Jamie F. v. Dcs, D.S. ( 2021 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
JAMIE F., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, D.S., Appellees.
No. 1 CA-JV 20-0316
FILED 3-23-2021
Appeal from the Superior Court in Maricopa County
No. JD 527578
The Honorable Jeffrey A. Rueter, Judge
AFFIRMED
COUNSEL
Maricopa County Public Advocate, Mesa
By Suzanne W. Sanchez
Counsel for Appellant
Arizona Attorney General’s Office, Tucson
By Dawn R. Williams
Counsel for Appellee, Department of Child Safety
JAMIE F. v. DCS, D.S.
Decision of the Court
MEMORANDUM DECISION
Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge David B. Gass and Judge David D. Weinzweig joined.
B R O W N, Judge:
Jamie F. (“Mother”) appeals the juvenile court’s order finding
her son, D.S., dependent.1 She also appeals the court’s disposition order.
For the following reasons, we affirm.
BACKGROUND
Mother’s parental rights to an older child, R.F., were
terminated in 2015 on grounds of neglect due to substance abuse, as well as
nine and fifteen months in an out-of-home placement. D.S. was born in
2017. Mother was on probation in December 2019 when her probation
officer visited her home and found D.S. outside unsupervised. During
another home visit, a probation officer found a pipe and white powder,
later identified as methamphetamine (“meth”), on the microwave. D.S. was
in daycare at the time, and Mother claimed the items belonged to a friend
who had visited earlier that day or a family member who was staying in the
home. The probation department did not petition for a violation; instead,
Mother was directed to participate in drug testing and the Department of
Child Safety (“DCS”) was alerted about the incident.
Over the next month, Mother failed to take several drug tests.
After completing a TERROS intake, she told her counselor she planned to
stop using meth just long enough to get off probation, and would then start
using again to control her weight. In April 2020, DCS held a team decision-
making meeting and recommended services and a substance abuse
assessment for Mother. Three weeks later, Mother stated she was
“appealing the decision to do services” because she was already enrolled in
services for probation. Around the same time, Mother took her first drug
test for probation services and tested positive for meth; shortly thereafter
DCS removed D.S. from Mother’s custody.
1 D.S.’s father was also part of the dependency proceeding, but he is
not a party to this appeal.
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JAMIE F. v. DCS, D.S.
Decision of the Court
In its dependency petition, DCS alleged Mother was unable
to parent due to her substance abuse and neglect. After a contested
dependency hearing, the juvenile court found D.S. dependent on both
grounds and Mother appealed. The court later held a dependency
disposition hearing, finding a continuing need for out-of-home care, and
confirming the case plan of family reunification. Mother also appealed that
ruling. We have jurisdiction. See A.R.S. §§ 8-235(A), 12-120.21(A)(1), 12-
2101(A)(1); Lindsey M. v. Ariz. Dep’t of Econ. Sec., 212 Ariz. 43, 45, ¶ 8 (App.
2006) (concluding that a dependency disposition order is a final, appealable
order).
DISCUSSION
We review a dependency order for an abuse of discretion.
Louis C. v. Dep’t of Child Safety, 237 Ariz. 484, 488, ¶ 12 (App. 2015). We will
not disturb the juvenile court’s determination unless reasonable evidence
does not support its factual findings. Ariz. Dep’t of Econ. Sec. v. Matthew L.,
223 Ariz. 547, 549, ¶ 7 (App. 2010). The juvenile court is in the “best position
to weigh the evidence, judge the credibility of the parties, observe the
parties, and make appropriate factual findings.” Pima Cnty. Dependency
Action No. 93511, 154 Ariz. 543, 546 (App. 1987).
As pertinent here, a child is “dependent” if adjudicated to be
“in need of proper and effective parental care and control,” and without a
“parent or guardian willing to exercise or capable of exercising such care
and control,” or if the parent’s “home is unfit by reason of . . . neglect.”
A.R.S. § 8-201(15)(a)(i), (iii). Neglect includes the “inability or
unwillingness of a parent . . . to provide that child with supervision, food,
clothing, shelter, or medical care if [it] causes unreasonable risk of harm to
the child’s health or welfare.” A.R.S. § 8-201(25)(a). DCS has the burden of
proving a dependency by a preponderance of the evidence, A.R.S. § 8-
844(C)(1), and “the juvenile court is vested with a great deal of discretion”
because the primary concern is the best interests of the child. Willie G. v.
Ariz. Dep’t of Econ. Sec., 211 Ariz. 231, 235, ¶ 21 (App. 2005) (citation and
internal quotation marks omitted).
Reasonable evidence supports the court’s dependency
finding based on abuse and neglect. The court first noted Mother’s history
of substance abuse, going back at least seven years, and that her previous
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JAMIE F. v. DCS, D.S.
Decision of the Court
termination proceeding involved substance abuse.2 At the dependency
hearing, Mother conceded she uses meth for weight loss, but she claimed
the meth did not impair her parenting skills. She missed many drug tests
and failed others, including a positive test for meth in September 2020.
Mother claimed she never uses or stores drugs around her son, but
probation officers found meth and paraphernalia in her home, sitting on the
microwave, in February 2020. The court found that Mother’s “drug use has
already exposed the child to dangerous situations” and yet her
participation in substance abuse treatment and visitation with the child
have been inconsistent. And, although only two years old, D.S. was found
outside the home unsupervised—an incident similar to what occurred in
Mother’s prior termination case. Mother nonetheless failed to take steps to
meaningfully participate in parenting and substance abuse services, and
continued to test positive for meth.
Mother counters that reasonable evidence does not “support
a conclusion that drug use impacted parenting during the last three months
that Mother had D.S. in her care or at the time of the trial.” She also
contends DCS failed to show evidence of neglect after the incident when
meth was found in her home. But the juvenile court was not required to
document additional events before it could reasonably conclude there were
continuing risks to D.S.’s health and welfare created by Mother’s repeated
substance abuse. Cf. Raymond F. v. Ariz. Dep’t of Econ. Sec., 224 Ariz. 373,
379, ¶¶ 28–29 (App. 2010) (finding a father’s temporary abstinence from
using drugs did not outweigh his consistent inability to abstain, which
meant his chronic drug abuse was likely to persist for a long period and
continue to negatively affect his parenting duties).
Although the juvenile court must consider the “circumstances
existing at the time of the adjudication hearing,” the conditions for
dependency “need not be continuous or actively occurring at the time of
the adjudication hearing to support a finding of dependency on these
grounds; the substantiated and unresolved threat is sufficient.” Shella H. v.
Dep’t of Child Safety, 239 Ariz. 47, 50–51, ¶¶ 12, 16 (App. 2016); see also Pima
Cnty. Juv. Dependency Action No. 96290, 162 Ariz. 601, 604 (App. 1990)
(explaining that when “conditions creating the dependency . . . pose an
imminent risk of harm,” DCS is not required to wait for further injury to be
inflicted). This is “particularly true” in cases where the parent denies
2 We need not address the arguments Mother raises in her opening
brief concerning her use of medical marijuana because the juvenile court
findings focused solely on meth use.
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JAMIE F. v. DCS, D.S.
Decision of the Court
responsibility for the conditions of dependency. Shella H., 239 Ariz. at 51,
¶ 16.
To the extent Mother challenges the disposition order, she
does so only on the basis that if we vacate the adjudication order, we must
also vacate the disposition order. Because we uphold the adjudication
order, Mother’s challenge fails.
CONCLUSION
We affirm the juvenile court’s orders.
AMY M. WOOD • Clerk of the Court
FILED: AA
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