Opinion
1 CA-JV 12-0205
02-26-2013
JESSICA H., Appellant, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, NOT NAMED H., Appellees.
Thomas A. Vierling Attorney for Appellant Phoenix Thomas C. Horne, Arizona Attorney General By Michael F. Valenzuela, Assistant Attorney General Attorneys for Appellee Arizona Department of Economic Security Phoenix
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication -
103(G) Ariz. R.P. Juv.
Ct.; Rule 28 ARCAP)
Appeal from the Superior Court in Maricopa County
Cause No. JD21461
The Honorable Aimee L. Anderson, Judge
AFFIRMED
Thomas A. Vierling
Attorney for Appellant
Phoenix Thomas C. Horne, Arizona Attorney General
By Michael F. Valenzuela,
Assistant Attorney General
Attorneys for Appellee Arizona Department of
Economic Security
Phoenix THOMPSON, Judge ¶1 Jessica H. (Mother) appeals from the juvenile court's order finding her infant son, Xander, dependent. After a contested hearing, the juvenile court found by a preponderance of the evidence that Xander was dependent as to Mother pursuant to Arizona Revised Statutes (A.R.S.) section 8-201(13) (Supp. 2012), and that he is in need of out-of-home care to protect his welfare. The case plan is family reunification concurrent with severance and adoption. For the following reasons, we affirm the order of dependency.
FACTS AND PROCEDURAL HISTORY
We view the facts in the light most favorable to sustaining the juvenile court's ruling. Lashonda M. v. Ariz. Dep't of Econ. Sec., 210 Ariz. 77, 82, ¶ 13, 107 P.3d 923, 928 (App. 2005). We do not reweigh the evidence, and we defer to the fact-finder's resolution of any conflicts in the evidence. See Vanessa H. v. Ariz. Dep't of Econ. Sec., 215 Ariz. 252, 257, ¶ 22, 159 P.3d 562, 567 (App. 2007); Lashonda M., 210 Ariz. at 82, ¶ 16, 107 P.3d at 928.
¶2 On January 27, 2012, while Mother was approximately seven months pregnant, Mother checked herself into the hospital because she was experiencing shortness of breath. During her evaluation, Mother tested positive for amphetamines. She denied using amphetamines, but said she had been around someone that was using. Mother declined medical admission and left against medical advice. Two days later, she returned to the hospital with more severe symptoms and Mother's physicians decided to intubate her airway with mechanical ventilation. The physicians performed an emergency bedside cesarean section because fetal monitoring suggested that the fetus was under distress. Xander was born "pale, limp, with no respiratory effort." Mother's physicians ordered a comprehensive urine drug screen because her symptoms were "consistent with having methamphetamines on board." Mother again tested positive for methamphetamines and amphetamines. She again denied using methamphetamines. Mother was diagnosed with diastolic heart failure secondary to dilated cardiomyopathy attributable to amphetamine use. ¶3 Child Protective Services (CPS) received a report that Mother tested positive for methamphetamines at the time of the birth. On February 1, a CPS case manager went to the hospital to notify the parents and discuss the validity of the allegations. Mother indicated she was not medically able to discuss the report at that time, and the case manager left contact information with her so she could contact CPS later. The CPS case manager made several attempts to reach Mother in the following days. On February 6, the case manager spoke with Mother on the phone and scheduled a home visit for the next day, but when the case manager arrived, nobody was home. The case manager attempted to meet with the parents and to reach them telephonically, but all attempts were unsuccessful. ¶4 On February 13, CPS decided to take Xander into temporary physical custody because he was being discharged from the hospital. The case manager served a temporary custody notice on the parents at their home the same day. The case manager described the home as unsafe with metal art materials, screwdrivers, and knives throughout the house. She did not observe any baby items or anything that indicated that they were prepared to have Xander home. Mother told the case manager that the methamphetamines in her system were from some cough syrup she had taken due to a cold. ¶5 Two days later, CPS held a team decision-making meeting with the parents. The case manager asked Mother to participate in a hair follicle test and random urinalysis tests. She did not participate. The Arizona Department of Economic Security (ADES) filed its dependency petition the following day, alleging abuse and/or neglect. At the dependency hearing, Mother stated that the methamphetamines were in her system because of "something that was given to [her] at the hospital." The court ruled from the bench that ADES had proven the dependency petition's allegations by a preponderance of the evidence. ¶6 Mother timely appealed. We have jurisdiction pursuant to A.R.S. §§ 8-235(A) (2007), 12-120.21(A)(1) (2003), and 12-2101(A)(1) (Supp. 2012).
DISCUSSION
¶7 Mother argues that the court's finding of dependency was clearly erroneous and contrary to the substantial evidence in the record. This court will not disturb the juvenile court's dependency ruling unless the findings upon which it is based are clearly erroneous and there is no reasonable evidence supporting them. Maricopa Cnty. Juv. Action No. J-75482, 111 Ariz. 588, 591, 536 P.2d 197, 200 (1975). The allegations of the petition must be supported by a preponderance of the evidence. Cochise Cnty. Juv. Action No. 5666-J, 133 Ariz. 157, 159, 650 P.2d 459, 461 (1982). ¶8 In a dependency action, the primary concern is always the best interest of the child. Id. at 161, 650 P.2d at 463. A "dependent child" is "[a] child whose 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 the child." A.R.S. § 8-201(13)(a)(iii). "Neglect" is defined in relevant part as "[t]he inability or unwillingness of a parent . . . to provide [a] child with 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(22)(a). ¶9 Reasonable evidence supports the juvenile court's finding that Xander is dependent as to Mother. Mother tested positive for amphetamines twice while pregnant with Xander. Mother gave inconsistent reasons for the positive drug tests and made it difficult for CPS to meet with her to assess the situation. She did not participate in the drug testing requested by CPS at the team decision-making meeting. The record shows that her amphetamine use caused Xander's premature birth and that he was "substance-exposed." Xander then required two weeks of treatment in the neonatal intensive care unit before he could be discharged. Consequently, there was ample evidence that Mother's amphetamine use jeopardized Xander's health and safety. ¶10 Mother argues that the case worker had insufficient information to assess the risk of placing the child with the parents and insufficient evidence that Mother could not provide Xander with the basic necessities of life. However, any limited knowledge on the part of CPS was a direct result of Mother's lack of cooperation. The case manager did see the home on the day of Xander's discharge from the hospital and testified that it was unsafe and not ready for Xander's arrival. Mother had two weeks to prepare for Xander's discharge from the hospital, yet when the case worker arrived she did not find any baby items in the house. Instead, the house was strewn with metal art materials, screwdrivers, and knives. While this alone would be insufficient evidence, it raises alarms considering Mother also had no prenatal care. Viewing this evidence in conjunction with the methamphetamine use, we conclude that the court's findings were supported by substantial evidence.
CONCLUSION
¶11 For the foregoing reasons, we affirm the juvenile court's finding of dependency.
_________________
JON W. THOMPSON, Judge
CONCURRING: _________________
JOHN C. GEMMILL, Presiding Judge
_________________
DONN KESSLER, Judge