Opinion
1 CA-JV 12-0220
02-21-2013
APRIL M., Appellant, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, A.M., D.M., Appellees.
Robert D. Rosanelli Attorney for Appellant Thomas C. Horne, Attorney General by Nicholas Chapman-Hushek, Assistant Attorney General 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(Not for Publication - Ariz. R.P. Juv. Ct. 103(G); ARCAP 28)
Appeal from the Superior Court in Maricopa County
Cause No. JD15699
The Honorable Margaret R. Mahoney, Judge
AFFIRMED
Robert D. Rosanelli
Attorney for Appellant
Phoenix
Thomas C. Horne, Attorney General
by Nicholas Chapman-Hushek, Assistant Attorney General
Attorneys for Appellee Arizona Department of Economic Security
Phoenix
THUMMA, Judge ¶1 April M. appeals the superior court's order finding her children, A.M. and D.M., dependent as to her. April argues the court's dependency finding is clearly erroneous and not supported by the evidence. Because reasonable evidence supports the finding of dependency, and the superior court properly applied the law, the dependency finding is affirmed.
The caption on appeal is amended to list the children by their initials. The alleged fathers are not parties to this appeal.
FACTS AND PROCEDURAL HISTORY
On appeal of a dependency finding, this court "view[s] the evidence in the light most favorable to sustaining the juvenile court's findings." Willie G. v. Ariz. Dep't of Econ. Sec., 211 Ariz. 231, 235, ¶ 21, 119 P.3d 1034, 1038 (App. 2005).
¶2 April is the biological mother of A.M., born in 2007, and D.M., born in 2011. Prior to A.M.'s birth, April began living with J.H., who provided for April's financial and housing needs. ¶3 Both children tested positive for methamphetamines at birth. After A.M.'s birth, the Arizona Department of Economic Security (ADES) filed a dependency petition, A.M. was found dependant as to April, April then consistently participated in substance-abuse treatment and, at ADES's request, that dependency was dismissed. After D.M.'s birth, Child Protective Services (CPS) instructed April to complete substance abuse treatment and undergo random urinalysis (UA) testing. At first, April generally participated in services; in September 2011, however, April took D.M. to Kentucky without CPS's permission or knowledge. April informed CPS of her trip after arriving in Kentucky, but failed to disclose that she left A.M. in J.H.'s care. April also failed to provide J.H. with written authority to care for A.M. When April ceased contact with CPS in September 2011, CPS reported April, A.M. and D.M. as missing persons. ¶4 CPS had no further contact with April until March 2012, when CPS received a report that April had left A.M. in J.H.'s care (without legal authority to care for her) and J.H. might be sexually abusing A.M. When CPS removed A.M. from J.H.'s care, J.H. had no contact information for April or D.M. After locating April shortly thereafter, CPS removed D.M. from her care. A.M. told CPS that J.H. took naked pictures of her and that she had seen J.H.'s penis "a lot." CPS's investigation into the alleged sexual abuse was ongoing at the time of the dependency hearing. ¶5 After removing A.M. and D.M., ADES filed a dependency petition. At the dependency hearing, April and her case manager Joy Taylor testified. April denied abusing drugs, denied suspecting J.H. of abusing A.M. and stated she could adequately provide for the children's needs. Taylor testified that April left A.M. in J.H.'s care without granting J.H. any legal authority and despite having told her mother that she suspected J.H. had abused A.M. Although April had been referred for services, Taylor testified that April refused to participate in substance abuse treatment (having missed 42 UAs and testing only once during the dependency) and failed to participate in three psychological evaluations. Taylor testified April missed three of eight visits with her children and, when she did attend visits, April often acted aggressively and inappropriately. Other evidence indicated April appeared to be under the influence during some visits and brought J.H. to the visits contrary to CPS's instructions. ¶6 Following the evidentiary hearing, the superior court found the children dependent as to April based on substance abuse, mental health and failure to provide for the children's daily needs. April filed a timely notice of appeal from that decision. This court has jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) sections 8-235(A), 12-120.21(A)(1) and-2101(A)(1).
Absent material revisions after the relevant dates, statutes cited refer to the current version unless otherwise indicated.
DISCUSSION
I. Standard Of Review.
¶7 ADES must prove a child is dependent by a preponderance of the evidence. Ariz. R.P. Juv. Ct. 55(C). "On appeal, this court will not substitute its judgment for that of the trial court unless no reasonable evidence exists to support" the dependency finding. Maricopa County Juv. Action No. JD-500200, 163 Ariz. 457, 461, 788 P.2d 1208, 1212 (App. 1989). Because the best interests of the child are the primary concern, the superior court is vested with "a great deal of discretion." Willie G. v. Ariz. Dep't of Econ. Sec., 211 Ariz. 231, 235, ¶ 21, 119 P.3d 1034, 1038 (App. 2005) (citation omitted).
II. Substantial Evidence Supports The Dependency Findings.
¶8 As relevant here, a "dependent child" is a child determined to be:
(i) In need of proper and effective parental care and control and who has no parent or guardian, or one who has no parent or guardian willing to exercise or capable of exercising such care and control.A.R.S. § 8-201(13)(a). "Neglect" includes "[t]he inability or unwillingness of a parent . . . of a child to provide that 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 The superior court found April has a history of abusing illegal substances and both children were born substance-exposed to methamphetamine. The court also noted April's 42 missed UA tests after the filing of the dependency. These findings are supported by drug testing records, April's admission that she did not participate in UA testing, the children's hospital birth records, CPS case notes and other exhibits. In addition, the evidence includes visitation supervisors' concerns that April appeared under the influence during some visits, which occurred after the filing of the dependency petition. The evidence also shows that April has denied and minimized her substance abuse issues and has refused to participate in substance abuse treatment services provided to her. On this record, given April's past behaviors and failure to address her substance abuse issues (indicating the children remain at risk of future neglect), the substance abuse ground was supported by reasonable evidence. See Willie G. , 211 Ariz. at 236, ¶ 27, 119 P.3d at 1039.
(ii) Destitute or who is not provided with the necessities of life, including adequate food, clothing, shelter or medical care.
(iii) 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.
Because the superior court properly found the children dependant as to April on the substance abuse ground, this court need not, and expressly does not, address the claims the children were dependent on other grounds.
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CONCLUSION
¶10 Because reasonable evidence supports the superior court's findings, the order finding A.M. and D.M. dependent as to April is affirmed.
_______________________________________
SAMUEL A. THUMMA, Presiding Judge
CONCURRING: ______________________________
MICHAEL J. BROWN, Judge
______________________________
DIANE M. JOHNSEN, Judge