Angel G. v. Dcs, R.G.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ANGEL G., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, R.G., Appellees.

No. 1 CA-JV 18-0124
FILED 8-23-2018

Appeal from the Superior Court in Maricopa County
No. JD35110
The Honorable Cari A. Harrison, Judge

AFFIRMED

COUNSEL

Robert D. Rosanelli Attorney at Law, Phoenix
By Robert D. Rosanelli
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By JoAnn Falgout
Counsel for Appellee Department of Child Safety

ANGEL G. v. DCS, R.G.
Decision of the Court

MEMORANDUM DECISION

Judge Randall M. Howe delivered the decision of the Court, in which
Presiding Judge Jon W. Thompson and Judge James B. Morse Jr. joined.

H O W E, Judge:

¶1 Angel G. (“Father”) appeals the juvenile court’s order
adjudicating his child R.G. dependent. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 In November 2017, a police officer saw Father driving a
pickup truck and having difficulty staying in his driving lane; the truck
touched the driving lane’s markers three times within one block. The officer
also saw a child in a car seat in the truck bed. The officer stopped Father to
perform a child-welfare check and saw that the child in the car seat was not
buckled in and that the seat was not affixed to the truck. He also saw
another child hiding near the right front portion of the truck bed. The officer
smelled a strong odor of marijuana when he approached, and Father
admitted that he was a medical marijuana user and that he had just smoked
marijuana. The officer arrested Father for child endangerment. As the
officer did so, he saw two-year-old R.G. seated in Father’s truck on the
bench seat with no restraints or child seat.

¶3 In a search incident to arrest, the officer found a bag
containing marijuana. He also saw that Father moved lethargically, had
bloodshot and watery eyes, and had slow eye movement. When another
officer arrived at the scene, he also smelled a strong odor of marijuana
coming from the truck and Father and also saw Father’s bloodshot and
watery eyes. The officers later charged Father for possession of marijuana
and aggravated driving under the influence in addition to child
endangerment. Father had a medical marijuana card, but a computer
database showed that the card had expired and no new cards were on file.

¶4 The Department of Child Safety received an incident report
from the police and responded the next day. The children reported they
were afraid of Father and that he was a transient, had a bad temper, and
frequently used marijuana inside their home. Father did not cooperate with
the investigating case worker and denied the information in the police

2

ANGEL G. v. DCS, R.G.
Decision of the Court

officers’ charges and reports. The Department found that Father had been
involved with the Department before, noting that it had substantiated
reports that he had exposed his older children to domestic violence and had
consumed alcohol and pulled his gun out while his older children were in
his home.1

¶5 The Department interviewed R.G.’s mother (“Mother”)
shortly after the incident.2 She reported that she had been moving from
state to state with Father and that he had abused her by punching, kicking,
and strangling her. She also stated that Father had assaulted her in front of
his older children while Mother was pregnant with R.G. and in front of R.G.
after his birth. She further asserted that Father sometimes became violent
with R.G., which required her to intervene. She added that Father often
smoked marijuana in R.G.’s presence and became violent with her if she
asked him to not do so. Mother explained that she had left R.G. in Father’s
care because she was homeless and unable to care for him. She also reported
that while R.G. was in Father’s care, she had seen pictures of R.G. with facial
injuries and riding unrestrained in Father’s truck.

¶6 That same day, the Department removed R.G. from Father’s
care and moved for dependency. It alleged that R.G. was dependent
because (1) Father was unable or unwilling to provide proper and effective
parental care and control, (2) he had neglected R.G. by failing to provide
safe and appropriate housing and supervision, (3) he used marijuana in
R.G.’s presence, and (4) he had a history of engaging in domestic violence
in R.G.’s presence.

¶7 In December 2017, the Department reported that Father had
threatened to kidnap R.G. by force if necessary, had been so aggressive that
he could not participate in the initial team decision-making meeting, had
resisted all services except visitation, and had generally been
uncooperative. As a result, the Department moved to suspend Father’s
visitation. The court temporarily suspended his visitation and later, after an
evidentiary hearing, ordered therapeutic visitation in a supervised setting.

¶8 At the dependency adjudication hearing in March 2018,
Father testified and admitted that he had been arrested in November 2017,
but denied the allegation that his children were riding in the truck bed

1 Father’s older children are not parties in this appeal.

2 The court later found R.G. dependent as to Mother, but she is not a
party to this appeal.

3

ANGEL G. v. DCS, R.G.
Decision of the Court

unrestrained. He also denied that he was smoking marijuana and claimed
that he only consumed edible marijuana. He further testified that he
thought driving while R.G. was not in a child seat was safe as long as he
was not speeding or driving on a freeway. He also stated that he had a
medical marijuana card and used marijuana to stop his epileptic seizures.
He later clarified that marijuana stopped epileptic seizures already in
progress rather than prevented them.

