In Re Dependency Of: C.r.m., Dob: 7/11/11, Tia Cusick, Appellant V. Dcyf, Respondent

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FILED
6/15/2020
Court of Appeals
Division |
State of Washington

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Dependency of:
C.R.M, DIVISION ONE
D.O.B.: 07/11/2011,

No. 80006-0-1
Mnnor Child,
TIA CUSICK,
UNPUBLISHED OPINION
Appellant,
V.
STATE OF WASHINGTON,
DEPARTMENT OF CHILDREN,

YOUTH, AND FAMILIES,

Respondent,

DWYER, J. — Tia Cusick appeals the trial court’s order finding that her son,
C.R.M, was a dependent child. Cusick argues that insufficient evidence
supports the dependency. We conclude that substantial evidence supports the
findings of fact, and that the findings of fact support the conclusion of law that
C.R.M is a dependent child. We affirm.

I
Tia Cusick is the mother of C.R.M, bom in July 2011. Cusick and C.R.M.

lived with Cusick’s parents in their home. Cusick has battled substance abuse

No. 80006-0-I/2
2
issues for many years. She was charged with driving under the influence (DUI)
four times between 2007 and 2012. She lost her nursing job because she failed
a urinalysis test and was accused of diverting medications. She completed
several chemical dependency treatment programs between 2007 and 2017 but
could not maintain her sobriety.
On July 29, 2018, multiple witnesses called 911 to report concerns about
Cusick’s erratic and unsafe driving on I-90 with C.R.M. in the car. A driver
attempted to slow Cusick’s car by using his own car to block her. He saw
Cusick’s car collide with a retaining wall as she drove onward. Cusick eventually
arrived at a QFC, where witnesses reported that she was behaving strangely.
Police arrested Cusick for DUI and reckless endangerment of C.R.M. She
pleaded guilty to DUI and received a suspended sentence with mandatory
conditions, including treatment. After entering her plea, her blood test results
came back positive for cocaine, methamphetamine, and oxycodone.
On August 16, 2018, the Department of Children, Youth, and Families (the
Department) filed a dependency petition alleging both abuse and neglect of
C.R.M. and the absence of a parent or guardian adequately capable of caring for
C.R.M.1 The petition referenced the details of Cusick’s most recent DUI, as well
as her prior DUIs, her history of substance abuse issues, and her denial of
current drug use.
1 The court entered an agreed dependency petition as to C.R.M.’s father on October 26,
2018. He is not a participant in this appeal.

No. 80006-0-I/3
3
Upon Cusick’s release from custody, she began chemical dependency
treatment at Integration of Knowledge and Resources for Occupational Needs
(IKRON). There, she was diagnosed with major depressive disorder, recurrent
mild and generalized anxiety disorder, alcohol abuse disorder, cocaine use
disorder, and opiate use disorder. The initial recommendation was for relapse
prevention, but due to her history it was modified to intensive outpatient
treatment. Despite providing several urinalysis tests that came back positive for
prescription medications, Cusick graduated from intensive outpatient treatment in
January 2019 and moved to relapse prevention.
A six-day bench trial on the dependency petition took place in March
2019. The court heard testimony from six witnesses.
Cusick testified that she is a “good mom” who will do anything it takes to
be with her child. She asserted that she actively sought recovery and
demonstrated progress and commitment by attending all meetings, never
missing a urinalysis test, asking for help, and listening to other people’s point of
view. She admitted to her substance abuse struggle and the negative impact it
has had on her life. She described how treatment provided her with skills and
resources for recovery and improved her ability to cope with negative emotions.
And she credited her substance abuse counselor with helping her make
significant progress.
However, when asked about her erratic driving on July 29, 2018, Cusick
continued to maintain that it was due to a panic attack. She admitted that she
used cocaine and oxycodone two days prior but denied having used any

