Larry M. v. ADES, Neil M.
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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 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE ) ) Appellant, ) ) v. ) ) ARIZONA DEPARTMENT OF ECONOMIC ) SECURITY, NEIL M., ) ) Appellees. ) ) __________________________________) DIVISION ONE FILED: 10-12-2010 RUTH WILLINGHAM, ACTING CLERK BY: GH LARRY M., 1 CA-JV 10-0072 DEPARTMENT E MEMORANDUM DECISION (Not for Publication Ariz. R.P. Juv. Ct. 103(G); ARCAP 28) Appeal from the Superior Court of Maricopa County Cause No. JD 507119 The Honorable Mark F. Aceto, Judge AFFIRMED Robert D. Rosanelli Attorney for Appellant Larry M. Phoenix Terry Goddard, Attorney General By Jane A. Butler, Assistant Attorney General Attorneys for Appellee Department of Economic Security T H O M P S O N, Judge ¶1 of Tucson Larry M. (Father) appeals the juvenile court s order March child. 25, 2010, finding his child, Neil M., a dependent After a contested hearing, the juvenile court found by a preponderance of the evidence that the child was dependant as to father pursuant to Arizona Revised Statutes (A.R.S.) 8-201(13) (2007), found the child in need of out-of-home care to protect his welfare, affirmed the case plan and services outlined. case plan is family unification. The Father asserts on appeal that the juvenile court erred in finding his child dependant, arguing that he has addressed his past drug abuse and that he no longer resides with the child s mother. effectively parent this child. ¶2 This court will Father asserts that he can We affirm. not disturb the juvenile court's dependency ruling unless the findings upon which it is based are clearly erroneous and there is no reasonable evidence supporting them. Maricopa County Juv. Action No. J-75482, 111 Ariz. 588, 536 P.2d 197 (1975); Maricopa County Juv. Action No. JS-4130, 132 Ariz. 486, 647 P.2d 184 (App. 1982). The allegations of the petition must be supported by a preponderance of the evidence. Cochise County Juv. Action No. 5666-J, 133 Ariz. 157, 650 P.2d 459 (1982). ¶3 Neil is father s second child born drug exposed. first child was found to be dependant as to father. The During the first dependency, in 2008, father s urine tested positive for methamphetamine and he submitted two additional diluted samples; there were allegations that the urine in question was provided 2 by another child in the household. Neil was born in November 2009 exposed to methamphetamine. In December 2009, father was arrested for attempting pharmacy with a to forged acquire a narcotic drug Father twice prescription. positive for methamphetamine in December 2009. from a tested Previously, in 2007, father had been arrested for possession of cocaine and resisting arrest. Prior to this dependency hearing, father was twice ordered to provide a hair follicle for testing by CPS and he failed to do so. At father s TERROs intake he denied any prior illegal substance use. ¶4 Father asserts that since December submitted clean urine and hair follicle samples. testing was not done through CPS; CPS 2009, he has However, the questions the tests validity both as to the source of the testing and because the urine samples were diluted. The CPS case worker, while recognizing that father has a much improved attitude and that she hopes for reunification, indicated that she still had concerns that father may be using drugs or seeing the child s mother. The mother has a long history of substance abuse and seven referrals to CPS for other children in addition to the two involving father s children. The case worker indicates that a parent using methamphetamine presents significant safety factors in parenting an infant and that they want to see clean drug test 3 done through CPS over a prolonged period of time. ¶5 Finding that a preponderance of the evidence supports the juvenile court s determination, we affirm. /S/ _______________________________ JON W. THOMPSON, Judge CONCURRING: /S/ ________________________________ SHELDON H. WEISBERG, Presiding Judge /S/ _________________________________ PETER B. SWANN, Judge 4
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