In Re Dependency as to A.Y. and G.Y. ( 2023 )


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  •                       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    UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
    IN RE DEPENDENCY AS TO A.Y. and G.Y.
    No. 1 CA-JV 23-0052
    FILED 8-10-2023
    Appeal from the Superior Court in Maricopa County
    No. JD41678
    The Honorable Gregory Como, Judge
    AFFIRMED
    COUNSEL
    Maricopa County Public Advocate, Mesa
    By Suzanne W. Sanchez
    Counsel for Appellant
    Arizona Attorney General's Office, Mesa
    By Emily M. Stokes
    Counsel for Appellee
    MEMORANDUM DECISION
    Presiding Judge James B. Morse Jr. delivered the decision of the Court, in
    which Judge Cynthia J. Bailey and Judge Brian Y. Furuya joined.
    IN RE DEPENDENCY AS TO A.Y. and G.Y.
    Decision of the Court
    M O R S E, Judge:
    ¶1           Brent Y. ("Father") appeals the superior court's order
    adjudicating his children A.Y. and G.Y. dependent. For the following
    reasons, we affirm.
    FACTS AND PROCEDURAL BACKGROUND
    ¶2            "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 (App.
    2005). Britney P. ("Mother") did not challenge the dependency order and is
    not a party to this appeal.
    ¶3             In 2013, Father and Mother lost a son to cancer. Following the
    loss of their son, Mother began taking anti-depressants, and Father began
    abusing Tramadol, a narcotic drug prescribed to him for back and shoulder
    pain.
    ¶4           In 2014, Aurora Health Care began treating Father for
    substance abuse. Following his treatment, Father received a prescription
    for suboxone to assist in the treatment of his Tramadol addiction, and for
    pain management.
    First Dependency
    ¶5           In April 2022, A.Y. and G.Y.'s maternal grandmother
    ("Grandmother") filed a dependency petition, alleging that Father and
    Mother were unable to parent based on substance abuse, mental health, and
    neglect grounds. Specifically, Grandmother alleged that Father and Mother
    abused substances and could not provide stable housing. The Department
    of Child Safety ("DCS") received a report about Grandmother's private
    dependency petition and moved to intervene. The superior court granted
    DCS's motion.
    ¶6             In June 2022, the superior court held a dependency trial.
    During the trial, a DCS case manager testified that G.Y. said Grandmother
    had told him that his parents "snort drugs." The case manager also
    acknowledged that Father and Mother were leasing an apartment. Based
    on these facts, the superior court dismissed the petition. The court observed
    that "[Father] does have housing [and] the children . . . would not be living
    on the street." When considering the substance-abuse allegations, the court
    stated, "the evidence that was actually presented about drug use, it's very,
    very thin" and based only on "what [G.Y.'s] grandmother told him, not what
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    IN RE DEPENDENCY AS TO A.Y. and G.Y.
    Decision of the Court
    he observed." In response to Father's refusal to comply with the court's
    drug-testing order, the court found that, without more, a missed drug test
    was not sufficient to satisfy the burden of proof.
    Second Dependency
    ¶7            Fifty-one days after the superior court dismissed the
    dependency petition, DCS brought a second petition on substance abuse,
    mental health, and neglect grounds. But DCS further alleged that shortly
    after the dismissal of the first petition, Father and Mother were forcibly
    evicted from their apartment, and that both children had witnessed their
    "parents snorting white pills."
    ¶8            DCS referred Father for services, including periodic drug
    testing, and requested that Father sign a release for his medical records.
    Father did not complete the drug testing and refused to sign any releases,
    leading DCS to move for a court order for Father's medical records. The
    superior court granted the motion, but DCS never requested the records.
    ¶9             The superior court held the second dependency trial. Mother
    failed to attend the trial, and Father attended telephonically. At the trial's
    conclusion, the superior court found A.Y. and G.Y. dependent as to both
    parents on the substance-abuse and neglect grounds. The superior court
    also included findings that "Father's testimony . . . has not been very
    credible."
    ¶10           After the deadline to appeal had expired, Father moved the
    superior court for more time to file an appeal. The superior court granted
    the motion. Father timely appealed, and we have jurisdiction under A.R.S.
    §§ 8-235(A), 12-120.21(A)(1), and -2101(A)(1).
    DISCUSSION
    ¶11           Father argues that DCS presented insufficient evidence to
    establish that drug abuse rendered him unable to parent his children
    effectively. We review the superior court's decisions for an abuse of
    discretion and will affirm unless no reasonable evidence supports the
    court's findings. Louis C. v. Dep't of Child Safety, 
    237 Ariz. 484
    , 488, ¶ 12
    (App. 2015); Bob H. v. Ariz. Dep't of Econ. Sec., 
    225 Ariz. 279