No. 80006-0-I/4
4
substances or feeling impaired by any substances on the day of the incident.
Cusick acknowledged that she had several urinalysis test results during
treatment that came back positive for prescription opioids but asserted that these
results were fully consistent with her properly prescribed medications.
Sergeant Samuel Copeland interacted with Cusick at the QFC where she
was arrested on July 29, 2018. He testified that, based on his training and
experience, Cusick exhibited behaviors consistent with her being under the
influence of narcotics. He said that Cusick attributed her behaviors to anxiety.
Deputy Justin Dear testified that he encountered Cusick at Swedish
Hospital in Issaquah, where she had been taken for a blood draw following her
arrest. Dear testified that Cusick spontaneously admitted using cocaine two days
prior and asked whether it would still be in her system. He further testified that,
on the previous day, he had been dispatched to a Safeway store where staff
attempted to prevent Cusick from driving away with C.R.M. because she
appeared to be “drunk or high on something.”
Iris Sepe was the recovery services supervisor at IKRON who supervised
Cusick’s chemical dependency assessment and served as her primary clinician.
She testified that Cusick “made incredible progress” in treatment and believes
Cusick “is very sincere about her recovery, and about changing her life.” Sepe
testified that Cusick was “one hundred percent” in compliance with her treatment,
despite having positive urinalysis tests for prescription medications in October
2018, November 2018, and February 2019. Sepe explained that a positive test
for a verified prescription medication is within compliance. Sepe believed these

No. 80006-0-I/5
5
results did not constitute noncompliance because Cusick had been transparent
about all of her prescriptions, did not try to hide any prescriptions, and notified
her in a timely manner when she obtains a prescription.
Although Cusick had two urinalysis test results in September 2018 that
came back “diluted,” possibly as a result of drinking large amounts of water to
affect the result, Sepe testified that such results are not considered positive at
IKRON. Sepe testified that she typically informs medical providers and
prescribers about the substance abuse history of individuals in treatment but
acknowledged that she did not speak with Cusick’s doctors about her opioid
prescriptions in November 2018 or February 2019. She also testified that opiate
abuse “really hasn’t been the focus of most of our sessions.”
Sepe acknowledged that she was not fully aware of Cusick’s substance
abuse history, as she did not conduct the initial assessment. She did not know
that Cusick had a history of amphetamine stimulant use or that she lost her
nursing license for diverting methadone. She thought Cusick had a prescription
for oxycodone at the time of her most recent DUI, but no such prescription was
listed on Cusick’s assessment. Regarding Cusick’s DUI on July 29, 2018, Sepe
stated that “it sounds like she was having a panic attack and her anxiety was
overwhelming.” She felt that Cusick had taken full responsibility for the incident.
Megan Socea, the assigned social worker for C.R.M.’s case, opined that
C.R.M. should be found dependent due to ongoing concerns about prescription
medication abuse. Socea was concerned about Cusick’s history of prior DUIs,
her claim that she was not under the influence on July 29, 2018, and her diluted

No. 80006-0-I/6
6
and positive urinalysis test results. She also expressed concern that Sepe was
not fully aware of Cusick’s substance abuse history, that treatment was not
sufficiently focused on her substance use, and that her prescription medications
had not been properly verified and excused. Socea opined that Cusick was
“maintaining [her] sobriety to complete things or check the boxes or go through
the motions” in order to get her son returned to her care.
Jacqui Hammond, the court appointed special advocate (CASA), also
opined that the court should find C.R.M. dependent. Hammond testified that
C.R.M. and his mother are highly bonded and attached, and that she had no
concerns about the interactions she observed during home visits. However,
Hammond expressed concerns about the short length of time Cusick had been
sober in relation to her long history of DUIs and substance abuse, particularly
where Cusick had several positive urinalysis test results during treatment and
failed to notify Hammond about her new prescriptions. Hammond was also
concerned about Cusick’s comment that she would not use drugs again unless
her parents have C.R.M. Hammond believed C.R.M. was at risk of serious harm
without court involvement.
The trial court entered an order of dependency supported by findings of
fact and conclusions of law. The court entered the following challenged findings
of fact:
8. Ms. Sepe testified she was aware of some of Ms. Cusick’s
background and history including her five charged prior DUIs and
treatment history but she was not aware of other information
including use of her alcohol during her pregnancy with [C.R.M.], her
prior position and discharge as a nurse for a positive UA for
methadone and Drug Diversion and she was not aware of Ms.

