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

Not for Publication Rule 28, Rules of Civil Appellate Procedure

MEMORANDUM DECISION

VÁSQUEZ, Presiding Judge.

¶1 Felisa M., mother of Camai M., born in August 2005, and Jami M., born in October 2008, appeals from the placement and visitation order entered in this dependency proceeding. She contends the juvenile court abused its discretion by removing the children from their kinship placement with the children's godfather and placing them in separate foster homes. We affirm the court's ruling for the reasons stated below.

¶2 In April 2011, the Arizona Department of Economic Security (ADES) took physical custody of Camai and Jami and filed a dependency petition alleging, inter alia, the children were dependent because Felisa had been hospitalized after attempting suicide and because she had left them in the care of Bennie H., her former husband, though not the father of Camai and Jami, and his roommate Leon S., apparently the children's godfather, neither of whom had any legal authority to care for the children. ADES alleged Felisa had a lengthy history with Child Protective Services (CPS) and that four older children had been removed from her custody and adjudicated dependent; her rights to one child subsequently were terminated based on the length of time in court-ordered care and Felisa's substance abuse and mental illness, and another child remained dependent. Camai and Jami were adjudicated dependent in June 2011 after Felisa admitted allegations in a dependency petition that was amended to reflect, inter alia, she had continued to have contact with all of her older children notwithstanding the dependency and severance adjudications, that Camai suffered from extreme asthma and allergies, and, that she had not executed a power of attorney providing Bennie or Leon legal authority to provide care for the children at the time they were removed.

¶3 ADES placed the children with Leon, who had been caring for them extensively. Although initially opposed to continuing that placement, at the continued preliminary protective hearing, ADES supported the continued placement of the children with Leon, assuming the court were to find him of good moral character and provided he abided by ADES's placement agreement. The children's counsel, however, objected to the characterization of Leon as a person of good moral character, because she was concerned that Leon initially had told her neither he nor Bennie had a criminal history despite the fact that Bennie had been arrested for domestic violence. The court made that finding nevertheless and ordered a kinship placement of the children with Leon, specifying that no one else was to be at the home unless first approved by CPS.

¶4 In February 2012, the children's guardian ad litem informed the parties she had discovered that Bennie maintained various internet websites that were sexual in nature, advertising the availability of women for hire for events or parties. Some of the websites offered women the opportunity to perform with well-known pornographic film stars or to become a sexual bondage model. Contact information, including telephone numbers and addresses, for Bennie and Leon were provided on these websites. There was evidence that Bennie had produced two pornographic films. The guardian ad litem also discovered that Bennie had convictions from the Pima County Justice Court for disorderly conduct and writing a bad check and that he had been indicted for procuring or placing a person in a house of prostitution.

¶5 ADES removed the children from the home the next day and placed them in separate licensed foster-care homes. Leon filed a motion to intervene in the dependency proceeding, requesting that the children be returned to him or that he be given visitation. The guardian ad litem and ADES opposed Leon's intervention, but Felisa filed a response to Leon's motion in which she agreed he should be permitted to intervene and approved of the children's placement with him. In April 2012, the juvenile court granted Leon's motion to intervene. After a four-day placement and visitation hearing, the court issued an eight-page under-advisement ruling in which it reviewed the history of the case, summarized the evidence presented at the hearing, and entered factual findings based on that evidence. The court concluded it was not in the children's best interests to be placed with Leon but directed ADES to offer Leon visits with the children. This appeal by Felisa followed. Although the court did not expressly find that ADES had made the right decision by removing the children from the home when the information regarding the pornographic websites came to light, it did so implicitly by finding the children were at risk in the home and continued placement with Leon at that time was not in the children's best interests.

¶6 Felisa first contends CPS had "no cause" to remove the children from Leon's home under A.R.S. § 8-517. She also contends the juvenile court abused its discretion by placing the children in foster-care placements rather than with Leon. A juvenile court has "substantial discretion" when placing a dependent child because its primary consideration is the child's best interests. See Antonio P. v. Ariz. Dep't of Econ. Sec., 218 Ariz. 402, ¶ 8, 187 P.3d 1115, 1117 (App. 2008). We review the court's placement decision for an abuse of discretion. Id.

