Opinion
No. 2 CA-JV 2019-0137
03-16-2020
CLINT A., Appellant, v. DEPARTMENT OF CHILD SAFETY AND C.A., Appellees.
COUNSEL Joel Feinman, Pima County Public Defender By Adrienne A. Ticer, Assistant Public Defender, Tucson Counsel for Appellant Mark Brnovich, Arizona Attorney General By Cathleen E. Fuller, 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NOT FOR PUBLICATION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. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f); Ariz. R. P. Juv. Ct. 103(G). Appeal from the Superior Court in Pima County
No. JD20190330
The Honorable Ken Sanders, Judge Pro Tempore
AFFIRMED
COUNSEL Joel Feinman, Pima County Public Defender
By Adrienne A. Ticer, Assistant Public Defender, Tucson
Counsel for Appellant Mark Brnovich, Arizona Attorney General
By Cathleen E. Fuller, Assistant Attorney General, Tucson
Counsel for Appellee Department of Child Safety
MEMORANDUM DECISION
Presiding Judge Eppich authored the decision of the Court, in which Judge Espinosa and Judge Eckerstrom concurred. EPPICH, Presiding Judge:
¶1 Appellant Clint A. challenges the juvenile court's order of October 1, 2019, finding his son, C.A., born September 2017, dependent as to him. He maintains the court abused its discretion in taking judicial notice of facts relating to human hair growth, considering irrelevant or excluded evidence, and in basing its decision on "past circumstances." Finding no error, we affirm.
¶2 A dependent child includes one whose "home is unfit by reason of abuse, neglect, cruelty or depravity by a parent." A.R.S. § 8-201(15)(a)(iii). The allegations in a dependency petition must be proven by a preponderance of the evidence. A.R.S. § 8-844(C). We review a dependency adjudication for an abuse of discretion, "deferring to the juvenile court's ability to weigh and analyze the evidence." Shella H. v. Dep't of Child Safety, 239 Ariz. 47, ¶ 13 (App. 2016). Accordingly, "[w]e will only disturb a dependency adjudication if no reasonable evidence supports it." Id. "[W]e do not re-weigh the evidence on review." Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, ¶ 12 (App. 2002). And, we view the evidence in the light most favorable to affirming the court's findings. Willie G. v. Ariz. Dep't of Econ. Sec., 211 Ariz. 231, ¶ 21 (App. 2005).
¶3 C.A. was taken into custody in June 2019 after the Department of Child Safety (DCS) received reports that Clint and the child's paternal grandmother had used methamphetamine in C.A.'s presence, that others used drugs in the home, and that C.A. had access to drugs and paraphernalia in the home where they were staying. In a dependency petition filed in June 2019, DCS alleged C.A. was dependent based on Clint's failure "to maintain a normal parental relationship" with him and the risk he would neglect the child. After a contested dependency hearing, the juvenile court adjudicated C.A. dependent as to Clint, finding that DCS had established C.A. was "at risk of neglect" due to Clint's failure to protect the child from his mother's domestic violence with Clint or from drug use, based on the child's having tested positive for methamphetamine.
DCS filed an amended petition in August, but the court denied its motion to amend on the first day of trial. --------
¶4 On appeal Clint argues first that the juvenile court abused its discretion by sua sponte taking judicial notice of "the fact that human hair grows and that in nine months something would have changed in [Clint's] hair." Pursuant to Rule 201(b)(1), Ariz. R. Evid., a court may take judicial notice of "a fact that is not subject to reasonable dispute because it . . . is generally known within the trial court's territorial jurisdiction."
¶5 In refusing to take a hair follicle test that DCS had requested, Clint stated that he could not cut his hair for a year as part of a religious ritual he had begun in January 2019. DCS's investigator and case specialist, however, each testified that at the hearing in September, Clint's hair looked the same as it had around the time of C.A.'s removal some three months earlier. And although Clint argues on appeal that a person's hair may not grow for a variety of medical or other reasons, other than Clint's statement that his hair was "really weird," nothing in the record suggests Clint suffered from such a condition. Indeed, his mother testified that she often cut his hair and that he got his hair cut, "[u]sually all the time." We cannot say the court erred in taking judicial notice of the fact of human hair growth; such fact is "generally known" and not subject to reasonable dispute. Ariz. R. Evid. 201(b)(1).
¶6 Clint further contends the juvenile court "considered evidence it already determined it would exclude and/or that was irrelevant to the allegations." We review a court's admission of evidence for an abuse of discretion. See Yauch v. S. Pac. Transp. Co., 198 Ariz. 394, ¶ 10 (App. 2000).
¶7 Before the contested hearing, DCS attempted to amend its dependency petition to include an allegation that C.A. was "at risk of abuse and neglect" in Clint's care based on his history of substance abuse. The amended petition also stated, "The child's hair follicle drug test from June 18, 2019 was positive for methamphetamine." The court did not allow DCS to proceed on the amended petition, due to it having been filed late, but admitted evidence of C.A.'s positive drug test, which the state had indicated it would use in its pretrial statement.
¶8 The juvenile court ultimately concluded that C.A. was dependent as to Clint based on the risk of neglect in Clint's care. The original petition alleged that mother had substance abuse issues and that C.A. was "at risk for neglect in [Clint's] care." It noted Clint had previously been charged with drug use and that his "current drug use [wa]s unknown." In finding C.A. was at risk of neglect, the court noted "that the minor was exposed to methamphetamines . . . sufficiently enough to test positive in a hair test" and that C.A. had been exposed to methamphetamines either while in Clint's care or while in his mother's care, with Clint's permission.
¶9 We cannot say the juvenile court abused its discretion in considering C.A.'s exposure to methamphetamine in determining the child was dependent. Evidence of methamphetamine exposure was relevant to the allegation of neglect, see A.R.S. § 8-819(1); Ariz. R. Evid. 401, and Clint had adequate notice that it would be presented based on the state's pretrial statement.
¶10 Lastly, Clint asserts, "[T]he juvenile court abused its discretion in finding a dependency based on past circumstances and not at the time of trial." As Clint correctly points out, "[T]he juvenile court must consider the circumstances as they exist at the time of the dependency adjudication hearing in determining whether a child is a dependent child." Shella H., 239 Ariz. 47, ¶ 1. But in arguing that the circumstances at the time of the hearing weighed against dependency, he relies on only favorable evidence, such as his testimony that he would add C.A. to an order of protection against the child's mother and had filed a custody petition. On the record before us, at the time of the hearing no protective order for C.A. was in place and no custody determination had been made. Thus, we cannot say the juvenile court abused its discretion in weighing Clint's testimony and the history of his actions in regard to the child in light of the current legal status of the matter. See Jesus M., 203 Ariz. 278, ¶ 12; In re Pima County, Adoption of B-6355 & H-533, 118 Ariz. 111, 115 (1978) (trial court's findings upheld unless no reasonable evidence supports them).
¶11 For these reasons, we affirm the juvenile court's order adjudicating C.A. dependent as to Clint.