In Re Dependency as to B.U.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

No. 1 CA-JV 24-0054
FILED 08-29-2024

Appeal from the Superior Court in Maricopa County
No. JD534217
The Honorable Ashley V. Halvorson, Judge

AFFIRMED

COUNSEL

John L. Popilek, P.C., Scottsdale
By John L. Popilek
Counsel for Appellant Father

Maricopa County Legal Advocate’s Office
By Amanda L. Adams
Counsel for Appellee B.U.

Arizona Attorney General’s Office, Mesa
By Ingeet P. Pandya
Counsel for Appellee Arizona Department of Child Safety
 IN RE DEPENDENCY AS TO B.U.
Decision of the Court

MEMORANDUM DECISION

Judge D. Steven Williams delivered the Court’s decision, in which
Presiding Judge Michael J. Brown and Judge Daniel J. Kiley joined.

W I L L I A M S, Judge:

¶1 Roger R. (“Father”) appeals the juvenile court’s dependency
order. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Father informs he has ten children with three different
mothers. None of the children are currently in his care, though he claims he
sees at least two of them every other weekend. The youngest child, Brody
(a pseudonym), was born substance-exposed to methamphetamine in
February 2023. Father was not present for Brody’s birth nor was he listed as
Brody’s father on the birth certificate.

¶3 After Mother left the hospital, she never returned for Brody.1
The Arizona Department of Child Safety (“DCS”) placed the infant with a
relative and petitioned the juvenile court for a dependency. Because
Father’s identity was unknown, DCS used “John Doe” as Father’s fictitious
name. The court found Brody dependent as to both parents.

¶4 In June 2023, DCS moved to terminate both parents’ rights to
Brody based upon abandonment and failure to maintain a normal
parent-child relationship. However, in September 2023, DCS learned of
Father’s identity and contacted him to let him know that he may be Brody’s
father. DCS asked Father to submit to a rule-out urinalysis (“UA”) and hair
follicle testing (for drugs), but Father refused until he received the results
of a paternity test. That paternity test confirmed Father was Brody’s
biological parent. Based upon its discovery of Father’s identity, DCS
withdrew its motion to terminate Father’s parental rights and the court
changed the case plan to family reunification.

¶5 In October 2023, DCS filed an amended dependency petition
with Father’s information. The petition alleged that Brody was dependent
because Father had “neglected his child” and was “unable or unwilling to

1 Mother is not a party to this appeal.

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 IN RE DEPENDENCY AS TO B.U.
Decision of the Court

provide proper and effective parental care” given that “Father ha[d] not
maintained a normal parent[]child relationship with the child since the date
of the child’s birth.”

¶6 After paternity was established, Father continually refused to
complete any UA or hair follicle testing despite (1) the juvenile court
ordering that he do so, and (2) DCS following up time and again. DCS also
referred Father to the Nurturing Parenting Program (“NPP”) to determine
whether “he had the appropriate tools and knowledge to be able to
properly care for [Brody]” because it was unclear to what extent Father had
parented his other nine children. Father participated in some supervised
visits with Brody but refused to complete NPP.

¶7 On the morning of the February 2024 dependency
adjudication hearing, Father, for the first time, submitted to a UA. But the
results were not available for the hearing and are not included in the
appellate record. In any event, during the hearing, Father testified that he
was willing to do whatever was required to gain custody of Brody so long
as drug testing was limited to UAs. Father professed that undergoing a hair
follicle or cuticle test would “go against [his] religion.” He later modified
his testimony, stating that his unwillingness to undergo a cuticle test was
“not really a religious thing,” but instead resulted from his grooming
habits. “I don’t have fingernails,” he stated, “because as a cook and a chef,
I’m straight cleaned and groomed and cut down to the skin.”

¶8 Father also testified that he was willing to participate in NPP
despite previously refusing to and informing DCS of that refusal. He
further testified that he lived with his mother and stepfather and that his
mother would be able to help him raise Brody. As for DCS’s part, the case
manager maintained that Brody would be at risk if placed in Father’s care
given, in part, Father’s refusal to engage in services. After taking the matter
under advisement, the court found Brody dependent.

¶9 Father timely appealed. We have jurisdiction under Article 6,
Section 9, of the Arizona Constitution, A.R.S. §§ 8-235(A), 12-120.21(A)(1),
-2101(A)(1), and Arizona Rule of Procedure for the Juvenile Court 601(a).

