Lenore S. v. Dcs, S.H. ( 2016 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
LENORE S., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, S.H., Appellees.
No. 1 CA-JV 15-0347
FILED 4-26-2016
Appeal from the Superior Court in Maricopa County
No. JD28323
The Honorable Shellie F. Smith, Judge Pro Tem
AFFIRMED
COUNSEL
Robert D. Rosanelli, Phoenix
By Robert D. Rosanelli
Counsel for Appellant
Arizona Attorney General’s Office, Phoenix
By Amber E. Pershon
Counsel for Appellees
LENORE S. v. DCS, S.H.
Decision of the Court
MEMORANDUM DECISION
Judge Randall M. Howe delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani and Judge Peter B. Swann joined.
H O W E, Judge:
¶1 Lenore S. (“Grandmother”) appeals the determination that
her granddaughter, S.H., is a dependent child. For the following reasons,
we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 In November 2014, Stacy H. (“Mother”) gave birth to S.H. in
a Nevada hospital. Grandmother told a hospital staff member that Mother
already had a baby in the care of the Arizona Department of Child Safety
(“Department”); the staff member called Nevada Child Protective Services
(“Nevada CPS”). A Nevada CPS case manager went to the hospital, and
Grandmother told the individual that Mother could not care for the baby.
With Mother’s permission, Grandmother obtained guardianship of S.H.
Two weeks later, Mother disappeared.
¶3 In April 2015, Grandmother returned to Arizona to visit
family, bringing five-month-old S.H. and two of her minor children with
her. But within a day of their arrival, Grandmother received a call that she
had an eviction notice for her apartment in Las Vegas. Grandmother left the
children with her family, including her ex-husband (“Grandfather”) and
her mother (“Great Grandmother”). Grandmother told them that she
would be back in a few days and then took a bus to Las Vegas.
¶4 Once Grandmother arrived in Nevada, she received a call
from her 19-year-old son, telling her that she needed to return to Arizona
immediately because the Department had taken S.H. On the day
Grandmother left for Nevada, Grandfather, who worked as a security
guard at a nightclub, had to go to work. Grandfather called Prince Z.
(“alleged Father”) to watch the baby.1 While S.H. was in the alleged Father’s
1 Prince Z. subsequently took a paternity test and was determined not
to be S.H.’s father, and the juvenile court dismissed him from the case. The
court later adjudicated S.H. dependent from John Doe, an unknown father.
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LENORE S. v. DCS, S.H.
Decision of the Court
care that night, the alleged Father fell asleep at the wheel and was
ultimately arrested for driving while under the influence with a blood
alcohol concentration (“BAC”) level of 0.124 and on a suspended license.
The next day, the Department responded to the listed address it had on file
for the alleged Father and found S.H. with her uncle, Grandmother’s
19-year-old son. The alleged Father was on his way to the motel to visit S.H.
Grandmother returned to Arizona six days later.
¶5 The Department placed S.H. with a foster family and
petitioned for dependency, alleging that Grandmother neglected S.H. by
failing to provide proper supervision for her and to protect the baby from
an unreasonable risk of harm. After a contested dependency hearing, the
juvenile court adjudicated S.H. a dependent child. The court found that
Grandmother was “vague on the details regarding what, if any,
arrangements were made with ex-husband for the care of a small infant and
two other minor children” when she left for Las Vegas. The court also found
that although Grandmother was aware that the alleged Father was arrested,
she did not return to Arizona to care for S.H. for several days. Grandmother
timely appealed.
DISCUSSION
¶6 Grandmother argues that insufficient evidence supports the
juvenile court’s dependency determination. We will not disturb the juvenile
court’s ruling in a dependency action unless the findings upon which it is
based are clearly erroneous and no reasonable evidence supports them.
Oscar F. v. Dep’t of Child Safety, 235 Ariz. 266, 267–68 ¶ 6, 330 P.3d 1023,
1024–25 (App. 2014). But we review de novo the court’s interpretation and
application of the dependency statute. Id. The juvenile court, as the trier of
fact, is “in the best position to weigh the evidence, judge the credibility of
the parties, observe the parties, and make appropriate factual findings.”
