Opinion
No. 2 CA-JV 2014-0128
01-29-2015
PATRICK O., Appellant, v. DEPARTMENT OF CHILD SAFETY AND M.O., Appellees.
COUNSEL Sarah Michèle Martin, Tucson Counsel for Appellant Mark Brnovich, Arizona Attorney General By Laura J. Huff, 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NOT FOR PUBLICATION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. JD179877
The Honorable Catherine M. Woods, Judge
AFFIRMED
COUNSEL Sarah Michèle Martin, Tucson
Counsel for Appellant
Mark Brnovich, Arizona Attorney General
By Laura J. Huff, Assistant Attorney General, Tucson
Counsel for Appellee Department of Child Safety
MEMORANDUM DECISION
Judge Howard authored the decision of the Court, in which Presiding Judge Kelly and Judge Vásquez concurred. HOWARD, Judge:
¶1 Patrick O. appeals from the juvenile court's March 2014 order adjudicating his eight-year-old son, M.O., a dependent child on the ground of Patrick's unwillingness or inability to protect M.O. from the mother's neglect. For the reasons that follow, we affirm.
Patrick and the mother are not married. M.O. was also adjudicated dependent as to the mother, who is not a party to this appeal.
¶2 M.O. was adjudicated dependent as to both parents in 2006 based in part on the mother's substance abuse. In 2010, after the mother, who was M.O.'s sole caregiver, was "found intoxicated and going in and out of consciousness," M.O. was again found dependent as to her. Pursuant to a stipulated custody agreement and based on the mother's admitted history of substance abuse, Patrick was then awarded joint legal and primary physical custody of M.O., with supervised visitation for the mother until she attained "a significant period of sobriety," when she would resume primary physical custody.
Patrick is a long-haul truck driver and is frequently away from home for extended periods of time.
¶3 In September 2013, a neighbor called the police for assistance because M.O., who had been left unsupervised, was unable to enter the family home where the mother was "found to be semi-unconscious due to alcohol and sleeping medication." The neighbor reported that the mother, who was often intoxicated, had driven a vehicle while intoxicated on other occasions, and that M.O. had told the neighbor "his mom is always drinking alcohol." M.O. was placed with his maternal grandmother, who advised officers "she was familiar with what was going on" and "it was not the first time she had to get [M.O.]."
Patrick was out of town for work when the incident occurred.
¶4 The Department of Child Safety (DCS) filed a dependency petition as to both parents in 2013, alleging as to Patrick that he had "failed to protect [M.O.] from neglect in the mother's home" and that he was "aware of the mother's substance abuse but has continued to leave [M.O.] in her care." The petition incorporated by reference the 2010 dependency petition, including allegations regarding the mother's ongoing substance abuse, domestic violence in the home, and Patrick's "failure to protect" M.O. The author of a 2013 report prepared for the preliminary protective hearing noted that although Patrick "denied that the mother has a current issue with alcohol," he had instituted a plan "where [M.O.] knows phone numbers to call [for help] when the mother is intoxicated." The author of the report thus concluded, "[i]t is evident that [Patrick] is aware that [mother] still has issues with alcohol, yet he leaves [M.O.] with the mother for extended periods of time."
The Department of Child Safety is substituted for the Arizona Department of Economic Security in this decision. See 2014 Ariz. Sess. Laws, 2nd Spec. Sess., ch. 1, § 20.
¶5 The mother admitted to the dependency, and M.O. was adjudicated dependent as to her on the first day of a contested dependency hearing that spanned three days in March 2014. At the conclusion of the hearing, the juvenile court adjudicated M.O. dependent as to Patrick, a decision it rendered after considering "the statements and arguments of counsel, the sworn testimony of all of the witnesses, the credibility of the witnesses and . . . all of the evidence." The court explained its reasoning as follows:
[B]ecause of [Patrick's] employment obligations, which cause him to be out of town and [unable] . . . to properly and effectively supervise [M.O.] for extended periods of time, he is presently unable to properly and effectively parent [M.O.] and [M.O.] lacks another parent who is now able to properly and effectively parent.
In making these findings, I am persuaded that the mother has unresolved substance abuse issues that are longstanding, and that [Patrick] either knew or should have known, upon reasonable inquiry, that the mother was abusing substances which impaired her ability to properly and effectively parent [M.O.] while [Patrick] was gone from home, and [Patrick] failed to take appropriate actions to protect [M.O.] from the mother's neglect while he was gone, all of which caused an unreasonable risk of harm to [M.O.'s] health, safety and welfare.
. . . .
I was persuaded in Exhibit 4, which was admitted into evidence without objection, that the mother is always drinking alcohol and has been in a[n impaired] state more than once before September 18 when she was not able to parent [M.O.] so that the neighbor welcomed him into the home. All of this leads me to believe that this was not a onetime incident on September 18. This appeared to be an ongoing pattern that was known to the neighbors, it was known to
[M.O., M.O.] had expressed it to at least one other individual.
So, for all of these reasons, I am finding that [Patrick], because of his employment duties, is presently unable to properly and effectively protect [M.O.] from the mother's neglect.
I am finding that the proposed stipulation for custody [with the maternal grandmother] and visitation is not going to solve this problem. It purports to rely on a third party who is not a party to this action. The court has no jurisdiction to force any third party to carry out any responsibilities of supervising the mother and her parenting time with [M.O.], and [Patrick] has shown between 2010 and the present that he was either unwilling or unable to make suitable arrangements with a third party to properly have [M.O.] supervised while he was gone from the home.
