,
Southern Arizona Law PLLC, Tucson By Justin D. Gettler Counsel for Appellant Todd K. Sarah Michele Martin Counsel for Appellant Sarah J. Kristin K. Mayes, Arizona Attorney General By Autumn Spritzer, Assistant Attorney General, Tucson Counsel for Appellee Department of Child Safety. Pima County Office of Children's Counsel By Merissa Amiri Counsel for Minors,
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pima County No. JD20230257 The Honorable Jane Butler, Judge Pro Tempore.
Southern Arizona Law PLLC, Tucson By Justin D. Gettler Counsel for Appellant Todd K.
Sarah Michele Martin Counsel for Appellant Sarah J.
Kristin K. Mayes, Arizona Attorney General By Autumn Spritzer, Assistant Attorney General, Tucson Counsel for Appellee Department of Child Safety.
Pima County Office of Children's Counsel By Merissa Amiri Counsel for Minors,
Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Brearcliffe and Judge Kelly concurred.
MEMORANDUM DECISION
ECKERSTROM, JUDGE.
¶1 Todd K. and Sarah J. appeal from the juvenile court's order adjudicating their son, C.K., born in June 2020, and their daughter, R.K., born in June 2023, dependent. For the following reasons, we affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to upholding the juvenile court's findings. See Willie G. v. Ariz. Dep't of Econ. Sec., 211 Ariz. 231, ¶ 21 (App. 2005). In June 2023, R.K. was born substance-exposed, with both she and Sarah testing positive for amphetamines. Sarah reported that the positive tests were due to her taking Sudafed for sinus and ear infections during her pregnancy. But hospital staff reported that Sudafed would not have resulted in a positive amphetamine test. R.K. was placed in the neonatal intensive care unit (NICU), where she exhibited signs of withdrawal, including sneezing, wheezing, hiccupping, high-pitched crying, and inconsolableness.
¶3 During the investigation that followed, caseworkers from the Department of Child Safety (DCS) learned of a history of domestic violence between Todd and Sarah and drug use. As detailed in separate police reports from June and September 2018, Sarah assaulted Todd, Todd threatened to kill Sarah, Todd broke Sarah's nose, and Sarah admitted she "does cocaine with Todd." In May 2019, officers responded to a domestic violence call, obtained video footage of Todd assaulting Sarah, and observed injuries to Sarah's face. In October 2022, officers responded to two separate incidents, the latter of which resulted in Todd being arrested for harassment and disorderly conduct. During that incident, Todd blocked Sarah and C.K. in an alley, followed them with his car, and threated to ruin their lives. A third party heard Todd say, "You don't want me to grab my gun," and Sarah reported that Todd was "verbally abusive and swears at herself and [C.K.] often." In May 2023, Todd was placed on probation as a result of that incident, and a condition of his probation was that he would attend domestic violence classes.
¶4 DCS filed a dependency petition, asserting that, as to Sarah, she was unable to safely parent due to domestic violence and substance abuse. As to Todd, DCS alleged the children were dependent because of domestic violence, his inability to protect the children from Sarah's substance abuse, and his failure to establish paternity as to C.K. At the preliminary protective hearing in July 2023, the juvenile court ordered the parents to provide hair samples for drug testing or, alternatively, to "drop every day" to establish their sobriety. The parents failed to do either.
Todd and Sarah each provided one urine sample in June 2023 that was negative for substances.
¶5 At the time of the dependency hearing in September 2023, the parents had not engaged in visitation with the children since July. After the dependency hearing, the juvenile court adjudicated C.K. and R.K. dependent as to Todd and Sarah. The court found DCS had established both allegations as to Sarah and all three allegations as to Todd. Both parents appealed, and this court consolidated the appeals.
Discussion
¶6 Todd and Sarah challenge the sufficiency of the evidence to support the dependency adjudication. "We review an order adjudicating a child dependent for an abuse of discretion." Shella H. v. Dep't of Child Safety, 239 Ariz. 47, ¶ 13 (App. 2016). In doing so, we defer to the juvenile court's ability to judge the credibility of witnesses, observe the parties, and weigh the evidence. Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, ¶ 4 (App. 2002). Thus, we will only disturb a dependency adjudication if no reasonable evidence supports it. Louis C. v. Dep't of Child Safety, 237 Ariz. 484, ¶ 12 (App. 2015). Moreover, we review evidentiary rulings for an abuse of discretion. Kimu P. v. Ariz. Dep't of Econ. Sec., 218 Ariz. 39, ¶ 11 (App. 2008).
