                      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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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).


                                       5
                       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




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