GABRIEL J. v. ADES

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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: 2/28/2013 RUTH A. WILLINGHAM, CLERK BY: mjt IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE GABRIEL J., Appellant, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, GABRIEL J., JR., and GIANA J., Appellees. ) ) ) ) ) ) ) ) ) ) ) ) No. 1 CA-JV 12-0233 DEPARTMENT E MEMORANDUM DECISION (Not for Publication Ariz. R.P. Juv. Ct. 103(G); ARCAP 28) Appeal from the Superior Court in Maricopa County Cause No. JD-21275 The Honorable Joan Sinclair, Judge AFFIRMED David W. Bell Attorney for Appellant Mesa Thomas C. Horne, Arizona Attorney General Phoenix By Nicholas Chapman-Hushek, Assistant Attorney General Attorneys for Appellees H A L L, Judge ¶1 Gabriel J. (Father), appeals the juvenile court s order denying his oral motion to return his two minor children to his custody pursuant Juvenile Court (Rule) 59. to the Rules of Procedure for the For the following reasons, we affirm. FACTUAL1 AND PROCEDURAL BACKGROUND ¶2 On Economic January Security 6, (ADES) 2012, filed the a Arizona petition Department that alleged of the children were dependent as to Father and the children s mother, Nicole Kristine Rosner (Mother). was neglecting the substance abuse. children and The petition alleged Father unable to parent due to On March 7, 2012, the juvenile court found the children dependent as to Father and Mother. The juvenile court further found that out-of-home care was necessary to protect the children s welfare, but ordered that Father could visit the children at the home of grandparents. The children were placed in the custody of maternal grandmother. ¶3 At a report and review hearing held on August 17, 2012, Father s attorney orally requested that the children be returned to Father s custody pursuant to Rule 59. On October 4, 2012, the juvenile court held a hearing on Father s motion. The following evidence was presented. 1 We review the evidence and draw all reasonable inferences in the light most favorable to upholding the juvenile court s factual findings. Jesus M. v. Ariz. Dep t of Econ. Sec., 203 Ariz. 278, 282, ¶ 13, 53 P.3d 203, 207 (App. 2002). 2 ¶4 Father is twenty-six years old and began using illegal drugs when he was thirteen. On November 11, 2011, Father was arrested the for driving under influence (DUI) and positive for methamphetamines, morphine, and codeine. thereafter, Father enrolled in an inpatient treatment program called Teen Challenge. tested Shortly substance abuse Father testified that he enjoyed the program and the positive environment. ¶5 In January 2012, Child Protective opened a formal case for the children. Services (CPS) Because Father submitted random urinalysis (UA) at Teen Challenge, CPS did not require him to participate in drug testing at TASC. On May 22, 2012, after participating in Teen Challenge for several months, Father was expelled from the program because he submitted two UAs that tested positive for opiates. The same day, Father voluntarily submitted a UA to TASC, which tested negative. The next day, Father at voluntarily provided a hair Laboratories that also tested negative. sample Southwest Father testified that the Teen Challenge UAs were false positives, as demonstrated by the negative UAs submitted to TASC on the same day and Southwest Laboratories the following day. ¶6 Father acknowledged that, after he was removed from the Teen Challenge program and required to submit UAs to TASC, he failed explained to that do so on nobody s at least perfect. 3 three occasions. Father also Father acknowledged that, following his expulsion, Teen Challenge sent him a letter welcoming him to return to the program and start anew, and he chose not to re-enter the program. Father testified that he has not used drugs since November 11, 2011, the date of his DUI arrest. ¶7 When children, questioned Father admitted about that his he relationship missed a with visit the with his children because he chose to go on a hunting trip during a scheduled visit. He also admitted that he is only purchasing items for the children one or two times a month and that he has not provided the items maternal grandmother has requested. ¶8 The case manager assigned to the case, Delores Floyd, testified that Father was dismissed from his inpatient substance abuse treatment program at Teen Challenge because he submitted to two UAs that tested positive for opiates. Floyd acknowledged that Father did not submit any positive UAs to TASC, but noted that Father did fail to provide mandatory UAs on at least three occasions, which are deemed positive tests by ADES. also opined substance that abuse a person needs to with a demonstrate substantial sobriety Floyd history for at of least twelve to fifteen months before children can be safely returned to his care. Accordingly, Floyd testified that she