The proposed stipulation provided for primary physical custody with Patrick and "no unsupervised contact [for the mother] until such time as mother [and Patrick] agree that the mother completed substance abuse treatment and maintained six months of sobriety." The agreement also provided for "some parenting time for mother supervised by [Patrick] or grandmother."
¶6 We review a dependency adjudication for an abuse of discretion, and we will affirm an adjudication order supported by reasonable evidence, as viewed in the light most favorable to sustaining the juvenile court's findings. Willie G. v. Ariz. Dep't of Econ. Sec., 211 Ariz. 231, ¶ 21, 119 P.3d 1034, 1038 (App. 2005). We review de novo questions of law, including the interpretation of a statute or procedural rule. See Oscar F. v. Dep't of Child Safety, 235 Ariz. 266, ¶ 6, 330 P.3d 1023, 1025 (App. 2014).
¶7 On appeal, Patrick argues M.O. is not a dependent child because a dependency finding requires "evidence that there has been damage to the child" and DCS failed to allege, much less prove, that M.O. had been damaged. Under A.R.S. § 8-201(14)(a)(i), a "[d]ependent child" is defined as 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." A dependent child is also defined as one "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(14)(a)(iii); see also A.R.S. § 8-844(C)(1) (preponderance standard). "Neglect" is defined, in relevant part, as "[t]he inability or unwillingness of a parent . . . of a child to provide that child with supervision . . . if that inability or unwillingness causes unreasonable risk of harm to the child's health or welfare." A.R.S. § 8-201(24)(a).
In support of his argument, Patrick asserts the attorney for M.O. "states that it is [M.O.'s] position . . . that there is no dependency as to [Patrick] and that he feels safe in his father's custody." This information, however, is not necessarily relevant to or dispositive of his challenge to the dependency.
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¶8 We agree with DCS that § 8-201(14)(i), (iii) does not require "damage" to the child, and thus find the absence of such a finding unpersuasive. Moreover, reasonable evidence supports the juvenile court's adjudication of dependency based on the unavailability of a parent willing or able to exercise proper and effective parental care and control over M.O., and Patrick's inability or unwillingness to provide adequate supervision to protect M.O. from the mother's neglect, resulting in an unreasonable risk of harm to him. See A.R.S. § 8-201(14)(i), (iii) and (24)(a).
¶9 The record contains reasonable evidence supporting the juvenile court's dependency adjudication, including the fact of two prior dependency adjudications as to the mother; the mother's admission that she had ongoing substance abuse problems and her acknowledgement she was unable to effectively parent M.O. on her own while Patrick was away; and the mother's admission to a DCS investigator "that between 2010 and 2013 she had had more than one try at alcohol[-]related substance abuse treatment," which the investigator testified she believed had been unsuccessful. Additionally, the investigator testified that the mother had acknowledged her ongoing problem with alcohol, Patrick had stated he was aware of the mother's history of alcohol abuse, and M.O. had reported his parents had given him instructions on what to do "if he couldn't wake his mother up."
¶10 Although Patrick denied during the 2013 investigation that the mother had a "current" drinking problem, he nonetheless acknowledged he had given M.O. instructions on what to do "if there was an issue with his mom," suggesting he was aware the mother might not be able to care for M.O. when he was away. Patrick, however, also testified that he had spoken to the mother at least eight times from the road on the day of the September 2013 incident, and had noted no signs she had been consuming alcohol. Accordingly, despite the fact that Patrick either knew or should have known about the mother's ongoing drinking problem and despite his having agreed in the 2010 dependency to protect M.O. from the mother's neglect, he left M.O. alone with the mother, placing him at unreasonable risk of harm. See A.R.S. § 8-201(24)(a); see also In re Santa Cruz Cnty. Juv. Action Nos. JD-89-006 & JD-89-007, 167 Ariz. 98, 102, 804 P.2d 827, 831 (App. 1990) (focus of definition of dependency "is not on the conduct of the parents but rather the status of the child").
¶11 To the extent there were conflicts in the evidence it was for the juvenile court, not this court, to resolve them, because it is "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, ¶ 4, 100 P.3d 943, 945 (App. 2004); see also In re Pima Cnty. Juv. Action No. 93511, 154 Ariz. 543, 546, 744 P.2d 455, 458 (App. 1987) (as fact-finder, juvenile court in best position to weigh evidence and judge credibility of witnesses). And, to the extent Patrick asks us to reweigh the evidence, we will not do so. See Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, ¶ 12, 53 P.3d 203, 207 (App. 2002). Additionally, to the extent Patrick asserts the court placed undue emphasis on his choice of employment, we note that the court necessarily had to consider Patrick's absence from the home, which in fact is related to his job, when determining whether he was able or willing to protect M.O. from the mother's neglect.
¶12 Finally, Patrick also asserts the juvenile court erroneously ignored the "domestic relations order" involving the grandmother, which he maintains would have resolved the court's concern regarding M.O.'s safety and care. Notably, although Patrick argues the agreement "was approved by the domestic relations division of the Superior Court," he fails to direct us to any portion of the record establishing this fact. Moreover, the agreement was signed only by Patrick and the mother, not by the grandmother, who would have been responsible for M.O.'s care pursuant to the terms of the agreement. For the reasons relied upon by the court, as set forth above, we conclude it correctly determined the stipulated agreement would not "solve [the] problem."
¶13 For all of the foregoing reasons, we affirm the juvenile court's adjudication order.