                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                           MICHAEL T., Appellant,

                                        v.

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

                             No. 1 CA-JV 14-0177
                             FILED 11-25-2014


           Appeal from the Superior Court in Maricopa County
                             No. JD527230
            The Honorable Robert C. Houser, Judge Pro Tem
                The Honorable Janice Crawford, Judge

                                  AFFIRMED


                                    COUNSEL

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

Arizona Attorney General’s Office, Tucson
By Erika Z. Alfred
Counsel for Appellees
                        MICHAEL T. v. DCS, N.T.
                          Decision of the Court



                      MEMORANDUM DECISION

Judge Randall M. Howe delivered the decision of the Court, in which
Presiding Judge Patricia A. Orozco and Judge Maurice Portley joined.


H O W E, Judge:

¶1           Michael T. (“Father”) appeals the determination that his son,
N.T., was a dependent child. For the following reasons, we affirm.

                FACTS AND PROCEDURAL HISTORY

¶2            Father and Kristina T. (“Mother”), the biological parents of
N.T., born in May 2007, smoked marijuana. Mother and N.T. tested positive
for marijuana at the child’s birth. The couple continued to smoke marijuana
together. On one occasion, they smoked on Mother’s porch while N.T. was
“probably” in the house. N.T. told other people that he had seen his parents
smoke “pot,” meaning marijuana.

¶3           The parents ended their relationship in 2010, but Father
continued to see Mother and N.T., including caring for N.T. overnight and
dropping the child off at Mother’s place during the day. In 2012, Father
noticed that Mother was “up and down on dope,” meaning
methamphetamines, and “running around in the wrong crowd.” It was
“obvious” to Father that Mother was using methamphetamine, but he
continued to leave N.T. in Mother’s care. Although Father discussed
Mother’s drug use with his adult daughter, he did not follow up after his
daughter allegedly called CPS to no avail.

¶4           Father had started using marijuana when he was 15 years old,
used marijuana two or three times a day, and “might sneak a couple of hits
at lunch and in the evening.” He obtained a medical marijuana card in
January 2014. Father also drank to “numb his pain” from work, but tried
“to keep it under a six pack,” even though he was convicted in 2006 for
misdemeanor driving under the influence.




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                         MICHAEL T. v. DCS, N.T.
                           Decision of the Court

¶5             In December 2013, the Arizona Department of Economic
Security (“the Department”)1 received a report that (1) Mother was
neglecting N.T. because she was using methamphetamine and leaving N.T.
in the care of his grandmother, who abused prescription pain medication;
(2) the home was infested with bed bugs; and (3) N.T. had easy access to a
dangerous backyard and pool. When an investigator responded, Mother
appeared to be under the influence of drugs, N.T.’s grandmother was under
the influence of pain medication, and the backyard pool was green and
unfenced.

¶6            The Department took temporary protective custody of N.T.
and placed him in the care of his adult half-sister. Father then tested
positive for marijuana and told the Department that he drank often because
it was the only way to relieve his physical pain. Because Father had never
tried any substance abuse treatment, the Department recommended that
Father attend a substance abuse treatment program at TERROS, a
healthcare organization. The following month, TERROS recommended that
Father be placed in a standard outpatient treatment to “evaluat[e] [his]
medical marijuana levels and to evaluate [his] alcohol behaviors,” as well
as “to evaluate his using behaviors and how it may affect parenting.”

¶7            The Department subsequently filed a dependency petition
alleging that N.T. was dependent as to both his parents. The petition
contends that Father was unable to parent due to neglect and failure to
protect. Specifically, it alleged that “Father reported that he is frequently at
Mother’s home, but failed to protect the child against the dangers in the
backyard” and that he “admitted that he suspected that Mother was
abusing drugs, but did not take the necessary actions to protect the child
from Mother’s substance abuse.” The Department later amended its
pleadings to conform to the evidence and added an allegation of substance
abuse by Father.

