Magdalena E. v. Dcs, A.R. ( 2021 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
MAGDALENA E., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, A.R., Appellees.
No. 1 CA-JV 21-0219
FILED 11-30-2021
Appeal from the Superior Court in Maricopa County
No. JD 40651
The Honorable Michael J. Herrod, Judge
AFFIRMED
COUNSEL
Czop Law Firm, PLLC, Higley
By Steven Czop
Counsel for Appellant
Arizona Attorney General’s Office, Tucson
By Jennifer R. Blum
Counsel for Appellee, Department of Child Safety
MAGDALENA E. v. DCS, A.R.
Decision of the Court
MEMORANDUM DECISION
Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Brian Y. Furuya joined.
B R O W N, Judge:
¶1 Magdalena E. (“Mother”) appeals the juvenile court’s order
finding her son, A.R., dependent. Because reasonable evidence supports
the court’s order, we affirm.
BACKGROUND
¶2 Mother and Abraham R. (“Father”) are the biological parents
of A.R., born in September 2020.1 A.R. was born exposed to marijuana and
amphetamines. As a result, the Department of Child Safety (“DCS”)
created an in-home safety plan that required Mother’s contact with A.R. to
be supervised. Mother, Father, and A.R. lived with Father’s sister (“Aunt”)
and paternal grandmother, who acted as safety monitors. Throughout
October 2020, Mother participated in services and provided negative drug
tests; although Mother had two no shows, she tested negative the day
before for each. The following month she missed several drug tests and
group treatment sessions, and she was deemed “resistant” to treatment. In
December, Mother missed all of her drug tests and only attended two group
treatment sessions.
¶3 On January 5, 2021, Mother tested positive for marijuana,
amphetamine, and methamphetamine. She tested positive for
amphetamine on January 14, for marijuana and methamphetamine on
January 15, and for methamphetamine on January 19. Mother entered
inpatient substance abuse treatment at TERROS’s Maverick House on
January 20 but left six days later without completing her treatment
program. Aunt decided Mother could no longer live in Aunt’s home due
to concerns that Mother was abusing substances around Aunt’s two
children. Mother then entered inpatient treatment at Lifewell on February
27, but voluntarily discharged on March 15, having only partially
1 The juvenile court also determined that A.R. is dependent as to Father,
but Father is not a party to this appeal.
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MAGDALENA E. v. DCS, A.R.
Decision of the Court
completed her treatment program. She briefly stayed with her mother
before moving into a hotel.
¶4 Shortly after, DCS filed a petition alleging A.R. was
dependent as to both parents. As pertinent here, DCS alleged that Mother
failed to provide appropriate parental care by neglecting A.R. due to her
substance abuse during the pregnancy, continuing to use drugs after giving
birth, and failing to remain consistent with her substance abuse treatment.
¶5 A contested dependency hearing was held in June 2021. The
juvenile court heard testimony from Father and Aunt; Mother did not
testify. The court also considered various exhibits submitted by DCS,
including progress reports, team decision-making notes, and Mother’s drug
treatment records. The court granted DCS’s petition, noting Mother’s
unsuccessful efforts to complete inpatient treatment and her lack of family
support. The court explained that Mother was obligated to participate in
testing twice a week but had failed to successfully complete any drug test
since March 24, 2021. The court also found that Mother’s earlier tests were
“sporadic with some positive tests, but mainly Mother did not call.” The
court concluded that given Mother’s missed tests, the presumption is that
she “is still using drugs.” Mother timely appealed, and we have jurisdiction
under A.R.S. § 8-235(A).
DISCUSSION
¶6 We review an order adjudicating a child 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 only disturb a dependency adjudication if no
reasonable evidence supports it. Id.¶7 To support a dependency finding, as pertinent here DCS was
required to prove by a preponderance of the evidence, A.R.S. § 8-844(C)(1),
that A.R. was “[i]n need of proper and effective parental care and control,”
that Mother was not “willing to exercise or capable of exercising such care
and control,” and that his home was unfit due to Mother’s neglect under
A.R.S. § 8–201(15)(a)(i), (iii). Although the court must consider the
“circumstances existing at the time of the adjudication hearing,” the
conditions for dependency “need not be continuous or actively occurring
at the time of the adjudication hearing to support a finding of dependency
on these grounds; the substantiated and unresolved threat is
sufficient.” Shella H. v. Dep’t of Child Safety, 239 Ariz. 47, 50–51, ¶¶ 12, 16
(App. 2016).
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MAGDALENA E. v. DCS, A.R.
Decision of the Court
¶8 Mother argues the juvenile court erred in finding A.R.
dependent because DCS failed to provide evidence that she had a current
substance abuse problem, and the court’s finding that she was still using
drugs because she did not engage in drug testing is too speculative. Mother
contends that DCS presented no evidence to contradict her stability at the
time of the dependency hearing. The record shows otherwise.
¶9 Mother has been abusing substances for approximately 24
years, since age 14, acknowledging that her longest period of sobriety has
been about two months. She previously participated in substance abuse
treatment but did not complete her last two inpatient treatment programs
and has been unable to demonstrate sobriety. At the time of the
dependency hearing, Mother had not successfully completed a drug test for
almost three months. The juvenile court could properly presume she was
still using drugs, and thus implicitly conclude that Mother’s inability to
overcome her substance abuse problem was a substantiated and unresolved
threat to A.R. See Shella H., 239 Ariz. at 50–51, ¶¶ 12, 16. Reasonable
evidence supports the court’s dependency findings.
CONCLUSION
¶10 We affirm the juvenile court’s order finding A.R. dependent
as to Mother.
AMY M. WOOD • Clerk of the Court
FILED: AA
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