Daniel L. v. Dcs ( 2017 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
DANIEL L., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, D.L. S.L., A.L., Appellees.
No. 1 CA-JV 16-0488
FILED 4-27-2017
Appeal from the Superior Court in Coconino County
No. S0300JD201600034
The Honorable Margaret A. McCullough, Judge
JURSIDICTION ACCEPTED; RELIEF DENIED
COUNSEL
Coconino County Public Defender’s Office, Flagstaff
By Sandra L.J. Diehl
Counsel for Appellant
Arizona Attorney General’s Office, Mesa
By Nicholas Chapman-Hushek
Counsel for Appellees
DANIEL L. v. DCS, et al.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Samuel A. Thumma delivered the decision of the Court, in
which Judge Donn Kessler and Judge Patricia A. Orozco1 joined.
T H U M M A, Judge:
¶1 Daniel L. (Father) challenges the superior court’s order that
continued out of home custody of his children D.L., S.L. and A.L.
(collectively Children) was clearly necessary to prevent abuse or neglect.2
This court accepts special action jurisdiction over Father’s challenge but
denies relief because Father has not shown the court erred.
FACTUAL AND PROCEDURAL HISTORY
¶2 D.L. was born in 2011; S.L. in 2013 and A.L. in 2016. At birth,
A.L. tested positive for amphetamine and the Department of Child Safety
(DCS) intervened, but did not remove the Children from parents’ care at
that time. DCS did, though, direct Father to “submit to urine and hair-
follicle drug tests by the end of the week.” Father, however, was arrested
the same day for possession of prescription medication and theft.
¶3 After learning A.L.’s meconium tested positive for
methamphetamine and marijuana, DCS attempted to locate the family.
DCS, however, was unable to locate the family for eight days. Kristen M.
(Mother) was in jail for domestic violence committed with the paternal
grandmother in the presence of the Children. Father then assumed care of
the Children, but returned them to Mother’s care immediately after she was
released from jail.
¶4 After DCS finally contacted the family at a pediatrician’s
office, DCS took custody of the Children. DCS offered Father services,
including drug testing, but he “refused to do anything.” DCS then filed a
1The Honorable Patricia A. Orozco, Retired Judge of the Court of Appeals,
Division One, has been authorized to sit in this matter pursuant to Article
6, Section 3 of the Arizona Constitution.
2 Mother is also subject to the order but she is not a party to this appeal.
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DANIEL L. v. DCS, et al.
Decision of the Court
dependency petition, alleging the Children were dependent as to Father
because he neglected them by failing to protect them from Mother, given
her drug use and unstable living situation.
¶5 Father requested a review of temporary custody hearing. See
Ariz. R.P. Juv. Ct. 51 (2017).3 At a three-day evidentiary hearing, Father
testified. During questioning by the State, Father was argumentative and
evasive, with the court reminding him numerous times to properly answer
the questions. At the close of the hearing, the court took the matter under
advisement and later found by a preponderance of the evidence the State
“met its burden that continued custody of the [C]hildren is clearly
necessary to prevent abuse or neglect.” The court based its decision in part
on Father’s refusal to cooperate, causing “serious concerns whether [F]ather
will comply with the court’s direction and orders.” The court expressed
concerns that Father returned the Children to Mother immediately after her
release from jail for domestic violence. Father timely seeks review of that
decision by this court.4
DISCUSSION
¶6 Father argues this court can exercise appellate review while
the State argues this court lacks appellate jurisdiction. As noted by the
parties, whether the temporary custody order was appealable is the subject
of decisions that at least facially appear difficult to reconcile. Compare
Yavapai Cty. Juv. Action No. J-8545, 140 Ariz. 10, 14 (1984) (“very narrow,
technical conception of what constitutes a final order” should not apply “in
cases involving the important and fundamental right to raise one’s
children;” “A parent denied and redenied control over his or her children
must have the right to appeal the initial and subsequent denials.”) with
Maricopa Cty. Juv. Action No. JT-295004, 126 Ariz. 409, 411 (App. 1980)
(noting, to be appealable, a final order “must dispose of all of the issues”).
