Opinion
1 CA-JV 12-0140
02-26-2013
ANGEL M., Appellant, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, TERRY P., TRAVIS P., SOPHIA A., Appellees.
Robert D. Rosanelli, Attorney at Law by Robert D. Rosanelli Attorney for Appellant Thomas C. Horne, Attorney General by Amanda Holguin, Assistant Attorney General Mesa Attorneys for Appellee Arizona Department of Economic Security
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(Not for Publication -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. JD509695
The Honorable Shellie F. Smith, Judge Pro Tempore
AFFIRMED
Robert D. Rosanelli, Attorney at Law
by Robert D. Rosanelli
Attorney for Appellant
Phoenix
Thomas C. Horne, Attorney General
by Amanda Holguin, Assistant Attorney General Mesa
Attorneys for Appellee Arizona Department of Economic Security
Phoenix
PORTLEY, Judge ¶1 Angel M. ("Mother") appeals the determination that her three children are dependent. For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Terry P. and Travis M. came to the attention of the Arizona Department of Economic Security ("ADES") in July 2010 following a report that Mother was abusing illegal drugs. ADES provided in-home family preservation services, including a substance abuse assessment and outpatient treatment services for Mother, who tested positive for tetrahydrocannabinol while pregnant. Mother, however, failed to participate in the services and gave birth to S.A., who was born substance-exposed to marijuana. ¶3 ADES received another report in October 2011 alleging that Mother was regularly using drugs and alcohol and neglecting the children's needs. ADES placed the children in foster care, filed a dependency petition, and adopted a case plan of family reunification. Following Mother's failure to fully participate in substance abuse treatment and supervised visits, the juvenile court held a four-day contested hearing and found the children dependent as to Mother. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes ("A.R.S.") sections 8-235(A) and 12-120.21(A)(1) (West 2013).
Tetrahydrocannabinol is the active component in marijuana. State v. Lucero, 207 Ariz. 301, 302-03, ¶ 4, 85 P.3d 1059, 1060-61 (App. 2004).
DISCUSSION
¶4 Mother argues that the dependency ruling was clearly erroneous because it was not supported by substantial evidence. We review dependency orders for an abuse of discretion and will affirm unless the court's factual findings are clearly erroneous. Antonio P. v. Ariz. Dep't of Econ. Sec., 218 Ariz. 402, 404, ¶ 8, 187 P.3d 1115, 1117 (App. 2008); Pima Cnty. Juv. Dependency Action No. 118537, 185 Ariz. 77, 79, 912 P.2d 1306, 1308 (App. 1994). ¶5 The juvenile court is vested with considerable discretion to determine whether dependency is in a child's best interest. Willie G. v. Ariz. Dep't of Econ. Sec., 211 Ariz. 231, 235, ¶ 21, 119 P.3d 1034, 1038 (App. 2005). A "dependent child" is one "whose home is unfit by reason of abuse, neglect, cruelty or depravity by a parent." A.R.S. § 8-201(13)(a)(iii) (West 2013). In determining if a child is neglected, consideration shall be given to the parent's drug abuse. A.R.S. § 8-819(1) (West 2013). ¶6 Here, there was sufficient evidence to support the finding that the children were dependent due to Mother's substance abuse. Mother tested positive for marijuana components during her pregnancy and S.A. was born substance-exposed. The children reported that Mother smoked marijuana in front of them and they knew where she kept it in the home. Mother testified she used marijuana regularly for several years and would continue to use it daily if ADES returned her children. Despite Mother's initial efforts to participate in reunification services, she failed to fully participate in substance abuse treatment, drug testing, and supervised visits with the children. The ADES case manager testified that Mother's controlled substance abuse placed the children at risk of neglect in her care. ¶7 The court was "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, 100 P.3d 943, 945 (App. 2004), and determined that ADES had proven its case by a preponderance of the evidence. Because we defer to the court's factual findings, we do not find that the dependency determination was an abuse of discretion.
In October 2011, Mother received a registry identification card authorizing her to use an allowable amount of marijuana for medicinal purposes pursuant to A.R.S. § 36-2811. However, because Mother tested positive for marijuana components and admitted to using marijuana regularly prior to receiving the card we need not address whether her use of marijuana after receiving the card affects the finding of dependency.
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CONCLUSION
¶8 Based on the foregoing reasons, we affirm.
______________________________
MAURICE PORTLEY, Presiding Judge
CONCURRING: _______________
PATRICIA A. OROZCO, Judge
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RANDALL M. HOWE, Judge