Gerald M. v. Dep't of Child Safety
| Decision Date | 04 May 2016 |
| Docket Number | No. 2 CA-JV 2015-0130,2 CA-JV 2015-0130 |
| Parties | GERALD M., Appellant, v. DEPARTMENT OF CHILD SAFETY, M.M., AND E.M., Appellees. |
| Court | Court of Appeals of Arizona |
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f); Ariz. R. P. Juv. Ct. 103(G).
Appeal from the Superior Court in Pima County
The Honorable Geoffrey L. Ferlan, Judge Pro Tempore
VACATED AND REMANDED
Nuccio & Shirly, P.C., Tucson
By Jeanne Shirly
Counsel for Appellant
Mark Brnovich, Arizona Attorney General
By Laura J. Huff, Assistant Attorney General, Tucson
Counsel for Appellee Department of Child Safety
Presiding Judge Vásquez authored the decision of the Court, in which Judge Kelly1 concurred and Judge Howard dissented.
¶1 Gerald M. appeals from the juvenile court's July 2015 minute entry adjudicating his two daughters, M.M., born in September 2011, and E.M., born in October 2013, dependent as to him.2 He maintains evidence of his medical use of marijuana, as a cardholder under the Arizona Medical Marijuana Act (AMMA), see A.R.S. § 36-2801(2), and his previous unauthorized cultivation of the plant, is insufficient to support the dependency adjudication when "[t]he record is without any evidence that the children were being harmed or neglected." For the following reasons, we vacate the court's adjudication of dependency and remand the case for a redetermination of dependency that includes the court's consideration of the AMMA.
¶2 Sometime after midnight on March 10, 2015, Department of Child Safety (DCS) received a report that police officers responding to the family's home had discovered marijuana plants "being grown for personal consumption" in one of the bedrooms. Police verified that Gerald had "a medical marijuanacard for consumption" but was no longer authorized to cultivate the plants.3 According to DCS, the police reported that the children had "appear[ed] clean, healthy and well cared for" with "no known mental health [issues] or special needs."
¶3 At four a.m. that day, DCS took temporary custody of the children and placed them with their paternal grandparents, where Gerald and his wife, Charlotte, visited the children nearly every day.4 After hair-test reports for both children showed positive results for THC5 and a THC metabolite, DCS filed a petition alleging the children are dependent as to Gerald because he: (1) "places the children at risk for neglect by engaging in criminal activity in the home," specifically by "growing twelve plants of marijuana" when neither parent is licensed to do so; (2) "uses medical marijuana," reportedly "every hour," and "fails to perceive how marijuana may impair his ability to parent due to marijuana's sedating effect"; and (3) "neglects the children by exposing them to marijuana," as evinced by hair-test results.
¶4 At the dependency hearing, Gerald testified he has an Arizona medical marijuana card. He said he uses the drug to manage musculoskeletal back pain he has suffered since an automobile accident seven years ago. He denied saying he had used marijuana hourly, but he acknowledged he had been using it five to six times a day when the children were removed. Gerald reported he now uses it only in the morning and at night. He said marijuana is more effective in relieving his back pain than other remedies hehad tried—including injections, opiates, physical therapy, and chiropractic care—and it alleviates both his skeletal and muscular pain. Gerald asserted the children always have had plenty of food and appropriate supervision, housing, clothing, and medical care.
¶5 Charlotte was the only witness DCS called to testify at the contested dependency hearing. She stated that the girls appeared developmentally on-target and that she and Gerald "always made sure they had everything that they needed and wanted and more." She responded affirmatively when asked whether Gerald could safely parent the children "while he's under the influence" of marijuana, even if that circumstance is not "ideal." She answered "[n]o" when asked if she had ever seen Gerald do anything unsafe or "miss any cues" related to the children's needs or possible sources of danger after he had used marijuana.
¶6 With respect to the marijuana plants that prompted the children's removal, Charlotte testified the children never had access to the plants, which were kept behind closed doors, or to usable marijuana, which generally was kept in a safe. Both parents stated that they have not cultivated marijuana plants since the children's removal and have no intention of doing so. Neither has been charged criminally for the marijuana plants removed from the home in March. Gerald estimates his marijuana, now purchased from a medical marijuana dispensary, costs $100 per month, and both parents testified they are able to budget for that amount.