This court need not attempt to finally reconcile that issue here. Even if
appellate jurisdiction is lacking, this court has the “discretion to consider
the matter as a special action.” State v. Perez, 172 Ariz. 290, 292 (App. 1992);
see also Danielson v. Evans, 201 Ariz. 401, 411 ¶ 35, 36 (App. 2001) (sua sponte
3Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.
4 In November 2016, in an unsigned minute entry, the Children were found
dependent. Father did not appear at the hearing and that ruling is not at
issue here.
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DANIEL L. v. DCS, et al.
Decision of the Court
accepting special action jurisdiction). Accordingly, the court in its discretion
will entertain Father’s challenge to the temporary custody order by
accepting special action jurisdiction. See A.R.S. § 12–120.21(A)(4); Ariz. R.P.
Spec. Act. 1(a).
¶7 Father argues the superior court abused its discretion because
“the record lacks evidence to support its ruling,” citing various factors he
asserts militate against temporary custody.5 The record, however, reflects
adequate record evidence to support the ruling. For example, Father
admitted he refused to cooperate with DCS, returned the Children to
Mother despite her domestic violence in their presence and allowed the
Children to remain in Mother’s care despite her drug use. The superior
court properly considered this evidence when making its decision. This
court will not re-weigh the evidence on appeal and “will not disturb the
juvenile court’s order unless no reasonable evidence supports its factual
findings.” Jennifer S. v. Dep’t of Child Safety, 240 Ariz. 282, 287 ¶ 16 (App.
2016).
¶8 As to Father’s argument that DCS did not offer services to
prevent removal, the record is to the contrary. DCS did not immediately
remove the Children when A.L. was born substance-exposed. DCS then
made multiple attempts to contact the family and DCS offered random
drug testing. DCS’ inability to locate Father is due to his own actions and
Father then refused to participate in numerous drug tests. Father explicitly
told DCS that he would not do anything until after they returned his
Children to his care. Father has not shown that DCS failed to make
reasonable efforts to prevent removal.
¶9 Finally, Father argues that because the court did not make
explicit findings that reasonable efforts were made to prevent removal of
the Children, such efforts were not made. Not so. To hold that failure to
make explicit findings of reasonable efforts “mandates release of a child
from temporary custody regardless of the child’s welfare would elevate
form over substance. Such a reading of the statute would subordinate the
welfare of the Child[ren] to the very procedures established to protect the
Child[ren’s] health and safety.” Arizona Dept. of Econ. Sec. v. Lee ex rel. Cty of
Maricopa, 228 Ariz. 150, 154 ¶ 16 (App. 2011). There is ample evidence in the
record to support the court’s order and its implicit findings that DCS made
5 Father argues that “[c]oncerns about [Father’s] future involvement with
criminal activities” should not be grounds for removal. However, there is
no indication that the court relied on these concerns as a basis for ordering
temporary custody.
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DANIEL L. v. DCS, et al.
Decision of the Court
reasonable efforts to offer services to Father. And after removal, as Father
concedes, DCS offered Father numerous services, but he refused to
participate.
¶10 Father asserts that, although services were offered after
removal, they “would not facilitate reunification of the family when the
concerns voiced by DCS were father’s willingness to participate in services,
parenting skills, domestic violence in the past and his criminal history or
involvement in criminal activities.” Contrary to Father’s argument, DCS “is
not required to provide every conceivable service or to ensure that a parent
participates in each service it offers.” Maricopa Cty. Juv. Action No. JS-501904,
180 Ariz. 348, 353 (App. 1994). Given that the concerns regarding Father
were his inability or unwillingness to recognize when his children are in
danger, his evasive behavior and refusal to cooperate, services such as
parenting skills and drug testing were appropriate. Father has not shown
the court abused its discretion.
CONCLUSION
¶11 Accepting special action jurisdiction, because Father has not
shown the temporary custody order was in error, this court denies relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
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