Opinion
No. 2 CA-JV 2014-0052
10-06-2014
KIMBERLY W., Appellant, v. DEPARTMENT OF CHILD SAFETY AND D.D., Appellee.
COUNSEL Scott W. Schlievert, Tucson Counsel for Appellant Thomas C. Horne, Arizona Attorney General By Erika Z. Alfred, Assistant Attorney General, Tucson Counsel for Appellee Department of Child Safety
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. NOT FOR PUBLICATION See Ariz. R. Civ. App. P. 28(c); Ariz. R. P. Juv. Ct. 103(G). Appeal from the Superior Court in Pima County
No. JD20130226
The Honorable Catherine M. Woods, Judge
AFFIRMED
COUNSEL Scott W. Schlievert, Tucson
Counsel for Appellant
Thomas C. Horne, Arizona Attorney General
By Erika Z. Alfred, Assistant Attorney General, Tucson
Counsel for Appellee Department of Child Safety
MEMORANDUM DECISION
Judge Vásquez authored the decision of the Court, in which Judge Howard and Judge Brammer concurred. VÁSQUEZ, Judge:
The Hon. J. William Brammer, Jr., a retired judge of this court, is called back to active duty to serve on this case pursuant to orders of this court and the supreme court.
¶1 Kimberly W. appeals from the juvenile court's order adjudicating her son, D.D., then nine years old, a dependent child. We affirm the court's dependency order for the following reasons.
Factual and Procedural Background
¶2 According to Department of Child Safety (DCS) reports, over the course of several years, Kimberly's fourteen-year- old daughter, B.W., had complained to Kimberly that she was being sexually abused by M.D., D.D.'s father, who lived with Kimberly and her children. When a relative told B.W.'s biological father about the reports of sexual abuse, he confronted Kimberly; it was only then that she reported the abuse to law enforcement. After DCS investigated the report and reviewed forensic interviews, it removed the two children from Kimberly's care and filed a dependency petition. B.W. was placed with her biological father; D.D. was placed with his maternal great aunt and uncle.
The reports were prepared by employees of Child Protective Services (CPS), formerly a division of the Arizona Department of Economic Security (ADES). Effective May 29, 2014, the Arizona legislature repealed the statutory authorization for CPS and for ADES's administration of child welfare and placement services under title 8 and transferred powers, duties, and purposes previously assigned to those entities to the newly established DCS. See 2014 Ariz. Sess. Laws 2d Spec. Sess., ch. 1, §§ 6, 20, 54. Accordingly, DCS has been substituted for ADES in this matter. See Ariz. R. Civ. App. P. 27. For simplicity, our references to DCS in this decision encompass both ADES and the former CPS.
¶3 In its dependency petition, DCS alleged Kimberly had failed to protect B.W. from M.D.'s sexual abuse and had allowed him to remain in the home, where he continued to sexually abuse B.W. It also alleged that Kimberly has used marijuana in front of the children and that both children have had difficulty waking her "on various occasions."
¶4 After an evidentiary hearing that spanned four days, the juvenile court concluded DCS had proved by a preponderance of the evidence its allegation that "the children are dependent due to . . . neglect" with respect to Kimberly. The court cited "persuasive" evidence "that there were repeated incidents of inappropriate contact" between M.D. and B.W. The court further found that B.W. had, "on more than one occasion," reported the incidents to Kimberly and that B.W.'s allegations were "credible enough to prompt a reasonable and appropriate parent to take protective action." In finding Kimberly "failed to take reasonable or appropriate action to protect [B.W.] from subsequent incidents of sexual abuse," the court noted she had failed to report the allegations to law enforcement or to B.W.'s father, who might have intervened; failed to seek services to assist B.W. "in dealing with the alleged incidents"; and allowed M.D. to "continue residing in the same home" with B.W. and D.D. The court added that DCS had "proved its allegations . . . that [Kimberly] used marijuana in the presence of at least one of her children and has used other substances that make it difficult for the children to wake her." The court adjudicated D.D. a dependent child, finding "it was not safe or appropriate for [D.D.] to be in a home in which his father sexually perpetrated on another child" and concluding Kimberly's "actions have demonstrated an inability or unwillingness to provide appropriate supervision and shelter to her children, and this caused an unreasonable risk of harm to the children's health or welfare."