¶8           After a contested hearing, the juvenile court adjudicated N.T.
dependent because Father failed to protect N.T. from Mother’s substance
abuse and his own substance abuse affected his ability to parent and protect
N.T. The court also found that out-of-home care was necessary to protect

       1 After Father filed this appeal, the Arizona legislature eliminated the
Child Protective Services and in its place created the Department of Child
Safety, an entity independent of the Arizona Department of Economic
Security. See S.B. 1001, 51st Leg., 2d Spec. Sess. (Ariz. 2014). To maintain
consistency with the juvenile court records, this Court will refer to the
parties as they existed at the time of the proceedings.


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                          MICHAEL T. v. DCS, N.T.
                            Decision of the Court

N.T.’s welfare and that his current placement with his adult half-sister was
the least restrictive placement consistent with his needs.

¶9          Father timely appealed. He also moved for return of N.T. and
requested an in-home dependency. But the juvenile court vacated the
scheduled hearing when Father did not appear.

                                DISCUSSION

¶10           Father argues that the juvenile court erred in finding N.T.
dependent because the Department failed to prove by a preponderance of
the evidence that the child was dependent. On review, we view the
evidence in the light most favorable to sustaining the juvenile court’s
findings. Oscar F. v. Ariz. Dep’t of Child Safety, 235 Ariz. 266, 267–68 ¶ 6, 330
P.3d 1023, 1024–25 (App. 2014). But we review de novo the court’s
interpretation and application of the dependency statute. Id.

¶11             Before a child can be found dependent, the Department must
prove by a preponderance of the evidence one of the grounds for a finding
of dependency in A.R.S. § 8–201(14)(a).Under this statute a dependent child
is one “[i]n need of proper and effective parental care and control and who
has . . . no parent or guardian willing to exercise or capable of exercising
such care and control,” or whose “home is unfit by reason of abuse, neglect,
cruelty or depravity by a parent, a guardian or any other person having
custody or care of the child.” A.R.S. § 8–201(14)(a)(i), (iii). Neglect includes
the “inability or unwillingness of a parent, guardian or custodian of a child
to provide that child with supervision, food, clothing, shelter or medical
care if that inability or unwillingness causes unreasonable risk of harm to
the child’s health or welfare.” A.R.S. § 8–201(24)(a). The primary
consideration in a dependency case is the child’s best interest. Michael M. v.
Ariz. Dep’t of Econ. Sec., 217 Ariz. 230, 234 ¶ 17, 172 P.3d 418, 422 (App. 2007).

¶12            In the present case, the evidence supports the court’s
dependency determination. Father testified that he knew that both Mother
and N.T. tested positive for marijuana when N.T. was born. He also testified
that he had concerns regarding Mother’s substance abuse for several years,
stating that she was “running around with the wrong crowd” and was “up
and down on dope.” However, Father did not remove or protect N.T. from
her care, despite his concerns of her drug use. Instead, he continued to
smoke marijuana with her; he never sought treatment for his drug abuse
and used alcohol to numb his pain; and their child was aware of their drug
use. The record provides sufficient evidence to support the juvenile court’s
finding that Father failed to protect N.T. from Mother’s substance abuse, as



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                         MICHAEL T. v. DCS, N.T.
                           Decision of the Court

well as the finding that Father’s history of abusing marijuana and alcohol
affected his ability to parent and protect N.T. Consequently, the juvenile
court did not err in adjudicating N.T. dependent with respect to Father.

¶13            Father argues in the alternative that the juvenile court abused
its discretion in ordering an out-of-home dependency. First, the record
supports the child’s removal and continued placement until Father
addressed the problems and issues revealed during the investigation and
dependency process. Second, although Father asked the court to consider
an in-home dependency, he did not appear at the evidentiary hearing. By
failing to appear, Father has failed to preserve—and therefore has
forfeited—the argument on appeal. See Motzer v. Escalante, 228 Ariz. 295,
298 ¶ 16, 265 P.3d 1094, 1097 (App. 2011) (“[A]rguments not made at the
trial court cannot be asserted on appeal.”); State v. Kinney, 225 Ariz. 550, 554
¶ 7, 241 P.3d 914, 918 (App. 2010) (“To preserve an argument for review,
the defendant must make a sufficient argument to allow a trial court to rule
on the issue.”).

                               CONCLUSION

¶14           For the foregoing reasons, we affirm.




                                    :gsh




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