¶7 A dependent child is one who is "[i]n need of proper and effective parental care and control and who has no parent or guardian . . . willing to exercise or capable of exercising such care and control." Children may also be found dependent if their home "is unfit by reason of abuse, neglect, cruelty or depravity by a parent, a guardian or any other person having custody or care of [them]." A.R.S. § 8-201(15)(a)(i), (iii). "Neglect" means "[t]he inability or unwillingness of a parent, guardian or custodian of a child to provide that child with supervision, food, clothing, shelter or medical care if that inability or unwillingness causes substantial risk of harm to the child's health or welfare." Pertinent here, neglect may be found when a health care professional determines that "a newborn infant was exposed prenatally to a drug or substance listed in [A.R.S.] § 13-3401 and that this exposure was not the result of a medical treatment administered to the mother or the newborn infant by a health professional." § 8-201(25)(a), (c). In determining if a child is neglected, courts give consideration to drug or alcohol abuse by a parent. This includes substance abuse by a mother "during pregnancy if the child, at birth or within a year after birth, is demonstrably adversely affected by this use." A.R.S. § 8-819. The petitioner must prove the allegations in a dependency proceeding by a preponderance of the evidence based on the circumstances existing at the time of the hearing. A.R.S. § 8-844(C); Shella H., 239 Ariz. 47, ¶ 12.
¶8 As a preliminary matter, DCS concedes that the juvenile court erred in adjudicating the children dependent as to Todd based on his failure to establish paternity of C.K. At the contested dependency hearing, DCS notified the court that it had received an updated copy of C.K.'s birth certificate reflecting Todd as the father. Accordingly, DCS stated that it would not be proceeding with that ground. We therefore agree with Todd and DCS that the court erred by adjudicating the children dependent on this basis. Nevertheless, we can affirm the dependency adjudication if it is legally correct for any reason. Gila River Indian Cmty. v. Dep't of Child Safety, 242 Ariz. 277, ¶ 26 (2017); cf. Jesus M., 203 Ariz. 278, ¶ 3 (when termination affirmed on one ground, appellate court need not address other grounds).
I. Domestic Violence
¶9 Todd and Sarah challenge the juvenile court's dependency adjudication based on their domestic violence. Todd argues that there is not "an extensive history of domestic violence," as the court found, but only two police reports from 2018, one from 2019, and two from 2022. As to the 2018 and 2019 incidents, Todd further maintains that there was "no evidence of conviction" and that they "transpired before any children were born." Sarah similarly asserts, "There was no evidence presented of any domestic violence charges or convictions, only police reports." Todd also challenges statements by the paternal grandmother in the first 2022 report as hearsay.
¶10 Domestic violence need not result in an arrest or a criminal conviction to support a dependency adjudication. See §§ 8-201(15)(a)(iii), 8-201(25)(a); see also In re Maricopa Cnty. Juv. Action No. JD-6123 , 191 Ariz. 384, 392 (App. 1997) (father's involvement in "emotionally and physically violent relationships" supported dependency). In addition, "domestic violence need not be continuous or actively occurring at the time of the adjudication hearing to support a finding of dependency." Shella H., 239 Ariz. 47, ¶ 16. "[T]he substantiated and unresolved threat is sufficient." Id. This is particularly true when the parent denies the existence of any domestic violence. Id.
¶11 Here, even disregarding the alleged hearsay by the paternal grandmother in the 2022 report, reasonable evidence supports the juvenile court's adjudication based on domestic violence. Although several of the incidents occurred before C.K. and R.K. were born, they nevertheless establish an unresolved pattern of domestic violence between Todd and Sarah. Police reports detailed multiple instances of physical and verbal abuse by Todd and at least one instance of physical abuse by Sarah. The most recent incident in October 2022 occurred when Todd and Sarah were separated, and it involved C.K. and another of Todd's former girlfriends, H.H. Sarah reported that Todd was "verbally abusive and swears at herself and [C.K.] often." Afterward, however, Todd and Sarah resumed their relationship, and Sarah removed herself as a named victim. Todd was nevertheless convicted of harassment-a domestic-violence offense-and placed on probation. Sarah recognized that Todd had a history of domestic violence with H.H. Yet, Todd and Sarah continued to deny any domestic violence between them. Accordingly, we cannot say the juvenile court erred in adjudicating C.K. and R.K. dependent based on domestic violence. See Shella H., 239 Ariz. 47, ¶ 13.
II. Substance Abuse
¶12 Todd and Sarah also challenge the juvenile court's dependency adjudication based on Sarah's substance abuse and Todd's failure to protect the children therefrom. Both complain that DCS failed to provide medical documentation showing a positive drug test for R.K. and instead improperly relied on the DCS caseworker's testimony and report. Although hospital records showing a positive drug test for R.K. would have been preferable, the trial court was entitled to consider the DCS caseworker's testimony and report. Both evidenced R.K.'s positive drug test and post-birth symptoms. Furthermore, the record includes the results of a urine test for Sarah the day that R.K. was born. That test was positive for amphetamines.