No. 80006-0-I/7
7
Cusick’s most recent urinalysis results being positive for opiate in
February 2019 or the positive result for opiates and hydromorphone
in October 2018.
12. Ms. Cusick’s concerning urinalysis results since being in
treatment at IKRON included a positive UA for hydromorphone
10/9/18, a positive UA for valium on 11/8/18 which was post-
surgery in November 2018, a positive UA for valium and morphine
in 11/13/18 over one week post surgery. There was no explanation
from the mother or her C.D.P. on why she had a positive for
morphine on 11/13/18 but not 11/8/18, and an additional positive
result for hydromorphone in February 2019. Ms. Cusick testified
that she also had a prescription and took codeine cough medicine
in January 2019 due to her having pneumonia.
13. Ms. Sepe testified that Ms. Cusick made great progress and
was committed to her recovery. Ms. Sepe did not have any
concerns about Ms. Cusick’s prescriptions, which indicated the
presence of opiates in four of the last five months of her substance
abuse treatment at IKRON. Ms. Sepe testified she did not inquire
with any medical professionals as to what they knew about Ms.
Cusick’s substance abuse treatment or why they were prescribing
such medication because she had no basis to question the need for
the prescriptions.
48. The Court found the State/Department has met its burden by a
preponderance establishing that [C.R.M.] has experienced
negligent treatment or maltreatment by his mother due to her failure
to act and the cumulative effects of a pattern of conduct, behavior
or an action that evidences a serious disregard and consequences
of such magnitude as to constitute a clear and present danger to
[C.R.M.]’s health, welfare or safety.
49. The State/Department has met its burden by a preponderance
of the evidence establishing that [C.R.M.] has no parent, guardian
or custody [sic] capable of adequately caring for him such that he is
in circumstances, which constitute a danger of substantial damage
to his psychological or physical development.
The court made numerous other unchallenged findings. It found that
although Cusick was “sincere,” and much of what she said was corroborated by
other witnesses, her belief that she was not impaired on July 29, 2018 or that she
does not have an issue with prescription opiate medications was contrary to the

No. 80006-0-I/8
8
evidence. It found the testimony of Socea and Hammond credible and that
Cusick’s and Sepe’s explanation of the July 29, 2018 incident was not credible.
It further found that “Ms. Cusick’s pattern of behavior establishes a very
concerning history of abuse and it puts current concerns into proper context.”
Cusick appeals.
II
Cusick argues that insufficient evidence supports the trial court’s finding of
dependency. We disagree.
A
“Dependency proceedings are designed to protect children from harm,
help parents alleviate the problems that led to intervention, and reunite families.”
In re Dependency of P.H.V.S., 186 Wn. App. 167, 181, 339 P.3d 225 (2015).
Unlike a parental termination proceeding, a dependency hearing is “‘a
preliminary, remedial, nonadversary proceeding’ that does not permanently
deprive a parent of any rights.” In re Welfare of Key, 119 Wn.2d 600, 609, 836
P.2d 200 (1992) (quoting In re Dependency of A.W., 53 Wn. App. 22, 30, 765
P.2d 307 (1988)).
A “dependent child” is a child who (a) has been abandoned, (b) is abused
or neglected, or (c) has no parent, guardian, or custodian capable of adequately
caring for the child, such that the child is in circumstances that constitute a
danger of substantial damage to the child’s psychological or physical
development. RCW 13.34.030(6). To find a child dependent, the State must
prove by a preponderance of the evidence that the child meets the statutory

No. 80006-0-I/9
9
definition of dependency under RCW 13.34.030(6). In re Dependency of E.L.F.,
117 Wn. App. 241, 245, 70 P.3d 163 (2003). Preponderance of the evidence
means “more likely than not to be true.” In re Dependency of M.S.D., 144 Wn.
App. 468, 478, 182 P.3d 978 (2008).
In evaluating a claim of insufficiency of the evidence in a dependency
proceeding, we determine whether substantial evidence supports the trial court’s
findings of fact and whether those findings of fact support the trial court’s
conclusions of law. In re Dependency of C.M., 118 Wn. App. 643, 649, 78 P.3d
191 (2003). Evidence is substantial if, viewed in the light most favorable to the
prevailing party, a rational trier of fact could find the fact proved by a
preponderance of the evidence. E.L.F., 117 Wn. App. at 245. We do not weigh
the evidence or make witness credibility determinations. In re Welfare of C.B.,
134 Wn. App. 942, 953, 143 P.3d 846 (2006). We treat unchallenged findings of
fact as verities on appeal. In re Interest of J.F., 109 Wn. App. 718, 722, 37 P.3d
1227 (2001).
B
We address, in turn, the evidence supporting each of the two statutory
bases on which the trial court found C.R.M. dependent.
RCW 13.34.030(6)(b) provides that a child may be declared dependent if
he is abused or neglected as defined in chapter 26.44 RCW. “Abuse or neglect”
is defined, in pertinent part, as “the negligent treatment or maltreatment of a child
by a person responsible for or providing care to the child.” RCW 26.44.020(1).
“Negligent treatment or maltreatment” is further defined as “an act or a failure to

