Lynandra W. v. Dcs ( 2015 )


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  •                       NOTICE: NOT FOR OFFICIAL PUBLICATION.
    UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
    AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
    IN THE
    ARIZONA COURT OF APPEALS
    DIVISION ONE
    LYNANDRA W., Appellant,
    v.
    DEPARTMENT OF CHILD SAFETY, D.P., G.P., Appellees.
    No. 1 CA-JV 15-0100
    FILED 10-29-2015
    Appeal from the Superior Court in Maricopa County
    No. JD17731
    The Honorable Bradley H. Astrowsky, Judge
    AFFIRMED
    COUNSEL
    Denise L. Carroll, Esq., Scottsdale
    By Denise L. Carroll
    Counsel for Appellant
    Arizona Attorney General’s Office, Phoenix
    By JoAnn Falgout
    Counsel for Appellees
    LYNANDRA W. v. DCS, et al.
    Decision of the Court
    MEMORANDUM DECISION
    Presiding Judge Kenton D. Jones delivered the decision of the Court, in
    which Judge Samuel A. Thumma and Judge Peter B. Swann joined.
    J O N E S, Judge:
    ¶1            Lynandra W. (Mother) argues insufficient evidence supports
    the juvenile court’s finding that D.P. and G.P. (collectively, the Children)
    were dependent as a result of Mother’s substance abuse. For the following
    reasons, we affirm.
    FACTS1 AND PROCEDURAL HISTORY
    ¶2            In October 2014, the Department of Child Safety (DCS)
    received a report that Mother and G.P. both tested positive for opiates and
    marijuana at the hospital following G.P.’s birth. Upon review of past
    reports of Mother and her other children2 testing positive for opiates and
    cocaine at birth, DCS filed a dependency petition as to G.P. and Mother’s
    then four-year-old son, D.P. Mother agreed to an in-home dependency,
    with maternal grandmother to serve as safety monitor, and to participate in
    urinalysis and hair follicle drug screens, as well as substance abuse
    treatment.
    ¶3            Between October and December 2014, Mother presented for
    seven of twenty-one required urinalysis tests. She tested positive for
    marijuana seven times, cocaine once, opiates once, provided an insufficient
    sample on one occasion, and missed thirty-one of fifty-three call-in days.
    As a result, DCS took temporary custody of the Children in December 2014,
    placed them in a licensed foster home, sought and obtained an order
    changing physical custody, and proceeded with its petition alleging Mother
    1      “On review of an adjudication of dependency, we view the evidence
    in the light most favorable to sustaining the juvenile court’s findings.”
    Willie G. v. Ariz. Dep't of Econ. Sec., 
    211 Ariz. 231
    , 235, ¶ 21 (App. 2005).
    2       The record reflects Mother and her newborn children tested positive
    for opiates and cocaine at their births in 2007 and 2009. Mother’s parental
    rights to those children were previously severed, and they are not parties
    to this appeal.
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    LYNANDRA W. v. DCS, et al.
    Decision of the Court
    was unable or unwilling to parent the Children as a result of substance
    abuse. A subsequent hair follicle drug screen of maternal grandmother, the
    safety monitor, also tested positive for methadone.
    ¶4            Mother contested the dependency petition but agreed at a
    December 2014 mediation to participate in parent aide and case aide
    services, supervised visitation, a psychological evaluation, substance abuse
    testing, and substance abuse assessment and treatment. DCS agreed to
    provide transportation services.        An adjudication hearing on the
    dependency petition was scheduled for March 5, 2015.
    ¶5              At the hearing, the DCS case manager expressed concerns
    regarding Mother’s ability to care for the Children while under the
    influence of drugs. After the Children were removed from Mother’s care,
    she presented for only two of seven required urinalysis tests in January 2015
    and tested positive for marijuana both times. Additionally, she missed nine
    of twenty-three call-in days. Between February 1 and 20, 2015, Mother
    presented for two of three required urinalysis tests and failed to call in five
    times. She tested positive for marijuana on the first test, and the second was
    still in process at the time of the hearing. Mother also refused to provide a
    hair follicle sample on two occasions in February.
    ¶6            Mother testified she knew she was supposed to call into the
    drug testing agency every day but provided no explanation for her failure
    to do so. She estimated she had missed “maybe five” tests because she did
