Edward B v. ADES/Edward B

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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 DIVISION ONE FILED: 04/10/2012 RUTH A. WILLINGHAM, CLERK BY: sls IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE EDWARD B., ) ) Appellant, ) ) v. ) ) ARIZONA DEPARTMENT OF ECONOMIC ) SECURITY, EDWARD B., ) ) Appellees. ) ) __________________________________) 1 CA-JV 11-0235 DEPARTMENT A MEMORANDUM DECISION (Not for Publication 103(G), Ariz.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. JD20409 The Honorable Aimee L. Anderson, Judge AFFIRMED Robert D. Rosanelli, Attorney at Law by Robert D. Rosanelli Attorney for Appellant Phoenix Thomas C. Horne, Attorney General Phoenix by Michael F. Valenzuela, Assistant Attorney General Attorneys for Appellee Arizona Department of Economic Security P O R T L E Y, Judge ¶1 his Edward son is B. ( Father ) dependent dependency case plan. and appeals the the determination termination of the that in-home For the following reasons, we affirm. FACTUAL 1 AND PROCEDURAL BACKGROUND ¶2 The Arizona Department of Economic Security s ( DES ) Child Protective Services took the newborn into its custody in June 2011 because both he and J.G. 2 ( Mother ) tested positive for methamphetamine. alleged that DES Father, filed while a living dependency with petition Mother and during the pregnancy and being aware of her drug addiction, neglected his child by failing to protect the child from Mother s substance abuse while action. pregnant The court with set the a child. Father dependency hearing contested and, at the DES s request, placed the child with Father. ¶3 about At the hearing, Father testified that he found out Mother s methamphetamine reconnected in August 2010. use shortly after they He, however, believed that she had stopped using drugs before she learned she was pregnant. She moved in with him two weeks later, but moved out approximately one month before the child was born. until she testified reappeared he was two surprised days to They had limited contact before learn the that birth. his son Father was born substance-exposed, and that he had not had unauthorized contact 1 On review of an adjudication of dependency, we view 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) (citation omitted). 2 Mother has not appealed the dependency ruling. 2 with Mother providing a since safe the home birth. In environment addition for his to son, working he had and been following the case plan and other instructions from DES. ¶4 The case manager testified that because Father had not disclosed his aliases, DES did not know his complete criminal history when it endorsed the physical custody arrangement. 3 Father also did not notify DES about a September 2011 criminal complaint or his subsequent arrest. Nevertheless, DES had no concerns about his parenting skills so long as services remained in place and additional services were added, as necessary. The case manager testified there was nothing Father could have done to protect the unborn child other than to encourage Mother to enter a substance abuse program if he knew she was using drugs. And, although DES was concerned about Father allegedly allowing Mother to have unsupervised visits, the case manager continued to support the in-home dependency [b]ecause the services that we have had in place are working. 4 ¶5 After considering the testimony and exhibits, the court found that Mother used methamphetamine for the first four 3 Father had only disclosed two of his six prior felony convictions. While the case manager would not have recommended that Father receive physical custody if he had known Father s entire criminal history, he supported continuing the in-home dependency based on Father s parenting abilities and bonding with the child. 4 The case manager testified that the child was safe in Father s care so long as DES remained involved. 3 months of her pregnancy, and that Father: knew about her drug use history; forced her to move out when she was eight months pregnant, which increased the child s risk of drug exposure; and has a significant history of placing children at risk of abuse and neglect. dependent. Consequently, the court found that the child was The court then set aside the in-home dependency, returned physical custody to DES, and changed the case plan to family reunification concurrent with severance and adoption. ¶6 We have jurisdiction over Father s appeal pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes ( A.R.S. ) sections 8-235(A) (West 2012) and 12-2101(B) (West 2012). 