¶7 According to the parents, they never had intended to expose their daughters to marijuana smoke. In relation to the children's positive hair-test results, Charlotte testified Gerald had smoked marijuana only in the laundry room or in a bedroom that was "away from the girls' room and from the living room." With respect to protecting the children from such exposure in the future, both testified that Gerald now smokes marijuana only in "the farthest point of the backyard," which is approximately "100 feet from the home."6
¶8 Apart from the parents' testimony, the only other evidence consisted of DCS's exhibits—the preliminary protective hearing (PPH) report prepared by DCS and drug-test reports for Gerald, Charlotte, and the children—all of which were admitted without objection. According to the PPH report, the children appeared "well cared for" and "on pace developmentally." The March 2015 "Hair 5 Drug Panel" test reports indicated hair samples for Gerald, Charlotte, M.M., and E.M. had been "positive" for THC without quantification. Levels of an unidentified "THC Metabolite" in the samples were reported as follows: Gerald, 202.96 pg/mg; Charlotte, 13.57 pg/mg; M.M., .55 pg/mg; and E.M., 1.06 pg/mg. The reports did not include any interpretation of these results.7
¶9 At the close of evidence, DCS argued the children were dependent as to Gerald because he "still would be under the influence while caring for the children while [Charlotte is] at work." According to DCS, although Gerald has a medical marijuana card, "marijuana, unlike alcohol or prescription drugs, is illegal and . . . [c]learly, . . . the parents, by using marijuana, have neglected their children."
¶10 During his closing argument, Gerald moved to dismiss the dependency petition, arguing there was no evidence to support a finding that the children were adversely affected by his cultivation or use of marijuana. Noting undisputed evidence that the children "were properly cared for and . . . developmentally appropriate," he argued evidence of his marijuana use, standing alone, was insufficient to support a finding of dependency and DCS had failed to show that his marijuana use adversely affected the children.
Specifically, he argued DCS failed to offer any evidence to show the relevance of the hair tests to the issue of neglect.
¶11 Similarly, Gerald challenged the sufficiency of the evidence to prove he places the children "at risk for neglect" because he had been "engaging in criminal activity in the home" by cultivating marijuana. He maintained it would be "speculative" to find an "unreasonable risk of harm to the child[ren]'s welfare" based on the possibility that a parent might be arrested, leaving the children "without a caregiver," citing undisputed evidence that neither parent has been charged for the cultivation discovered in March and that neither has cultivated marijuana since that time.
¶12 Children's counsel stated, "[t]here's no real dispute" that "the parents were very solid caregivers," noting "[t]he kids are developmentally doing very well [and are] happy and healthy." Nonetheless, he supported the dependency, citing "the consequences that come" from "inebriated caregivers" and the "issue . . . of safety moving forward and the commitment to sobriety."
¶13 The juvenile court granted DCS's petition from the bench, expressing various concerns about Gerald's ability to parent the children and finding DCS had met its burden of proving the allegations in the dependency petition, referring to "what has been shown by a preponderance of the evidence." In its signed minute entry, the court incorporated "its considerations [as stated] on the record" in support of its determination.
¶14 The juvenile court appears to have found that Gerald was purchasing marijuana in compliance with the AMMA at the time of adjudication, but counsel did not raise, and the court apparently did not consider, application of the discrimination prohibitions in the AMMA, which provide, in relevant part, that "[n]o person may be denied custody of . . . a minor, and there is no presumption of neglect or child endangerment for conduct allowed under [the AMMA], unless the person's behavior creates an unreasonable danger to the safety of the minor as established by clear and convincing evidence." A.R.S. § 36-2813(D).
¶15 We recognize that Gerald had violated the AMMA before the children were removed by cultivating marijuana without authorization. We remand the case for the juvenile court to expressly determine whether, at the time of the dependency determination, Gerald was using marijuana in compliance with the AMMA. If so, the court must give consideration to provisions of the AMMA in determining whether the evidence was sufficient to find the children dependent as to Gerald. For the benefit of the court's review on remand, we also address Gerald's arguments with respect to the allegations in the petition, as well as some of the considerations identified by the court in support of its...
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