    not have transportation. DCS conceded it had not provided Mother with
    transportation services as agreed at the mediation.
    ¶7           Mother also testified she had a “prescription” for two of the
    three substances she tested positive for at G.P.’s birth — marijuana and
    opiates. However, she did not provide a copy of any prescriptions or her
    medical marijuana card to DCS or the juvenile court. In fact, Mother
    admitted her medical marijuana card expired in early October 2014, and she
    had been purchasing and using marijuana illegally for the five months
    immediately preceding the trial. And, the DCS case manager testified that
    holding a medical marijuana card does not necessarily negate concerns
    about possible abuse or use while supervising the Children.
    ¶8            Mother completed the intake process for substance abuse
    treatment in January 2015, through which she was assessed with an opioid
    dependence disorder. The counselor noted Mother may have other
    possible substance use disorders, but “her evasiveness impedes one to
    determine such criteria.” Despite this assessment, Mother denied having
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    LYNANDRA W. v. DCS, et al.
    Decision of the Court
    any substance abuse problem, reasoning, “I’m prescribed a medicine that
    causes you to be addicted to it. . . . I’m out there just looking for drugs, no.”
    Mother denied any recent cocaine use and refused to participate in the
    recommended Intensive Outpatient Program, “display[ing] fury such that
    her body appeared shaking.” Mother called the treatment provider a few
    days later indicating she would participate but did not follow-up. The
    service was closed on February 9, 2015.
    ¶9            Although the juvenile court acknowledged communication
    issues between DCS and Mother, it found “credible the testimony that she
    missed required tests, tested positive for marijuana, and did so without a
    valid prescription, and that from the testimony of [the DCS case manager
    and investigator] and the Court’s own observations, her substance use and
    abuse impacts her ability to safely supervise the children.” The court also
    found Mother negatively impacted her credibility by failing to disclose her
    safety monitor’s methadone use, and Mother’s demeanor and presentation
    indicated her chronic substance abuse was “depressing . . . her cognitive
    ability.” The court further found DCS made reasonable, although
    ultimately unsuccessful, efforts to prevent an out-of-home placement by
    providing substance abuse assessment and treatment, drug testing, and
    implementation of a safety plan. See Ariz. Rev. Stat. (A.R.S.) § 8-844(B)3
    (directing the juvenile court to consider “the availability of reasonable
    services to the parent or guardian to prevent or eliminate the need for
    removal of the child”). Based upon these facts, the court concluded DCS
    had proven by a preponderance of the evidence that the Children were
    dependent as to Mother and adopted a primary case plan of family
    reunification, with a concurrent case plan of severance and adoption for
    G.P.4
    ¶10              Mother timely appealed. We have jurisdiction pursuant to
    A.R.S. §§ 8-235(A), 12-120.21(A)(1), and -2101(A)(1), and Arizona Rule of
    Procedure for the Juvenile Court 103(A). See Yavapai Cnty. Juv. Action No. J-
    8545, 
    140 Ariz. 10
    , 14 (1984) (holding “orders declaring children dependent
    . . . are final orders subject to appeal by aggrieved parties”).
    3     Absent material revisions from the relevant date, we cite a statute’s
    current version.
    4    The trial court also found the Children dependent as to their father.
    However, he did not dispute the finding and is not a party to this appeal.
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    LYNANDRA W. v. DCS, et al.
    Decision of the Court
    DISCUSSION
    ¶11          Mother argues DCS presented insufficient evidence to
    support an adjudication of dependency because: (1) DCS did not provide
    bus passes that Mother needed to complete services; and (2) DCS never
    requested a copy of Mother’s prescriptions, which she contends would
    have negated any finding that she had a substance abuse problem.
    ¶12            A “dependent child” is “one who has no parent or guardian
    willing to exercise or capable of exercising [effective parental] care and
    control.” A.R.S. § 8-201(14)(a)(i). A parent may be unable to discharge his
    parental responsibilities as a result of chronic abuse of dangerous drugs or
    controlled substances. See A.R.S. § 8-533(B)(3); Raymond F. v. Ariz. Dep’t of
    Econ. Sec., 