5 DISCUSSION ¶7 his Father argues that the court erred when it found that son order. was dependent and rescinded the in-home dependency We review dependency and placement orders for an abuse of discretion, and will affirm if the court s factual findings are supported by the evidence and not clearly erroneous. Pima Cnty. Juv. Dependency Action No. 118537, 185 Ariz. 77, 79, 912 5 DES argues that Father s appeal is moot because he did not appeal the subsequent review hearing where the court affirmed the dependency and case plan. We reject the argument. Although an order reaffirming a dependency finding is a final order, Yavapai Cnty. Juv. Action No. J-8545, DES does not cite any authority for the proposition that a determination made at a review hearing supersedes the initial adjudication. 140 Ariz. 10, 14, 680 P.2d 146, 150 (1984). Consequently, the appeal is not moot. 4 P.2d 1306, 1308 (App. 1994) (citations omitted); Antonio P. v. Ariz. Dep t of Econ. Sec., 218 Ariz. 402, 404, ¶ 8, 187 P.3d 1115, 1117 (App. 2008) (citation omitted). We review any legal issue involving statutory interpretation or other question of law de novo. Ariz. Dep t of Econ. Sec. v. Superior Court (Chavez), 186 Ariz. 405, 408, 923 P.2d 871, 874 (App. 1996) (citation omitted). I. Dependency Finding ¶8 Father argues that the dependency ruling was clearly erroneous because it was not supported by substantial evidence. We disagree. ¶9 The juvenile court is vested with considerable discretion to determine whether dependency is in a child s best interest. See Willie G. v. Ariz. Dep t of Econ. Sec., 211 Ariz. 231, ¶ 235, omitted). 21, 119 P.3d 1034, 1038 (App. 2005) (citations A dependent child is one whose home is unfit by reason of abuse, neglect, cruelty or depravity by a parent, a guardian child. ¶10 or any other person having custody or care of the A.R.S. § 8-201(13)(a)(iii) (West 2012). 6 Despite Father s belief that Mother did not use drugs after learning she was pregnant, Mother reported that she used drugs during the first four months of her pregnancy and the 6 We cite the current version of the applicable statute because no revisions material to this decision have occurred since the hearing and order. 5 medical evidence indicated that she was about pregnant when they learned that she was pregnant. two months Father knew about her drug abuse history, knew that she had used drugs since they began to see each other, and did not attempt to ensure that she would not continue to use drugs after they discovered she was pregnant. He also placed her in a position which, more than likely, compelled her to return to a drug environment and use drugs; namely, that toward the end of her pregnancy, he decided that her other children could no longer visit with her at his sister s house, where they were staying. As a result of his decision, she left until just days before giving birth and, in the meantime, exposed their unborn child to methamphetamine. ¶11 Furthermore, although the case manager was sympathetic, he testified he was unsure whether Father could adequately care for his son without DES s involvement. He also noted that Father was not candid with DES about the extent of his criminal history, which included acts of domestic violence. The court considered all of the evidence and 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) (citation omitted). The court determined that DES had proven its case by a preponderance of the evidence. See Pima Cnty. Juv. Dependency Action No. 118537, 6 185 Ariz. at 79, 912 P.2d at 1308 (citation omitted). Because we defer to the court s factual findings, we do not find that the dependency finding was an abuse of discretion. See Oscar O., 209 Ariz. at 334, ¶ 4, 100 P.3d at 945 (citation omitted). II. Placement Order ¶12 Father next argues that the rescinded the in-home dependency order. ¶13 The court set aside the court erred when it We disagree. order because Father had withheld alias information that prevented DES from discovering the full extent of his criminal history, and had not disclosed the 2011 criminal complaint or his subsequent arrest. 7 The court also considered evidence that he had allowed his sister to have weekend visits with the newborn without DES authorization. As a result, sufficient evidence supported the court s decision to remove the child from Father s custody. See Antonio P., 218 Ariz. at 404, ¶ 8, 187 P.3d at 1117 (citation omitted) (juvenile court has substantial discretion to determine best placement for dependent child); Maricopa Cnty. Juv. Action No. JD-6236, 178 Ariz. 449, omitted) 451, 874 P.2d 1006, (same); see also A.R.S. 1008 § (App. 1994) 8-845(A)(6) (citation (West 2012) (court may award dependent child [t]o an appropriate public or 7 Contrary to his argument that the court improperly considered the pending charges, the court specifically said that it was not concerned about criminal charges that he may be facing. 7 private agency licensed to care for children ). We find no error. CONCLUSION ¶14 Based on the foregoing, the dependency and placement orders of the juvenile court are affirmed. /s/ ________________________________ MAURICE PORTLEY, Presiding Judge CONCURRING: /s/ ________________________________ ANN A. SCOTT TIMMER, Judge /s/ ________________________________ ANDREW W. GOULD, Judge 8

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