                               NOTICE: NOT FOR PUBLICATION.
     UNDER ARIZ. R. SUP. CT. 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


                             RUSSELL P., Appellant,

                                          v.

 ARIZONA DEPARTMENT OF ECONOMIC SECURITY, R.P., Appellees.

                               No. 1 CA-JV 13-0279
                                 FILED 4-3-2014


           Appeal from the Superior Court in Maricopa County
                             No. JD510943
               The Honorable Peter A. Thompson, Judge

                                    AFFIRMED


                                    COUNSEL

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

Arizona Attorney General’s Office, Tucson
By Dawn R. Williams
Counsel for Appellees
                        RUSSELL P. v. ADES, R.P.
                          Decision of the Court



                           DECISION ORDER

Presiding Judge Donn Kessler delivered the decision of the Court, in
which Judge Patricia K. Norris and Judge Maurice Portley joined.


K E S S L E R, Presiding Judge:

¶1             Russell P. (“Father”) appeals the juvenile court’s order
finding his child, R.P., dependent. See Ariz. Rev. Stat. (“A.R.S.”) section
8-201(13)(a)(iii) (2013). For the following reasons, we affirm.

              FACTUAL AND PROCEDURAL HISTORY

¶2             Father is the biological parent and sole custodian of R.P.,
who was six-years old at the time of the underlying events. On February
12, 2013, R.P. told her teacher that her bottom hurt and, in response to the
teacher’s questions, told the teacher that, Father “pushed too hard and put
a hammer inside.” The teacher notified the school nurse of the statements,
who then reported the allegation to the police. The police reported the
allegation to Child Protective Services (“CPS”) who took custody of R.P.
and arranged for a forensic interview and physical examination. 1

¶3           During the interview, R.P. disclosed that Father “knocked
her bottom with a hammer.” R.P stated that it happened when she was
getting ready to go to school and when she got back from school. The
interviewer was unable to confirm what the child was referring to by the
term “hammer.” R.P. stated that the hammer was not a part of Father’s
body but demonstrated with stuffed animals that Father touched her
crotch area and that Father was partially on top of her on her bed. The
physical examination report found “no evidence of acute or healed
injury.” However, the medical provider explained that given the nature of
alleged sexual assaults, there might not be physical evidence of an injury.

¶4           Immediately following the forensic interview and physical
examination, CPS placed R.P. with her paternal aunt and then the paternal
grandmother pending dependency proceedings. On February 21, 2013,


1 The police investigation was later closed for a lack of independent,
corroborative evidence.



                                     2
                        RUSSELL P. v. ADES, R.P.
                          Decision of the Court

R.P. was admitted to Phoenix Children’s Hospital for mental illness and
psychotic episodes.    While there, R.P. had visual and auditory
hallucinations and changed her previous allegations against Father,
claiming an imaginary boy named Aiden hit her with the hammer.

¶5           R.P. is developmentally delayed and has been diagnosed
with autistic disorder, attention deficit hyperactivity disorder, sensory
processing disorder, and bipolar disorder. R.P. has a history of auditory
and visual hallucinations.

¶6             The court held a two-day dependency adjudication hearing.
The court heard testimony from two of R.P.’s teachers, R.P.’s forensic
interviewer, two CPS social workers, and R.P.’s mother, Father, paternal
aunt, and paternal grandmother. R.P.’s teachers testified that R.P. first
relayed to them the allegation against Father. The social workers testified
that R.P. repeated the allegations in the car ride to the hospital and in the
forensic interview. A recording of the interview was also submitted into
evidence and the court indicated that it closely reviewed that recording.
A psychological examination of Father stated that there was little concern
as to Father except for this alleged abuse, but recommended a
psychosexual examination of Father. R.P.’s aunt testified that R.P. had
severe behavioral and psychological issues, including aggression and
hallucinations, and that Father has been a model parent. R.P.’s paternal
grandmother testified that R.P. had recanted the allegations against Father
on several occasions. Father denied any assault occurred. The court
initially concluded that this was a very close case and a psychosexual
report of Father would be helpful in deciding the dependency issue, but,
because the evaluation might delay the court’s ruling on the dependency
petition, the State objected to having the evaluation ordered. 2

¶7             The court held that despite the case being based on a “single
allegation of abuse brought against what CPS . . . otherwise found to be a
fit and proper, if not, exceptional, parent” based on all the evidence and
the credibility of the witnesses, the State proved R.P. was dependent




2 Father subsequently participated in such an examination and submitted
it to the juvenile court. While this appeal was pending, the juvenile court
returned R.P. to Father. Both parties, however, asked this court to resolve
the appeal without waiting to see if the juvenile court would dismiss the
dependency at the next review hearing.