    , 281, ¶ 9 (App.
    2010). The superior court must find a child dependent by a preponderance
    of the evidence and "must consider the circumstances as they exist at the
    time of the dependency adjudication hearing in determining whether a
    child is a dependent child." Shella H. v. Dep't of Child Safety, 
    239 Ariz. 47
    , 48,
    ¶ 1 (App. 2016); Louis C., 237 Ariz. at 490, ¶ 23.
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    IN RE DEPENDENCY AS TO A.Y. and G.Y.
    Decision of the Court
    ¶12           The superior court "is in the best position to weigh the
    evidence, observe the parties, judge the credibility of the witnesses, and
    resolve disputed facts." Ariz. Dep't of Econ. Sec. v. Oscar O., 
    209 Ariz. 332
    ,
    334, ¶ 4 (App. 2004). We agree with the superior court that the evidence "is
    not particularly strong in this case," but affirm because there is reasonable
    evidence to show, by a preponderance of the evidence, that Father was
    "unable to provide effective parental care due to substance abuse." See
    Denise R. v. Ariz. Dep't of Econ. Sec., 
    221 Ariz. 92
    , 94, ¶¶ 6–7 (App. 2009)
    (observing that substantial evidence is evidence "which would permit a
    reasonable person to reach the trial court's result" (quoting In re Est. of
    Pouser, 
    193 Ariz. 574
    , 579, ¶ 13 (1999))).
    ¶13            Father admitted that he suffered an addiction to Tramadol in
    2014, which caused him to seek inpatient rehabilitation treatment. Father
    was prescribed suboxone to treat his addiction and he continues to use the
    drug as a non-opiate pain management treatment. But the case manager
    testified that suboxone can be misused and abused. And the case manager
    testified that A.Y. and G.Y. told her that they saw Father snorting crushed
    white pills, that G.Y. identified as suboxone. Although the children did not
    testify about their observations directly, Father did not challenge the
    statements as unreliable, and the superior court accepted those statements
    as evidence. See A.R.S. § 8-237 (allowing a minor's reliable out-of-court
    statements to prove abuse or neglect in a dependency).
    ¶14            While Father argues that drug-use allegations mirror
    evidence rejected by the superior court in the first dependency trial, there
    is a key difference. During the first trial, the allegation that Father
    "snort[ed] drugs" was based on information conveyed by Grandmother to
    G.Y., not the child's own observations. But in the second trial, a witness
    testified that both children said they had personally "seen their parents
    snorting white pills."
    ¶15            The superior court also took a negative inference from
    Father's failure to submit to several drug tests. See Jennifer S. v. Dep't of Child
    Safety, 
    240 Ariz. 282
    , 287–88, ¶¶ 21, 25 (App. 2016) (citing parent's "refus[al]
    to take most of her required drug tests" as support for finding that drug
    abuse was ongoing); Kara B. v. Dep't of Child Safety, 1 CA-JV 21-0001, 
    2021 WL 2425907
    , at *3, ¶ 15 (Ariz. App. June 5, 2021) (mem. decision) ("Mother
    could have rebutted that negative inference by complying with requested
    drug tests and demonstrating sobriety, but she was unwilling to do so.").
    ¶16         Father failed to comply with the superior court's order to take
    a drug test during the first dependency trial. During the second
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    IN RE DEPENDENCY AS TO A.Y. and G.Y.
    Decision of the Court
    dependency proceedings in August 2022, DCS referred Father for drug
    testing. Despite several efforts to reach him, Father never completed any
    drug tests. The superior court then ordered Father to submit to a drug test
    no later than one-week before the second dependency trial. Again, Father
    disregarded the court's order. At trial, Father explained that he could not
    comply because DCS did not return his calls, he could not procure
    transportation, and he did not know which drug testing location to use. The
    superior court rejected Father's explanation as not credible. See Oscar O.,
    209 Ariz. at 334, ¶ 4 (noting that the juvenile court is in the best position to
    "judge the credibility of witnesses").
    ¶17           The superior court did not abuse its discretion by finding that
    the negative inference, combined with A.Y. and G.Y.'s first-hand
    observations of substance abuse, were enough to meet the preponderance
    of the evidence standard.
    ¶18            Because we affirm the superior court's dependency order
    based on Father's substance abuse, we need not reach Father's challenge to
    the court's finding of neglect based on the failure to procure A.Y. and G.Y.
    adequate shelter. See Jesus M. v. Ariz. Dep't of Econ. Sec., 
    203 Ariz. 278
    , 280,
    ¶¶ 3–4 (App. 2002) (stating that a court may affirm if reasonable evidence
    supports at least one ground).
    CONCLUSION
    ¶19          For the reasons described above, we affirm the superior
    court's dependency order.
    AMY M. WOOD • Clerk of the Court
    FILED: AA
    5
    

Document Info

Docket Number: 1 CA-CR 23-0052-PRPC

Filed Date: 8/10/2023

Precedential Status: Non-Precedential

Modified Date: 8/10/2023