Notwithstanding its determination that both children were dependent as to Kimberly on the ground of neglect, the juvenile court dismissed B.W. from the dependency proceeding after finding her biological father "able to properly and effectively parent" her.
Discussion
¶5 On appeal, Kimberly disputes the juvenile court's finding that she used marijuana in D.D.'s presence, based on her own contrary statements to a DCS investigator. Citing A.R.S. § 36-2813(D) and evidence that she "may have had a medical marijuana card," she contends there was no reasonable evidence that her use of marijuana posed an unreasonable risk of harm to D.D.'s health or welfare. She also argues her "alleged failure to protect [B.W.] from abuse by her step-father . . . was not reasonable evidence to support a finding that [D.D.] was dependent on the ground[] of neglect."
Section 36-2813(D) provides, "No person may be denied custody of or visitation or parenting time with a minor, and there is no presumption of neglect or child endangerment for conduct allowed under this chapter [authorizing medical use of marijuana], unless the person's behavior creates an unreasonable danger to the safety of the minor as established by clear and convincing evidence."
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¶6 On appeal, we view the evidence in the light most favorable to sustaining the juvenile court's findings, Jordan C. v. Ariz. Dep't of Econ. Sec., 223 Ariz. 86, ¶ 18, 219 P.3d 296, 303 (App. 2009), and we will not disturb the court's ruling unless no reasonable evidence supports it, In re Maricopa Cnty. Juv. Action No. JD-500200, 163 Ariz. 457, 461, 788 P.2d 1208, 1212 (App. 1989). A dependent child includes one adjudicated to be "[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" or whose "home is unfit by reason of abuse, neglect, cruelty or depravity by a parent." A.R.S. § 8-201(14)(a).
¶7 In a forensic interview, D.D. described Kimberly's marijuana use in sufficient detail to support the juvenile court's finding that she had used marijuana in his presence. We will not reweigh the evidence on this issue. See Ariz. Dep't of Econ. Sec. v. Oscar O., 209 Ariz. 332, ¶¶ 4, 14, 100 P.3d 943, 945, 947 (App. 2004) (juvenile court in "best position" to "resolve disputed facts"; appellate court does not reweigh evidence). Moreover, we agree with DCS that Kimberly has waived any argument based on A.R.S. § 36-2813(D) by failing to raise the issue below and by failing to develop the argument adequately on appeal. See City of Tucson v. Clear Channel Outdoor, Inc., 218 Ariz. 172, ¶ 88, 181 P.3d 219, 242 (App. 2008) (appellate court will not address issues or arguments waived by party's failure to develop them adequately); Trantor v. Fredrikson, 179 Ariz. 299, 300, 878 P.2d 657, 658 (1994) ("[A]bsent extraordinary circumstances, errors not raised in the trial court cannot be raised on appeal.").
¶8 In any event, reasonable evidence presented at the dependency adjudication hearing supported the juvenile court's finding that Kimberly was unable or unwilling to protect B.W. from abuse that had continued for several years; the court reasonably could have inferred, from the same evidence, that Kimberly also would be unable or unwilling to protect D.D. from similar abuse. See In re Pima Cnty. Juv. Action No. 96290, 162 Ariz. 601, 604, 785 P.2d 121, 124 (App. 1990) (state may act to protect sibling of abused child without waiting "until a specific injury has been inflicted upon him"); see also § 8-201(14)(a)(iii) ("[d]ependent child" is "[a] child whose home is unfit by reason of abuse . . . by a parent . . . or any other person having custody or care of the child").
Disposition
¶9 Reasonable evidence supports the juvenile court's order adjudicating D.D. a dependent child. Accordingly, the dependency adjudication is affirmed.