                                     3
                         RUSSELL P. v. ADES, R.P.
                           Decision of the Court

based on the allegation of a single incident of abuse. 3 Father timely
appealed. We have jurisdiction pursuant to A.R.S. § 12-120.21(A)(1)
(2003).

                               DISCUSSION

¶8            Father challenges the sufficiency of the evidence to support
the juvenile court’s finding of dependency. “We will not disturb the
juvenile court’s ruling in a dependency action unless the findings upon
which it is based are clearly erroneous and there is no reasonable evidence
supporting them.” Pima Cnty. Juv. Dependency Action No. 118537, 185 Ariz.
77, 79, 912 P.2d 1306, 1308 (App. 1994); see also Maricopa Cnty. Juv. Action
No. J-75482, 111 Ariz. 588, 591, 536 P.2d 197, 200 (1975) (“Generally, the
decision of the trial court as to the weight and effect of evidence will not
be disturbed unless it is clearly erroneous. All reasonable inferences must
be taken in favor of supporting the findings of the trial court, and if there
is any evidence to support the judgment, it must be affirmed.” (internal
citation omitted)).

¶9              “A parent has a constitutional right to raise his or her child
without governmental intervention. The government may not interfere
with that fundamental right unless a court finds that: (1) the parent is
unable to parent the child for any reason defined by statute; and (2) the
parent has been afforded due process.” Carolina H. v. Ariz. Dep’t of Econ.
Sec., 232 Ariz. 569, 571, ¶ 6, 307 P.3d 996, 998 (App. 2013). For a child to be
found dependent, the State must prove one of the grounds found in A.R.S.
§ 8-201(13)(a) by a preponderance of the evidence, including, for example,
that the child’s home is unfit by reason of abuse by a parent. A.R.S. § 8-
201(13)(a)(iii). Abuse includes infliction of physical injury or sexual abuse,
sexual conduct with a minor, sexual assault, or molestation of a child.
A.R.S. § 8-201(2)(a).

¶10          Father argues that the court erred in finding that the State
met its burden of proof, claiming there is no reasonable evidence in the
record to support a finding of dependency. Father argues that there is no
physical evidence to support the findings and the allegations were
irrational. Father further argues that the allegations are not credible
because they were made by a child who suffers from mental illness,
including auditory and visual hallucinations, and who has a history of


3The juvenile court also found R.P. was dependent as to Mother. Mother
did not appeal the ruling and is not a party to this appeal.



                                      4
                         RUSSELL P. v. ADES, R.P.
                           Decision of the Court

making allegations of harm by other caregivers. However, it is not for this
court to assess the credibility of evidence. See Maricopa Cnty. Juv. Action
No. JV-132905, 186 Ariz. 607, 609, 925 P.2d 748, 750 (App. 1996) (“The
juvenile court is in the best position to measure the credibility of
witnesses.”).

¶11            The juvenile court did not err in finding by a preponderance
of the evidence that R.P. was dependent as to Father because of a single
allegation of assault. In weighing the evidence, the court stated it had
considered the all the testimony and had closely watched the video
recording of the forensic interview of R.P. The court also considered
R.P.’s age, medical conditions, recantations, and previous,
unsubstantiated allegations of assault by caregivers. The court also
considered the evidence that it is common for children to later recant
allegations of abuse, but children rarely change the allegation to attribute
the abuse to another person. The court acknowledged that Father was
fully cooperative with CPS’s investigation and considered testimony
pointing to Father’s exemplary parenting but for the single allegation of
assault, including evidence that Father is a concerned and actively
engaged parent.

¶12           We agree with the juvenile court that this is a difficult case.
As the court explained:

              The decision here is a difficult one . . . [in]
              dealing with the possibility of an incorrect
              ruling. Children who are untruthful, who have
              imaginary friends . . . who are poor witnesses
              of events or unable to recall or describe details
              of their abuse or the perpetrator can still be
              victims of molest or physical abuse. Parents
              and caregivers can also be caught up in what
              are later learned to be false allegations against
              them with grave consequences to their lives
              and reputations . . . . [A]t this stage of the case
              the court is tasked with determining whether
              there is a mere preponderance of the evidence
              to sustain a finding of dependency . . . . After
              weighing the credibility of witness testimony
              and the proof presented; . . . the Department
              has established the allegations in the
              dependency petition by a preponderance of the
              evidence.


                                      5
                        RUSSELL P. v. ADES, R.P.
                          Decision of the Court

¶13           Despite this difficulty, based on the record and the standard
of review, there is reasonable evidence to support the juvenile court’s
decision that R.P. was dependent as to Father.

                             CONCLUSION

¶14          Having found that the juvenile court did not abuse its
discretion in finding that the evidence was sufficient to support the
juvenile court’s finding that R.P. was dependent as to Father, we affirm
the order.




                                    :MJT




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