OSCAR F., Appellant, v. DEPARTMENT OF CHILD SAFETY, E.F., M.F., C.F., G.F., and L.F., Appellees.
No. 2 CA-JV 2014-0008
Court of Appeals of Arizona, Division 2.
July 30, 2014
330 P.3d 1023
¶ 5 Therefore, although the trial court used the old label of probation surcharge, both charges were probation assessments, and are lawful. Accordingly, we affirm the trial court‘s assessments.
B. DNA Testing
¶ 6 As part of Pelaez‘s sentence, the trial court required him to pay for his DNA testing pursuant to
CONCLUSION
¶ 7 For the foregoing reasons, we affirm Pelaez‘s conviction and sentence. However, we modify his sentence by vacating the portion that requires Pelaez to pay for his DNA testing.
Thomas C. Horne, Arizona Attorney General By Erika Z. Alfred, Assistant Attorney General, Tucson, Counsel for Appellee Department of Child Safety.
Judge VÁSQUEZ authored the opinion of thе Court, in which Presiding Judge KELLY and Judge HOWARD concurred.
OPINION
VÁSQUEZ, Judge.
¶ 1 Oscar F. appeals from the juvenile court‘s order finding his five children, E.F., M.F., C.F., G.F., and L.F., dependent as to him.1 We affirm the court‘s dependency order for the following reasons.
Factual and Procedural Background
¶ 2 When Oscar аnd the children‘s mother, J.S., divorced in February 2011, they were awarded joint legal custody of the children, as well as equal parenting time. According to a Department of Child Safety (DCS) report,2 the domestic relations cоurt had nonetheless noted “evidence that the children were mistreated, abused, and neglected while in [Oscar‘s] care.” In late 2011, DCS received a report that C.F., then eight, had twice become hysterical at sсhool on days he was scheduled to go to Oscar‘s house at the end of the day; C.F. had said that he was afraid of Oscar, that Oscar “hurts him . . . all the time,” and that Oscar had, in the past, “pushed him against the wall and dropped him on his head.”
¶ 3 The investigation of these incidents was still open when, in February 2013, one of C.F.‘s siblings told J.S. that, during a recent visit, Oscar had picked C.F. up to “chest level” and thrown him to the floor, causing him to hit his head hard on the ground. When J.S. later took C.F. to the hospital, he was diagnosed with a concussion, headache, and emotional distress. In individual interviews with the Southern Arizona Children‘s Advocacy Center (CAC), C.F., G.F., and L.F. reported that Oscar had thrown C.F. to the ground, said that they felt unsafe with Oscar because he was “mean,” and reported other instances of physical abuse.
¶ 4 DCS took the children into temporary custody, placed them with J.S., and filed a dependency petition in whiсh it alleged that Oscar had physically abused C.F. and that J.S. had failed to protect the children from Oscar‘s abuse. In amended dependency petitions, DCS further alleged that J.S. had “engage[d] in acts of verbal domestiс violence” against the children and that Oscar had emotionally abused C.F. After a facilitated settlement conference, J.S. agreed to participate in in-home intervention services, but Oscar eleсted to proceed directly to a dependency adjudication hearing.
¶ 5 After a dependency adjudication hearing that spanned several days, the juvenile court found DCS had proven its allegations against Oscar by a preponderance of the evidence and adjudicated the children dependent as to him.3 This appeal followed.
Discussion
¶ 6 “On review of an adjudication of dependency, we view the evidence in the light most favorаble to sustaining the juvenile court‘s findings. We generally will not disturb a dependency adjudication unless no reasonable evidence supports it.” Willie G. v. Ariz. Dep‘t of Econ. Sec., 211 Ariz. 231, ¶ 21, 119 P.3d 1034, 1038 (App.2005) (internal citation omitted). But we review de novo legal issues involving the juvenile court‘s interpretation of a statute or procedural rule. Bobby G. v. Ariz. Dep‘t of Econ. Sec., 219 Ariz. 506, ¶ 1, 200 P.3d 1003, 1005 (App.2008); Manuel M. v. Ariz. Dep‘t of Econ. Sec., 218 Ariz. 205, ¶ 18, 181 P.3d 1126, 1131 (App.2008).
¶ 7 Oscar first argues the juvenile court erred as a matter of law in concluding it could adjudicate the children dependent as to him “when the other pаrent” — J.S. — “had voluntarily agreed to services in the home without an adjudication of dependency.” According to Oscar, although the dependency petition, as to J.S., “remains unadjudicated and stayed, [DCS] IS NOT the legal guardian of the children.” He argues the court erred because J.S. “is exercising care and control over the children” in an in-home placement and, therefore, “the children cannot be dependent” under thе statutory definition.
¶ 8 A dependent child is defined, in relevant part, as one who is “[i]n need of proper and effective parental care and control and who has . . . no parent or guardian willing to exercisе or capable of exercising such care and control,”
¶ 9 Throughout the duration of an in-home intervention period, the dependency petition remains pending, and “[i]f the parent, guardian or custodian violates the in-home intervention order, the court may take whatever steps it deems necessary to obtain compliance or may rescind the order and set the dependency adjudication hearing” on the petition.
¶ 10 Oscar therefore is mistaken that the childrеn‘s in-home placement with J.S. means they cannot be dependent. Since the day after the dependency petition was filed, the children have been “temporary wards of the Court, committed to the legal care, custody and control of . . . [DCS] and placed in the physical custody” of J.S. The children‘s placement with J.S., subject to in-home intervention and DCS supervision, does not alter the allegations in the petition or somehow constitute a finding that J.S. is willing and able to exercise proper and effective parental care and control, as Oscar seems to suggest.
¶ 11 To the contrary, the allegations with respect to J.S. havе simply been held in abeyance in accordance with
¶ 12 Oscar next argues the evidence was insufficient to support the juvenile court‘s findings, by a preponderance of the evidence, that he had physically and emotionally abused C.F. He maintains “the only assertions of physical abuse . . . to any medical personnel” were made by J.S., “with no corroboration by C.F.” He also challenges the credibility of the psychologist who examined C.F. and concluded C.F. was a victim of emotional abuse who suffered “ongoing emotional trauma, likely [caused] by both parents.” But the cоurt also relied on video records of the children‘s interviews, which corroborated reports of the abuse, and it expressly found “no indication that the children were coached to make statements detrimеntal to [Oscar],” contrary to Oscar‘s assertions at the hearing.
¶ 13 The juvenile court, as the trier of fact, “is in the best position to weigh the evidence, observe the parties, judge the credibility of witnesses, and resolvе disputed facts.” Ariz. Dep‘t of Econ. Sec. v. Oscar O., 209 Ariz. 332, ¶ 4, 100 P.3d 943, 945 (App.2004). We do not reweigh the evidence on review, id. ¶ 14, and we make no exception here.
Disposition
¶ 14 The juvenile court was authorized by statute to adjudicate the children dependent as to Oscar, notwithstanding unresolved dependency allegations against the children‘s mother, J.S., who was participating in an in-home intervention at the time of the adjudication. The court‘s ruling is supported by reasonable evidence in the record. Accordingly, we affirm the court‘s order adjudicating E.F., M.F., C.F., G.F., and L.F. dependent as to Oscаr.
Notes
The court may adjudicatе a child dependent as to one parent or guardian and proceed with a disposition, review or permanency hearing or any other hearing as to that particular parent or guardian notwithstanding another parent‘s or guardian‘s request to contest the allegations in the petition or that another parent or guardian has not been served.