¶9 Regarding the domestic abuse allegations, Father admitted
that he had been reported for abusing Mother and had been arrested for
aggravated assault and domestic violence. He later denied that he had ever
physically assaulted Mother. When asked about his prior substantiated
reports with the Department, Father claimed multiple times that the files
were “false.”

¶10 After hearing the evidence, the court found that Father had
driven his truck while under the influence of marijuana and had not
properly restrained his children, including R.G. The court noted that
Father’s failure to put R.G. in a child seat created a “very unsafe condition.”
It further stated that Father’s failure to recognize the unsafe condition was
another reason to find R.G. dependent. The court also found that Father’s
use of his truck with his children inside was a concern because he could
experience an epileptic seizure while driving. The court further found that
several substantiated reports showed Father’s domestic violence history. It
also noted that he provided no evidence that he had completed a domestic
violence counseling class and had declined to participate in any services
with the exception of visitation. Thus, the court concluded that the
Department had proven by a preponderance of the evidence that R.G. was
dependent as to father. Father timely appealed.

DISCUSSION

¶11 Father contends that the Department did not provide
sufficient evidence to support the court’s finding that R.G. was dependent.
“The petitioner’s burden of proof in a dependency proceeding is a
preponderance of the evidence.” Willie G. v. Ariz. Dep’t of Econ. Sec., 211
Ariz. 231, 232 ¶ 2 (App. 2005). Because the juvenile court is in the best
position to observe the parties, judge the credibility of witnesses, and
resolve disputed facts, this Court will not reweigh the evidence. Jordan C. v.
Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93 ¶ 18 (App. 2009). We will not disturb
a dependency adjudication unless no reasonable evidence supports it, and
we view the evidence in the light most favorable to sustaining the juvenile

4

ANGEL G. v. DCS, R.G.
Decision of the Court

court’s decision. Id. Because sufficient evidence supports the court’s
dependency finding, the court did not err by finding R.G. dependent.

¶12 Here, the record shows that Father drove his truck while
under the influence of marijuana and with his children unrestrained. Father
did not recognize the inherent danger involved in driving while under the
influence of marijuana with his children in the truck. He also did not
recognize the danger of having his children unrestrained while he drove
his truck. Father also engaged in domestic violence on multiple occasions,
including in R.G.’s presence. Despite the substantiated reports of domestic
violence, Father did not provide any evidence that he had completed
domestic violence classes. As such, sufficient evidence supports the court’s
finding that R.G. was dependent as to Father.

¶13 Father argues that the Department’s allegation that he failed
to provide R.G. with the necessities of life because he was a transient and
moving between three states was incorrect because he had testified that he
had housing, employment, and his Oklahoma home had not been
inspected. This argument fails, however, because the court did not rely on
those allegations in finding R.G. dependent.

¶14 Next, Father contends that he was justified in transporting
R.G. out of his car seat because he testified that R.G. had urinated himself
while in the seat and to leave him in the seat would have been neglectful.
He also claims that he testified that his two older children in the truck bed
were in seats with seatbelts. Assuming Father’s testimony was true, a urine-
soaked car seat does not justify his driving his truck while under the
influence of marijuana with R.G. unrestrained. Furthermore, accepting
Father’s statement that the older children were wearing seatbelts, the
children were still in danger because evidence showed that the seats in the
truck bed were not actually affixed to the truck. Moreover, the court noted
that Father’s inability to recognize that his actions were unsafe further
justified R.G.’s dependency. As such, this argument is not persuasive.

¶15 Father also argues that the allegation of neglect due to
substance abuse cannot stand because he has a medical marijuana card and
uses it to treat his epilepsy. He further notes that he testified that he did not
use marijuana before the police officer stopped him. The record shows,
however, that Father’s medical marijuana card was expired at the time he
was stopped, and the court heard evidence that Father had admitted that
he had smoked marijuana before he drove his truck and that he exhibited
signs of impairment when the officers stopped his truck. The court also
noted that marijuana stops Father’s seizures rather than prevents them and

5

ANGEL G. v. DCS, R.G.
Decision of the Court

found that Father’s driving of his truck with children inside created a
dangerous condition because he could experience a seizure while driving.
Thus, this argument fails.

¶16 Last, Father contends that the court should not have found
R.G. dependent based on his domestic violence history because he denied
that any domestic violence occurred. The record shows, however, that
Mother had reported to the Department that Father had physically abused
her and had abused her in front of R.G. She also reported that Father was
sometimes violent with R.G., which required her to intervene. This
argument is meritless.

CONCLUSION

¶17 For the foregoing reasons, we affirm.

AMY M. WOOD • Clerk of the Court
FILED: AA

6