Opinion
2 CA-JV 2022-0145
06-01-2023
In re Dependency of A.S.,
Janelle A. Mc Eachern, Chandler Counsel for Appellant Kristin K. Mayes, Arizona Attorney General By Bailey G. Leo, Assistant Attorney General, Phoenix Counsel for Appellee Department of Child Safety
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pinal County No. S1100JD202200127 The Honorable Jamie R. Ramirez, Judge Pro Tempore AFFIRMED
Janelle A. Mc Eachern, Chandler
Counsel for Appellant
Kristin K. Mayes, Arizona Attorney General
By Bailey G. Leo, Assistant Attorney General, Phoenix
Counsel for Appellee Department of Child Safety
Judge O'Neil authored the decision of the Court, in which Vice Chief Judge Staring and Judge Kelly concurred.
MEMORANDUM DECISION
O'NEIL, JUDGE:
¶1 Robert S. appeals from the juvenile court's November 2022 order adjudicating his son, A.S., born in July 2009, dependent. For the following reasons, we affirm.
The juvenile court adjudicated A.S. dependent as to the mother after she entered a no contest plea. She is not a party to this appeal.
¶2 We view the facts in the light most favorable to upholding the juvenile court's findings. See Willie G. v. Ariz. Dep't of Econ. Sec., 211 Ariz. 231, ¶ 21 (App. 2005). In 2016, due to the mother's incarceration, Robert obtained custody of A.S. and moved with him into the paternal grandmother's home. Robert has an extensive history of drug use, including methamphetamine, as well as a lengthy criminal history; he was on probation at the time of the dependency hearing in November 2022.
Robert's probation terms prohibited the use of "synthetic drugs or mind-altering substances."
¶3 In May 2022, the Department of Child Safety (DCS) received reports that Robert had physically abused and neglected A.S. In August 2022, DCS reported that Robert had "isolated" A.S., removing him from his regular school and forcing him to attend online school in his bedroom; A.S. generally only left his room to prepare his own meals. It was also reported that A.S.'s hygiene was poor and his "affect was flat." Robert, whose conduct was often "volatile," purportedly due to his methamphetamine use, often remained in his own room. DCS implemented a safety plan in August 2022, making the grandmother the responsible adult in the family home and permitting Robert to live there "only if he maintains sobriety, makes the necessary lifestyle changes to meet [A.S.'s] needs and refra[ins] from any and all volatile behavior."
¶4 Also in August 2022, A.S.'s best interests attorney filed a private dependency petition "requesting DCS take custody of [A.S.] and determine whether an in-home dependency with paternal grandmother as supervising adult . . . is appropriate. In October 2022, DCS filed a substituted dependency petition, alleging that A.S. was dependent as to Robert due to neglect based on substance abuse. DCS asserted that Robert was "unable and/or unwilling to provide [A.S.] with the basic necessities of life" and that his neglect "places [A.S.] at an unreasonable risk of harm."
¶5 In November 2022, at the conclusion of a three-part contested dependency hearing, the juvenile court adjudicated A.S. dependent as to Robert. It determined DCS had proved by a preponderance of the evidence that Robert had neglected A.S. based on his ongoing substance abuse and that he presently did not "appreciate the risk that his substance abuse create[d]" for A.S. Noting that it did not find Robert's testimony credible, the court also found that his substance abuse, "as recently as July of 2022," posed "an on-going substantial and unresolved threat[]" to A.S. and that Robert had repeatedly rejected substance abuse treatment offered by DCS and suggested by his own provider. This appeal followed.
¶6 On appeal, Robert challenges the sufficiency of the evidence to support the dependency. He suggests the dependency adjudication was erroneous in light of the presence of the grandmother in the home, whom he characterizes as a "built-in safety monitor," and maintains he "was taking steps to address" his substance abuse and mental health issues. We review an order adjudicating a child dependent for an abuse of discretion. Shella H. v. Dep't of Child Safety, 239 Ariz. 47, ¶ 13 (App. 2016). In doing so, we defer to the juvenile court's ability to judge the credibility of witnesses, observe the parties, and weigh the evidence. See id. Thus, we will only disturb the court's factual findings if no reasonable evidence supports them. See Louis C. v. Dep't of Child Safety, 237 Ariz. 484, ¶ 12 (App. 2015).
Insofar as Robert asserts that the allegations against him included physical abuse and that DCS failed to prove either abuse or neglect by a preponderance of the evidence, we note that the dependency petition was based on the ground of neglect due to substance abuse and not physical abuse.
¶7 A dependent child is one who is "[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 guardian or any other person having custody or care of the child." A.R.S. § 8-201(15)(a)(i), (iii). "Neglect" means "[t]he inability or unwillingness of a parent, guardian or custodian of a child to provide that child with supervision, food, clothing, shelter or medical care if that inability or unwillingness causes substantial risk of harm to the childs health or welfare." § 8-201(25)(a). DCS must prove the allegations in a dependency proceeding by a preponderance of the evidence based on the circumstances existing at the time of the hearing. A.R.S. § 8-844(C); Ariz. R. P. Juv. Ct. 338(a), (c)(1); Shella H., 239 Ariz. 47, ¶ 12.
¶8 At the dependency hearing, a DCS case manager testified that the grandmother was not following DCS's safety plan and that Robert had not addressed the safety threats that brought A.S. into care. She explained that he had not participated in substance abuse treatment services or individual counseling. She expressed her belief that Robert was using drugs again based on recent reports that he was combative and argumentative. There was also evidence that in November 2022, the grandmother had left A.S. in the home alone with Robert, who was emotionally unstable at the time, while she went to a neighbor's home to call for crisis intervention assistance. The grandmother did not reenter the home for some time after the incident, leaving A.S. alone with Robert the entire time, in violation of the safety plan. The evidence further showed that A.S. was at risk of harm when Robert was in the home even when the grandmother was supervising visits. By acknowledging that he needs a "built-in safety monitor" for when his drug-induced behavior poses a risk to the child, Robert essentially concedes he is unable to provide proper and effective care and control or to safely supervise A.S.
¶9 Robert does not meaningfully challenge the fact that he has a history of substance abuse, that he tested positive for methamphetamine in the months before the hearing, that his behavior in the family home was volatile, that he had an altercation with one of the care providers, and that the grandmother had called crisis intervention because she "felt" he was being "irrational, loud and angry." Yet he denies he has a current problem with methamphetamine and does not believe that his "voluntary" use of substances affects his ability to parent A.S. or that he has neglected him as a result of his substance abuse. In summary, we conclude reasonable evidence supports the juvenile court's findings. See Louis C., 237 Ariz. 484, ¶ 12.
¶10 For all of these reasons, we affirm the juvenile court's order adjudicating A.S. dependent as to Robert.