Anthony T. v. Dcs, B.T.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ANTHONY T., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, B.T., Appellees.

No. 1 CA-JV 19-0369
FILED 6-2-2020

Appeal from the Superior Court in Mohave County
No. S8015JD201900056
The Honorable Megan McCoy, Judge Pro Tempore

AFFIRMED

COUNSEL

E.M. Hale Law, Lakeside
By Elizabeth M. Hale
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By Lauren J. Lowe
Counsel for Appellee Department of Child Safety
 ANTHONY T. v. DCS, B.T.
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Samuel A. Thumma delivered the decision of the Court, in
which Judge Randall M. Howe and Chief Judge Peter B. Swann joined.

T H U M M A, Judge:

¶1 Anthony T. (Father) appeals from an order finding his child,
B.T, dependent. Because Father has shown no error, the order is affirmed.

FACTS AND PROCEDURAL HISTORY

¶2 Father, B.T. (born in late 2017) and the B.T.’s Mother all have
had prior involvement with child protective services, both in Arizona and
California. The couple have three children together, including B.T., and
Mother has an older daughter, who lives with two of her siblings in
California under a guardianship. Over time, there have been several
investigations of reported abuse and substance-abuse involving parents
and their children.

¶3 B.T. was born in Arizona substance-exposed to
methamphetamine, and both parents tested positive for the drug shortly
after his birth. Although a safety plan was implemented in Arizona, the
three moved to California. California then filed a dependency action, B.T.
was found dependent, parents successfully completed substance-abuse and
other services and the case was dismissed in September 2018.

¶4 In February 2019, California received a report alleging that
Father had sexually assaulted Mother’s oldest daughter. Given financial
reasons and apparent strife with extended family, parents and B.T. moved
back to Arizona before California investigated the allegation.

¶5 In June 2019, the Arizona Department of Child Safety (DCS)
received a hotline call about the sexual assault allegation as well as an
allegation that Father was abusing alcohol. DCS found the parents at a
family member’s house in Mohave County. When contacted, both parents
expressed frustration that DCS was again involved and refused to allow
DCS inside the house, but did allow the DCS investigator to see B.T., who
looked “healthy and happy.” At the end of that interaction, the parents told
DCS they would be moving the next day and would not disclose where they
would be living next.

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 ANTHONY T. v. DCS, B.T.
Decision of the Court

¶6 Given the hotline report, history and investigation, DCS
sought (and obtained) a court-authorized removal order and B.T. was taken
into care. DCS’ dependency petition. As to Father, the petition alleged
substance abuse (including an erroneous allegation that he had not
participated in substance abuse services) and failing to provide a safe and
proper home (alleging where the three had been staying had no running
water or utilities).1

¶7 At a team decision-making meeting the day after DCS filed
the petition, Father admitted the couple used marijuana while B.T. was
sleeping, but there is no indication they had a valid medical marijuana card.
DCS reported concerns that parents were again using methamphetamine
and asked them to participate in drug testing. DCS requested a hair-follicle
and urinalysis test, which neither provided at the time.

¶8 At the preliminary protective hearing, where Father contested
the dependency allegations, the court ordered him to participate in random
drug tests and a hair follicle test. Father did not provide a hair follicle
sample and, at first, refused drug testing. Approximately two weeks later,
however, Father provided a urine sample that came back negative. And
although the parents had allowed DCS to view their residence, they moved
before the dependency adjudication.

¶9 Mother and Father inconsistently attended supervised visits.
Father’s work schedule conflicted with some of the visits, but DCS reported
that “neither parent has shown a willingness to fully commit to attending
visits consistently.” On one occasion, Father became agitated while in the
DCS office for a visit, causing security to become involved and warning
Father about his behavior.

¶10 The evidence at the October 2019 adjudication showed Father
had not provided a hair follicle sample for testing, had provided one
negative urinalysis test and refused to participate in any other testing. In
addition, parents had moved and, although DCS had twice scheduled a
visit of their new residence, parents had cancelled both visits. Accordingly,
DCS had not been able to inspect their current residence to ensure B.T.’s
safety if he was placed back in their care.

1 The petition also claimed sexual abuse of Mother’s oldest child, a ground

later withdrawn by DCS before trial.