No. 80006-0-I/10
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act, or the cumulative effects of a pattern of conduct, behavior, or inaction, that
evidences a serious disregard of consequences of such magnitude as to
constitute a clear and present danger to a child’s health, welfare, or safety.”
RCW 26.44.020(18).
Cusick argues that the Department failed to prove that C.R.M. is presently
neglected as required by RCW 13.34.030(6)(b) because at the time of trial she
had been sober for eight months and had demonstrated an ability to properly
care for C.R.M. while living at home with her parents. She further contends that
the evidence does not support a finding that she disregarded “consequences of
such magnitude as to constitute a clear and present danger to” C.R.M. See
RCW 26.44.020(18).
However, when a court is evaluating whether there exists a “clear and
present danger[,] . . . evidence of a parent’s substance abuse as a contributing
factor to negligent treatment or maltreatment shall be given great weight.” RCW
26.44.020(18). Cusick points to Sepe’s testimony that she was sincere in her
efforts to recover and fully compliant with treatment. But Sepe was often unable
to explain inconsistencies in Cusick’s positive test results, was not fully aware of
Cusick’s substance abuse history, and did not always follow up with Cusick’s
medical providers regarding her prescriptions. In unchallenged findings, Socea
and Hammond both expressed concern regarding Cusick’s unexplained positive
test results, Sepe’s oversight, and Cusick’s commitment to sobriety. The court
found their testimony credible. And Cusick does not challenge the court’s finding
that her explanation of the July 29, 2018 incident was not credible.

No. 80006-0-I/11
11
Moreover, a parent’s past history is a factor that may be weighed in
evaluating the current risk to a child. See In re Dependency of Brown, 149
Wn.2d 836, 841-42, 72 P.3d 757 (2003). Cusick’s past history included five DUI
charges, losing her nursing license for drug diversion, drinking during her
pregnancy with C.R.M., and multiple relapses following treatment. And the court,
in an unchallenged finding, determined that “Ms. Cusick’s pattern of behavior
establishes a very concerning history of abuse and . . . puts current concerns into
proper context.” Ample evidence supports the court’s finding of neglect.
C
RCW 13.34.030(6)(c) provides that a child may be declared dependent if
he “[h]as no parent, guardian, or custodian capable of adequately caring for the
child, such that the child is in circumstances which constitute a danger of
substantial damage to the child’s psychological or physical development.”
Dependencies based on RCW 13.34.030(6)(c) do not require a finding of
parental unfitness; the provision allows for “consideration of both a child’s special
needs and any limitations or other circumstances which affect a parent’s ability to
respond to those needs.” In re Dependency of Schermer, 161 Wn.2d 927, 944,
169 P.3d 452 (2007). There are no specific factors the court must consider when
determining whether a parent is capable of adequately parenting a child.
Schermer, 161 Wn.2d at 952. Rather, the inquiry is highly fact specific.
Schermer, 161 Wn.2d at 952. The statute “does not require proof of actual harm,
only a ‘danger’ of harm.” Schermer, 161 Wn.2d at 951.

No. 80006-0-I/12
12
In challenging this finding, Cusick notes that she and C.R.M. are deeply
bonded, that her parenting assessment recommended no services other than to
remain in treatment, and that Socea and Hammond expressed no concerns with
her parenting apart from substance use. She further asserts that this finding is
based solely on the July 29, 2018 incident, which she characterizes as one lapse
of judgment in eight years of parenting. She contends that there is no evidence
her drug use negatively affected her parenting outside of this isolated incident.
There is no question that Cusick loves her child, that they are bonded, and
that she is a capable parent when sober. But the record is replete with evidence
that ongoing court intervention is necessary to ensure that C.R.M. remains safe.
This includes Cusick’s substance abuse history, her continued insistence that her
most recent DUI resulted from a panic attack, and concerns regarding her
commitment to sobriety. If Cusick were to repeat her past behaviors, C.R.M.
could suffer severe consequences. The Department does not need to “stay its
hand until actual damage to the endangered child has resulted.” In re Welfare of
Frederiksen, 25 Wn. App. 726, 733, 610 P.2d 371 (1979). Ample evidence
supports this finding.

No. 80006-0-I/13
Affirmed.
1
WE CONCUR:
Leach J
appelwick. g.
13