THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24

MEMORANDUM DECISION

OROZCO, Judge

¶ 1 Appellant Ricardo A. (Father) appeals a juvenile court order adjudicating his children, Julian and Jacklyn (the Children), dependent pursuant to Arizona Revised Statutes (A.R.S.) section 8-844.C (Supp. 2011).1 He claims the juvenile court erred because the Arizona Department of Economic Security (ADES) failed to prove the allegations in the petition for dependency by a preponderance of the evidence.

PROCEDURAL AND FACTUAL HISTORY

¶ 2 Father and Kimberly F. (Mother) are the unmarried biological parents of Julian, Jacklyn and Nadia. On February 10, 2011, Mother and Father consumed an unknown quantity of alcohol and Mother later admitted that she became intoxicated. That night, Mother slept by herself in the couple's bedroom while Father slept in the couple's living room with Nadia. When Nadia began to cry during the night, Father took her to the bedroom where Mother was sleeping and told Mother to care for her. When Mother awoke the next day, she found Nadia partially under her, facedown and not breathing.2 Nadia was taken to a hospital and pronounced dead due to accidental suffocation.

¶ 3 Following Nadia's death, ADES filed a petition for dependency, alleging the Children to be dependent "due to substance abuse and/or neglect as to [Mother]" and "due to failure to protect, neglect and/or domestic violence as to [Father]." Although she denied the allegations in the petition, Mother stipulated to a finding of dependency.3 Father contested the dependency and the juvenile court held a contested dependency hearing. Following the hearing, the juvenile court adjudicated the Children dependent, finding that ADES had proven the allegations in the petition by a preponderance of the evidence. The court found that Father "was negligent in his actions on February 10, 2011 when he placed his daughter Nadia in [Mother's] care" because he "failed to verify if [Mother] was capable of assuming care of the child." The court reasoned:

The court also found "a continuing pattern and concern about [Father's] failure to appreciate the need to make sure that the [C]hildren's physical, emotional, and mental health is maintained. That's part of the job of being a father. And . . . he's been neglectful in that."

¶ 4 The court filed a signed order adjudicating the children dependent. Father filed a timely notice of appeal. We have jurisdiction pursuant to A.R.S §§ 8-235.A (2007), 12-120.21.A.1 (2003) and 12-2101.A.1 (Supp. 2011).

DISCUSSION

¶ 5 On appeal, we review an adjudication of dependency for an abuse of discretion. Willie G. v. Ariz. Dep't of Econ. Sec., 211 Ariz. 231, 235, ¶ 21, 119 P.3d 1034, 1038 (App. 2005) ("[B]ecause the primary consideration in a dependency case is always the best interest of the child, the juvenile court is vested with a great deal of discretion." (citations and internal punctuation omitted)). We view the evidence in the light most favorable to sustaining the juvenile court's findings and we will not disturb the court's order unless no reasonable evidence supports it. Id.

¶ 6 Father claims ADES failed to present sufficient evidence to prove the allegations in the dependency petition. To adjudicate a child dependent, a juvenile court must find by a preponderance of the evidence that the allegations in the dependency petition are true. A.R.S. § 8-844.C.1.

¶ 7 In this case, ADES alleged two bases for termination. First, ADES alleged that Mother was "neglecting [the Children] due to [her] substance abuse" and that Father "failed to protect [the Children] from [Mother's] substance abuse." Specifically, ADES claimed that Father "placed his daughter Nadia in [Mother]'s care and control on February 10, 2011, despite knowing that she was extremely intoxicated" and "remain[ed] unable to recognize the safety risks and safety threats associated with [Mother]'s alcohol consumption." Second, ADES alleged that Mother and Father were "unfit by reason of domestic violence" because of their history of "engaging in domestic violence in the home and in the presence of the [C]hildren."

¶ 8 Father first argues that, as an essential element of its dependency claim, ADES was required to prove by a preponderance of the evidence that Mother was "extremely intoxicated" when Father placed Nadia in her care. Father contends that ADES failed to prove Mother was "extremely intoxicated" because ADES's witnesses were unable to testify as to the amount of alcohol Mother consumed that night. Father's argument fails because it too narrowly construes ADES's allegation and burden of proof. Although ADES did claim that Mother was "extremely intoxicated" when Father placed Nadia in her care, we interpret ADES's basis for dependency to be Father's inability to recognize the risks associated with Mother's substance abuse and his general failure to protect the Children from the substance abuse. Contrary to Father's argument, the characterization of Mother's level of intoxication on February 10 was not an essential element of the dependency claim that ADES was required to prove by a preponderance of the evidence.4 See A.R.S. § 8-841.B.3 (Supp. 2011) (The petition for dependency shall contain a "concise statement of facts to support the conclusion that the child is dependent.").