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 ANTHONY T. v. DCS, B.T.
Decision of the Court

¶11 DCS argued, with supporting evidence, that B.T. was
dependent based on an inability to ensure B.T.’s basic needs (including
denying access to inspect parent’s current residence) and substance abuse
(including Father’s refusal to participate in court-ordered testing). The
guardian ad litem (GAL) stated that, if Father provided DCS access to
inspect the residence and tested negative, the case would likely be quickly
resolved by dismissal, but because that had not yet happened, the GAL
supported the dependency. Father testified that he did not plan to let DCS
view his residence because the situation was “wrong.”

¶12 After considering the evidence and argument, the court found
B.T. dependent as to both parents, stating it drew a negative inference,
noting that:

based on the lack of compliance by the parents,
this Court has no information. This Court has no
ongoing information about the home of these
parents. This Court has no information as to
their sobriety other than the testimony of the
[F]ather, even though both have been Court
ordered to submit hair follicles and both have
been required and given the benefit of
urinalysis testing.

¶13 Father timely appeals pursuant to Article 6, Section 9, of the
Arizona Constitution, Arizona Revised Statutes (A.R.S.) §§ 8-235(A) and 12-
120.21(A)(1) and Arizona Rules of Procedure for the Juvenile Court 103 and
104 (2020).2

DISCUSSION

¶14 Father argues that substantial evidence did not support the
finding that B.T. was dependent as to him . This court reviews the evidence
in a light most favorable to sustaining the superior court’s findings, Willie
G. v. Ariz. Dep’t of Econ. Sec., 211 Ariz. 231, 235 ¶ 21 (App. 2005), recognizing
that court assesses credibility and is in the best position to weigh the
evidence, Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 280 ¶ 4 (App.
2002). This court will “generally not disturb a dependency adjudication
unless no reasonable evidence supports it.” Willie G., 211 Ariz. at 235 ¶ 21.

2 Absent material revisions after the relevant dates, statutes and rules cited

refer to the current version unless otherwise indicated.

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 ANTHONY T. v. DCS, B.T.
Decision of the Court

¶15 DCS had the burden of proving by a preponderance of the
evidence that B.T. was dependent as to Father. See A.R.S. § 8-844(C)(1).
Father, however, has not shown the court erred in drawing a negative
inference from his failure to submit to court-ordered drug testing in finding
B.T. dependent as to him and in assessing his credibility. Cf. Willie G., 211
Ariz. at 235–36 ¶¶ 21, 26. Similarly, parents’ refusal to allow DCS to assess
the safety of their current residence does not mean B.T. should not be in
care. Id. at 235 ¶ 21.

¶16 Father argues that, because DCS relied on his previous
methamphetamine abuse, the allegation of substance abuse was
insufficient. Father also argues the neglect allegation was unsupported,
because a finding of neglect requires a showing of some fact that the
circumstances alleged create an “unreasonable risk of harm to a child’s
health or welfare.” A.R.S. § 8-201(25)(a). Father also argues that the
dependency finding was not in B.T.’s best interest, stating that “[b]ecause
DCS was unable to show any evidence to support a claim that B.T. was
neglected or that the situation he lived in was harmful, removal from the
love and care of his parents is not in his best interest.” In pressing these
arguments, however, Father asks this court to reweigh the evidence
presented at trial, something this court will not do on appeal. Jesus M., 203
Ariz. at 282 ¶ 12.

¶17 The record at trial showed Father admitted using marijuana
that, along with the concerns of alcohol abuse, justified the drug testing the
court ordered and that he does not challenge on appeal. Other than
providing one sample, which was negative, Father, however, failed to
comply with that court-ordered testing. Similarly, parents have failed to
allow DCS access to their current residence to assess whether it would be
appropriate for B.T. By moving from one residence that DCS fairly
described as not being appropriate to another residence where parents will
not allow DCS access, nothing indicates that the concerns that caused DCS
to take B.T. into care have been resolved. This is particularly true given
parents’ prior involvement with DCS in Arizona, and its counterpart in
California. On this record, Father has not shown the dependency finding
was in error.

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 ANTHONY T. v. DCS, B.T.
Decision of the Court

CONCLUSION

¶18 The order finding B.T. dependent as to Father is affirmed.

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

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