¶7 Additionally, as with any ruling in a dependency proceeding, we view the evidence in the light most favorable to sustaining factual findings upon which the juvenile court's ruling is based. See Willie G. v. Ariz. Dep't of Econ. Sec., 211 Ariz. 231, ¶ 21, 119 P.3d 1034, 1038 (App. 2005). We do not reweigh the evidence because 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 resolve disputed facts." Ariz. Dep't of Econ. Sec. v. Oscar O., 209 Ariz. 332, ¶ 4, 100 P.3d 943, 945 (App. 2004).

¶8 Felisa first complains about the initial removal of the children from Leon's home, asserting there was insufficient reason for ADES to do so under § 8-517 and that ADES had failed to comply with that statute, which permits removal of a child from a placement only when ADES "determines that withdrawal is according to written, specific standards and is clearly necessary for the child's interests and welfare." ADES asserts Felisa has waived this argument by failing to assert it below and, in any event, the statute relates to ADES's "internal procedures and would therefore be inapplicable here." But even assuming this issue had been raised below, albeit indirectly as part of Felisa's overall objection to the initial removal of the children and their continued placement in foster care, by finding the children could not be placed with Leon at that time and that continued placement in their respective foster homes was in their best interests, the juvenile court implicitly found the initial removal had also been in the children's best interests. See A.R.S. § 8-515.05 (child may be removed from foster parent's custody to protect child from harm).

¶9 As ADES points out, a child's best interests are always paramount. See A.R.S. §§ 8-517, 8-845(B). Even assuming arguendo ADES had not followed to the letter its removal protocol, Felisa has cited no authority for the proposition that at this point, following a hearing and the juvenile court's determination that the children's initial and continued removal from Leon's home is in their best interests, the remedy would be return of the children. Any such deficiency in this regard was essentially rendered moot by the court's findings of fact and its conclusions based on those findings.

¶10 Felisa also has failed to establish the juvenile court abused its discretion in approving the children's continued non-relative placement as opposed to placing them with Leon, a kinship placement. Although A.R.S. § 8-514(B) recognizes kinship placements among the statutory placement preferences, as ADES points out, this court has held that statutory placement preferences are not mandates that must be strictly followed, rather, first and foremost, a child's placement must be consistent with that child's needs and best interests. Antonio P., 218 Ariz. 402, ¶¶ 8, 12, 187 P.3d at 1117-18.

¶11 In its ruling, the juvenile court reviewed the evidence, weighed the evidence, and concluded it was "not in the best interest of Camai and Jami to be returned" to Leon at that time, despite the fact he appeared to be a "loving caregiver" to them. The court expressly acknowledged that it was not foreclosing the possibility of Leon serving as a long-term placement if he were to address the issues the court had specified by, inter alia, "participat[ing] in a psychological evaluation to assess his ability to identify and appreciate risk factors to children and ability to protect [them] and . . . [by] participat[ing] in services to enhance his understanding of the protection issues." The court's ruling thoroughly, clearly, and correctly resolved the issues before it, and we see no purpose in restating the ruling here in its entirety. See Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, ¶ 16, 53 P.3d 203, 207-08 (App. 2002), citing State v. Whipple, 177 Ariz. 272, 274, 866 P.2d 1358, 1360 (App. 1993). Rather, because there is reasonable evidence in the record to support the factual findings upon which the ruling is based, we adopt it. See id. As we previously stated, we will not reweigh the evidence, Oscar O., 209 Ariz. 332, ¶ 4, 100 P.3d at 945, which is essentially what Felisa is asking us to do in urging us to reverse the placement and visitation order.

¶12 For the reasons stated, the juvenile court's June 25, 2012, placement and visitation order is affirmed.

PHILIP G. ESPINOSA, Judge, VIRGINIA C. KELLY, Judge, concurring.