¶ 9 Father next argues that even if Mother's "extreme intoxication" was not an essential element of ADES's allegation, ADES nevertheless failed to present any evidence that Mother was impaired by alcohol on the night in question. Specifically, Father contends there was insufficient evidence to support a finding that Mother was intoxicated because "none of ADES's witnesses can or did point to any concrete facts or evidence" and "no physical evidence was produced or entered at trial suggesting [M]other was [intoxicated]." We disagree. ADES offered into evidence two reports — one from ADES and one from the Show Low Police Department — that describe Mother's intoxication and recorded statements from both Mother and Father regarding Mother's alcohol consumption.5 In its report, ADES documented Mother's acknowledgement that on February 10 she "drank heavily" and "became extremely intoxicated." The ADES report also discussed Mother's admission that she was "using the alcohol to self-medicate her depression." The police report documents Father's statement that Mother "had been drinking pretty much all though the day." The police report also records Mother's claim that she had no memory of Father waking her or placing Nadia in her care. Further, the ADES case manager testified at the hearing that Father admitted Mother had been drinking throughout the day on February 10 and that Mother became "obnoxious" and "drunk." We find this evidence is sufficient to support the finding that Mother had been intoxicated on February 10.

¶ 10 Moreover, ADES presented evidence that Mother suffered from alcohol dependency and ongoing substance abuse problems, which consequently created a risk to the health and safety of the Children.6 ADES produced evidence that Mother had been diagnosed with alcohol dependence by a substance abuse counselor. The ADES case manager also testified that ADES was concerned about Mother's substance abuse problem. In her report, the case manager documented ADES's concern that "when alcohol is present the children are in imminent risk of harm" and she testified that there was a "concern . . . that what happened to [Nadia] because of [Mother's] drinking could happen to [the Children] as well." In addition, although the counselor and ADES recommended that Mother participate in a substance abuse treatment program, Mother failed to attend the treatment sessions.

¶ 11 The record also contains sufficient evidence to support the court's finding that Father neglected Nadia when he placed her in Mother's care.7 At the hearing, a ADES case manager testified that Father was aware that Mother had been drinking on February 10 but he nevertheless placed Nadia in Mother's care without verifying if Mother was capable of taking care of the child. The case manager and a social worker each opined that Father was neglectful in both placing Nadia with Mother after Mother had been drinking and failing to verify whether Mother had the capacity to assume care of Nadia.8

¶ 12 In addition, ADES presented substantial evidence that Father refused to acknowledge Mother's substance abuse and failed to recognize that Mother's condition posed a risk to the Children's health and safety. The ADES case manager testified that although Father stated that he did not believe Mother could parent the Children, he nevertheless would allow the Children to be in Mother's unsupervised care. The case manager also documented Father's continued consumption of alcohol with Mother following Nadia's death, despite ADES recommendations that Mother receive substance abuse treatment. Due to his failure to recognize the risk posed by Mother's substance abuse, the ADES case manager opined that Father was unable to protect the Children from Mother while she was intoxicated.

¶ 13 We therefore find ADES presented substantial evidence to support the findings that Mother's substance abuse posed a risk to the Children and that Father was either unwilling or unable to recognize the risks associated with Mother's substance abuse. Consequently, the juvenile court did not abuse its discretion in finding that Father failed to protect the Children.

¶ 14 Father next argues the juvenile court "did not find a dependency [due to] domestic violence" because it "made no specific finding of an unfit home by reason of domestic violence." However, we need not address this issue as there was sufficient evidence of neglect to uphold the juvenile court's finding that the children were dependent on the basis described above in ¶ 13.

¶ 15 Finally, Father claims the juvenile court abused its discretion "by making findings of Dependency in its Minute Entry and Order that do not reflect its actual findings on the record." Upon review of the record, we reject Father's argument. On the record at the hearing, the court found "a factual basis by a preponderance of the evidence for the dependency" because: (1) Father was neglectful when he placed Nadia in Mother's care on February 10 and (2) Father demonstrated a continuing pattern of failing to appreciate the Children's needs. In the corresponding minute entry, the court found that ADES "has proven the allegations in the dependency petition by a preponderance of the evidence" because Father: (1) "was negligent in his actions on February 10" and (2) "exhibited a continuing pattern of neglect as to his minor children." In the signed dependency order, the court found that the allegation of dependency was "sustained by the evidence." Based on this language, we conclude that the court's findings in the minute entry and order do accurately reflect its findings on the record, and we therefore find no error or abuse of discretion.

CONCLUSION

¶ 16 For the reasons set forth above, we affirm the juvenile court order adjudicating Julian and Jacklyn dependent as to Father.

PHILIP HALL, Judge, and JOHN C. GEMMILL, Judge, concurring.