believes Father s short-lived sobriety is insufficient to remove the 4 substantial risk to the children presented by his extensive history of drug abuse. ¶9 After taking the matter under advisement, the juvenile court denied Father s Rule 59 motion, stating in relevant part: The Court believes the children are still at risk for abuse or neglect due to father s longstanding substance abuse problem if returned to him at this time. He needs to complete a substance abuse program and continue to demonstrate sobriety. ¶10 Father timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) section 8-235 (2007) and Rule 103(A) of the Arizona Rules of Procedure for the Juvenile Court. DISCUSSION ¶11 Juvenile placing a courts dependent have child substantial because the consideration is the child s best interest. discretion court s when primary See Antonio P. v. Ariz. Dep t of Econ. Sec., 218 Ariz. 402, 404, ¶ 8, 187 P.3d 1115, 1117 (App. 2008). This court therefore reviews the juvenile court s placement order for a dependent child for an abuse of discretion. Antonio P., 218 Ariz. at 404, ¶ 8, 187 P.3d at 1117. ¶12 The juvenile court is in the best position to weigh the evidence, judge the credibility of the parties, observe the parties, and make factual findings. Pima County Dependency Action No. 93511, 154 Ariz. 543, 546, 744 P.2d 455, 458 (App. 5 1987). to Therefore, we do not reweigh the evidence, but look only determine if court s ruling. there is evidence to support the juvenile Maricopa County Juv. Action No. JV-132905, 186 Ariz. 607, 609, 925 P.2d 748, 750 (App. 1996). We will uphold the juvenile court s ruling absent an abuse of discretion or unless the court s findings of fact were clearly i.e., there is no reasonable evidence to support them. ¶13 erroneous, Id. Pursuant to A.R.S. § 8-514(B) (2007), a child shall be placed in the least restrictive type of placement available, consistent with the needs of the child. As set forth in subsections 1-3, the order of placement preference is: (1) with a parent, (2) with a grandparent, (3) with another member of the child s extended statute clearly states family. that preference, not a mandate. 187 P.3d at 1118. the A.R.S. order § 8-514(B). of placement The is a Antonio P., 218 Ariz. at 405, ¶ 12, Section 8-514(B) provides the juvenile court with the legislature s preference for where or with whom a child is placed but it does not mandate that the order of preference be strictly followed when a placement is not consistent with the needs of the child. Id. Instead, [t]he statute requires only that the court include placement preference in its analysis of what is in the child s best interest. ¶14 Id. As set forth in Rule 59, a parent may file a motion with the court requesting return of the child to the custody of 6 the parent[.] Upon the filing of such a request, [t]he court shall set a hearing to determine whether return of the child would create a substantial risk of harm to the child s physical, mental or emotional health or safety. 59(A). Ariz. R.P. Juv. Ct. The court shall return the child to the parent if the court finds, by a preponderance of the evidence that return of the child would not create a substantial risk of harm to the child s physical, mental or emotional health or safety[.] Ariz. R.P. Juv. Ct. 59(E). ¶15 Here, Father testified that he used illegal drugs for thirteen years, half of his life. He presented evidence demonstrating that he has made efforts to achieve sobriety by participating in a drug abuse treatment program. He was removed from that program, however, after submitting two UAs that tested positive for opiates. Teen Challenge UAs Although Father contends that the two were false positives, and he introduced evidence of two negative drug tests taken the same day and the day following the Teen Challenge positive UAs, it was for the juvenile court, as the fact-finder, to determine the weight and credibility of the evidence. Moreover, Father acknowledged that he chose not to re-enter the Teen Challenge program and he has not completed any other drug abuse treatment program. Father also failed to submit three required UAs to TASC, which are deemed positive tests, and missed numerous mandatory telephone 7 calls to TASC to determine whether testing was required. We therefore to support conclude the there juvenile was court s ample finding reasonable that the evidence children are still at risk for abuse or neglect if returned to Father s custody at this time and the court did not abuse its discretion by denying Father s Rule 59 motion. CONCLUSION ¶16 For the foregoing reasons, we affirm the juvenile court. _/s/______________________________ PHILIP HALL, Judge CONCURRING: _/s/___________________________________ MARGARET H. DOWNIE, Presiding Judge _/s/___________________________________ MAURICE PORTLEY, Judge 8

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