DISCUSSION

¶10 Father argues there was no basis for the juvenile court’s
finding that he was “incapable of caring for [Brody] or that [Brody] was at
risk with Father.” He also claims there was no reason to believe that Father
had substance-abuse issues that interfered with his ability to parent the
child.

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Decision of the Court

¶11 We review a dependency finding for an abuse of discretion,
Louis C. v. Dep’t of Child Safety, 237 Ariz. 484, 488, ¶ 12 (App. 2015), viewing
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). Because the juvenile court “is in the best position to weigh the
evidence, observe the parties, judge the credibility of witnesses, and resolve
disputed facts,” Ariz. Dep’t of Econ. Sec. v. Oscar O., 209 Ariz. 332, 334, ¶ 4
(App. 2004), we affirm its findings unless the record has no reasonable
evidence to support them. Willie G., 211 Ariz. at 235, ¶ 21.

¶12 The juvenile court must make its dependency determination
“based upon the circumstances existing at the time of the adjudication
hearing.” Shella H. v. Dep’t of Child Safety, 239 Ariz. 47, 50, ¶ 12 (App. 2016).
The court may, however, consider prior events if they pose a “substantia[l]
and unresolved threat” to the child. Id. at 51, ¶ 16. DCS has the burden of
proving the allegations of a dependency petition by a preponderance of the
evidence. See A.R.S. § 8-844(C)(1).

¶13 A dependent child is one adjudicated to be:

(i) In need of proper and effective parental care and control and
who has no parent . . . willing to exercise or capable of
exercising such care and control.

A.R.S. § 8-201(15)(a)(i). One basis upon which the court may adjudicate a
child dependent is neglect—which is the only ground alleged by DCS here.
A.R.S. § 8-201(15)(a)(iii). Neglect includes “[t]he inability or unwillingness
of a parent . . . to provide that child with supervision, food, clothing, shelter
or medical care if that inability or unwillingness causes substantial risk of
harm to the child’s health or welfare . . .” A.R.S. § 8-201(25)(a).

¶14 The juvenile court found Brody dependent based upon
neglect given Father’s “refusal to complete the safety assessment and
participate in the requested services.” The court further found that
“Father’s refusal to complete the safety assessment and participate in the
requested services amount[ed] to an inability or unwillingness to provide
proper and effective parental care and control . . . [which] pose[s] a
substantiated and unresolved threat to the child.” Reasonable record
evidence supports the court’s findings.

¶15 As stated, supra ¶2, Father has ten children. It is unclear from
the record how involved Father has been in actively parenting any of them,
though there is some indication in DCS reports that Father’s involvement
has been, and is now, limited. Father does not currently have any child

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Decision of the Court

living with him. Consequently, the juvenile court’s concern with Father’s
refusal to complete NPP as recommended by DCS—which was intended to
evaluate Father’s ability to safely parent Brody—was reasonable and within
its discretion in concluding that Father was unwilling and/or unable to
provide proper and effective parental care of Brody.

¶16 And though Father takes issue with the juvenile court (and
DCS) requiring his participation in rule-out drug testing before placing
Brody (now nearly one-and-a-half years old) in Father’s care for the first
time, we cannot say the court’s rationale was unreasonable. The court
explained that “demonstrating sobriety is a reasonable and necessary part
of the safety assessment in this case, especially [since Brody was] born
substance exposed, Father’s relationship with Mother who is known to
have a severe substance abuse history, and prior DCS concerns of substance
abuse.” See Campbell v. Superior Court, 106 Ariz. 542, 547–48 n.3 (1971) (“[I]t
is reasonable to infer that a refusal to take [a substance] test indicates the
defendant’s fear of the results of the test and his consciousness of guilt.”)
(quoting City of Westerville v. Cunningham, 239 N.E.2d 40, 41 (Ohio 1968)).

¶17 By refusing participation in NPP and refusing to submit to
rule-out drug testing, Father precluded DCS from completing its safety
assessment to determine whether he could safely parent Brody. The
juvenile court’s dependency order, based upon Father’s refusals, was
within the court’s discretion and supported by reasonable record evidence.

CONCLUSION

¶18 For the foregoing reasons, we affirm.

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

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