¶13 Notably, neither Todd nor Sarah objected to the admission of the DCS caseworker's June report. See Trantor v. Fredrikson, 179 Ariz. 299, 300 (1994) ("[A]bsent extraordinary circumstances, errors not raised in the trial court cannot be raised on appeal."). Consistent with the DCS caseworker's testimony, that report documented the initial hotline call that R.K.'s urine test was presumptive positive for amphetamines and the caseworker's apparent confirmation, two days later, that R.K.'s urine test was indeed positive for amphetamines. See State v. Harvill, 106 Ariz. 386, 391 (1970) ("[T]he probative value of direct and circumstantial evidence are intrinsically similar; therefore, there is no logically sound reason for drawing a distinction as to the weight to be assigned each."). Moreover, Sarah seemingly acknowledged the positive results when she claimed it resulted from taking Sudafed during her pregnancy. The caseworker also testified as to R.K.'s withdrawal symptoms, explaining that she had observed R.K. to be difficult to console and to have a high-pitched cry.
¶14 Todd nevertheless argues that "[s]ymptoms of substance-exposed newborns are within the scope of specialized knowledge" and that the DCS caseworker could not offer her "lay opinion" on the matter. He further contends that the juvenile court erred in accepting the caseworker's testimony because she had observed R.K. for only a short time and could not make "a proper assessment." But Todd offers no legal authority to support his position that the caseworker could not offer her lay opinion on this matter. See Melissa W. v. Dep't of Child Safety, 238 Ariz. 115, ¶ 9 (App. 2015) (argument waived when unsupported by authority). The caseworker testified that she had received training on the signs and symptoms of exposure to substances, she described those symptoms, and she then testified as to what she personally observed with R.K. See Ariz. R. Evid. 701 (opinion testimony by lay witnesses); State v. Doerr, 193 Ariz. 56, ¶ 26 (1998) (lay witnesses may give opinion testimony, even as to ultimate issue, when it is rationally based on perception of witness and helpful to understanding witness's testimony or determination of fact in issue); cf. Morales v. Bencic, 12 Ariz.App. 40, 41 (1970) (experienced police officers who have observed people in varying states of intoxication may properly testify whether, based on personal observation, defendant shows any indication of being under influence of alcohol).
¶15 Moreover, as explained above, Todd did not object to the admission of the caseworker's June 2023 report, which similarly documented that R.K. had been suffering from withdrawal symptoms, specifically, sneezing, wheezing, hiccupping, high-pitched crying, and being inconsolable. To the extent that Todd and Sarah ask this court to discount the caseworker's credibility or to reweigh the evidence, we will not do so. See Jesus M., 203 Ariz. 278, ¶ 4.
¶16 Lastly, Todd argues that the juvenile court erred by concluding R.K. was born substance-exposed without hearing testimony from a health professional pursuant to § 8-201(25)(c). Section 8-201(25) gives multiple definitions for neglect, and subsection (c) specifically provides that neglect means "[a] determination by a health professional that a newborn infant was exposed prenatally to a drug or substance listed in § 13-3401 and that this exposure was not the result of a medical treatment administered to the mother or the newborn infant by a health professional." Todd reasons that DCS failed to offer any testimony to satisfy that definition.
¶17 However, the juvenile court was not required to find neglect on this basis. Nor is it clear that it did so. As detailed above, § 8-201(15)(a) provides multiple definitions of a dependent child, not all of which require a showing of neglect. The court found C.K. and R.K. dependent under § 8-201(15) without specifying the subsection. That section provides multiple definitions of neglect. The record supports an alternate finding of neglect that Todd and Sarah were unable or unwilling to provide C.K. and R.K. with proper supervision, thereby creating a substantial risk of harm to their health or welfare. See § 8-201(25)(a); Gila River Indian Cmty., 242 Ariz. 277, ¶ 26 (we can affirm if legally correct for any reason). As such, DCS did not need to provide a determination by a health professional.
Indeed, Sarah seems to suggest that subsection (a), not (c), was the basis of the juvenile court's ruling.
¶18 Here, the record contains admissions of prior drug use by both Todd and Sarah. There was evidence that Sarah and R.K. had tested positive for amphetamines at the time of R.K.'s birth. Yet, Todd denied any substance abuse by Sarah and failed to recognize the potential harm to the children. Both parents refused to provide a hair sample and failed to drug test after June. They also cut C.K.'s hair, such that DCS was unable to test his hair for drug exposure. In sum, the juvenile court's reliance on circumstantial evidence of drug use in the absence of rebutting evidence was well within the court's authority to weigh and draw reasonable inferences therefrom. See Jesus M., 203 Ariz. 278, ¶ 4.
Disposition
¶19 For the foregoing reasons, we affirm the juvenile court's order adjudicating C.K. and R.K. dependent as to Todd and Sarah.