    224 Ariz. 373
    , 378, ¶ 23 (App. 2010) (affirming the juvenile court’s
    conclusion that a parent was unable to discharge his parental
    responsibilities as a result of chronic drug and alcohol abuse).
    ¶13            A finding of dependency requires proof by a preponderance
    of the evidence. A.R.S. § 8-844(C)(1). We review an order adjudicating
    children dependent for an abuse of discretion, deferring to the juvenile
    court’s ability to weigh and analyze the evidence. Louis C. v. Dep’t of Child
    Safety, 
    237 Ariz. 484
    , 488, ¶ 12 (App. 2015). We will therefore only disturb
    a dependency adjudication if no reasonable evidence supports it. 
    Id. (citing Willie
    G., 211 Ariz. at 231
    , ¶ 21). Viewing the evidence in the light most
    favorable to upholding the juvenile court’s ruling, we conclude sufficient
    evidence exists to support its finding of dependency.
    ¶14           First, Mother testified she missed “maybe five” tests for a lack
    of transportation. She did not, however, offer any explanation for fifteen
    other missed tests and the nearly fifty days she failed to call in to the testing
    center. The lack of bus passes, although unfortunate, was largely irrelevant
    to a determination of whether the Children are dependent.
    ¶15           Mother’s second argument is equally unpersuasive. The
    record reflects DCS requested Mother’s prescriptions5 on at least two
    5      Although this is the terminology used by Mother, we note that
    obtaining a valid medical marijuana card is not the same as possessing a
    prescription. Compare A.R.S. § 32-1901(77) (describing a “prescription
    order” as an order for drugs or devices issued from a licensed medical
    practitioner to a pharmacist), with A.R.S. § 36-2806.02 (permitting a
    dispensary to dispense marijuana to a “registered qualifying patient” under
    certain circumstances).
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    LYNANDRA W. v. DCS, et al.
    Decision of the Court
    occasions. Moreover, nothing prevented Mother from producing any
    prescriptions she had, and these documents were clearly within her control.
    Further, Mother admitted to purchasing and using marijuana illegally for
    the five months immediately before the evidentiary hearing. Finally, the
    mere existence of a prescription does not, in itself, vitiate the claim that
    Mother suffers from substance abuse and is unable to parent as a result.
    This is particularly true where Mother tested positive for substances she
    admits she does not have a prescription for and where the concern
    expressed by DCS is the Children’s safety, as well as whether Mother, even
    if using opiates and marijuana legally, “can be fully aware to provide for
    the [C]hildren emotionally and just be present with them.” The juvenile
    court acknowledged as much when it concluded Mother’s substance “use
    and abuse” affected her ability to parent.
    ¶16           Substantial evidence exists to support a finding that Mother
    failed to acknowledge, let alone address, DCS’s concerns with her drug use.
    Mother refused to participate in substance abuse treatment, content instead
    to simply deny having a substance abuse problem, deny using methadone
    or cocaine even though she tested positive for those substances, and deny
    that her actions had any negative affect on the Children even though the
    impact on her cognitive functioning was apparent to the juvenile court
    judge. The juvenile court specifically discredited Mother’s testimony and
    accepted DCS’s evidence that Mother suffered from a substance abuse
    problem that affected her ability to parent; we will not second-guess this
    assessment. See Christina G. v. Ariz. Dep’t of Econ. Sec., 
    227 Ariz. 231
    , 234,
    ¶ 13 (App. 2011) (“The juvenile court is in the best position to weigh the
    evidence, observe the parties, judge the credibility of witnesses, and make
    appropriate findings.”) (citing Jesus M. v. Ariz. Dep’t of Econ. Sec., 
    203 Ariz. 278
    , 280, ¶ 4 (App. 2002)). The court’s findings, supported by the record
    and coupled with its observations of Mother’s behavior and presentation,
    are sufficient to establish, by a preponderance of the evidence, that the
    Children are dependent.
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    LYNANDRA W. v. DCS, et al.
    Decision of the Court
    CONCLUSION
    ¶17         The order of the juvenile court finding the Children
    dependent as to Mother is affirmed.
    :ama
    7
    

Document Info

Docket Number: 1 CA-JV 15-0100

Filed Date: 10/29/2015

Precedential Status: Non-Precedential

Modified Date: 4/17/2021