Pima Cty. Dependency Action No. 93511, 154 Ariz. 543, 546, 744 P.2d 455, 458
(App. 1987). Thus, the resolution of conflicting evidence is within the
unique province of the juvenile court, and we will not reweigh the evidence.
Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 47 ¶ 8, 83 P.3d 43, 47
(App. 2004). Here, sufficient evidence supports the juvenile court’s
dependency determination.
¶7 Before a child can be found dependent, the Department must
prove by a preponderance of the evidence the allegations set forth in the
dependency petition. A.R.S. § 8–844(C)(1); Louis C. v. Dep’t of Child Safety,
J.C., 237 Ariz. 484, 488 ¶ 13, 353 P.3d 364, 368 (App. 2015). A “dependent
child” is a child “[i]n need of proper and effective parental care and control
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LENORE S. v. DCS, S.H.
Decision of the Court
and who has no [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 [guardian].” A.R.S. § 8–201(14)(a)(i), (iii).
“Neglect” is the “inability or unwillingness of a [guardian] of a child to
provide that child with supervision, food, clothing, shelter or medical care
if that inability or unwillingness causes unreasonable risk of harm to the
child’s health or welfare.” A.R.S. § 8–201(24)(a). An adjudication of
dependency does not require a finding of fault on the guardian’s part,
Matter of Appeal in Santa Cruz Cty. Juvenile Dependency Action Nos. JD-89-006
& JD-89-007, 167 Ariz. 98, 102, 804 P.2d 827, 831 (App. 1990); instead, the
primary consideration is the child’s best interests, Michael M. v. Ariz. Dep’t
of Econ. Sec., 217 Ariz. 230, 234 ¶ 17, 172 P.3d 418, 422 (App. 2007).
¶8 Here, sufficient evidence supports the juvenile court’s order
adjudicating S.H. a dependent child. The record shows that Grandmother
failed to make any specific arrangement for S.H.’s care when she left for
Nevada and that, specifically during her testimony, Grandmother was
vague about the details regarding what arrangements, if any, she had made
with Grandfather or Great Grandmother for S.H.’s and her two other minor
children’s care. The record also shows that Grandmother failed to ensure
that an appropriate caregiver would be available to look after S.H. at all
times. Although Grandmother claimed that she left S.H. in Grandfather’s
care, she also stated that S.H.’s caregiver was decided on a voluntary basis
and that she was not the decision-maker. She also admitted that she knew
that Grandfather worked at a nightclub, but claimed that because
“everyone [in the family] was together” and that she “wasn’t there,” the
decision-making regarding who would care for S.H. was left to whoever
was present at that moment.
¶9 The record further shows that Grandmother’s failure to
arrange proper supervision or delineate the details for S.H.’s care resulted
in an unreasonable risk of harm to the five-month-old baby. When
Grandfather went to work, he left the baby with the alleged Father, who
then drove with a BAC level of 0.124 with S.H. in the car. A witness
described the alleged Father as “passed-out” at the wheel. Moreover, even
after Grandmother learned of the DUI incident, she failed to return to
Arizona and instead stayed for another six days and failed to arrange for
appropriate care for S.H. while she was away. When the Department
removed S.H., the baby was in the alleged Father’s motel room with her
uncle with Grandfather’s permission; they were waiting for the alleged
Father. Grandmother testified that although Grandfather had a lapse in
judgment on two occasions for allowing the alleged Father to have access
to S.H., she would nonetheless trust him to care for her children and S.H.
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LENORE S. v. DCS, S.H.
Decision of the Court
again. Consequently, sufficient evidence supports the juvenile court’s order
adjudicating S.H. a dependent child because Grandmother neglected the
baby by failing to provide proper supervision and to protect the baby from
an unreasonable risk of harm.
CONCLUSION
¶10 For the foregoing reasons, we affirm.
:ama
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