Krystle M. v. Dcs

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

KRYSTLE M., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, C.M., G.M., Appellees.

No. 1 CA-JV 19-0013
FILED 11-14-2019

Appeal from the Superior Court in Mohave County
No. L8015JD201707014
The Honorable Derek C. Carlisle, Judge

AFFIRMED

COUNSEL

The Stavris Law Firm PLLC, Scottsdale
By Alison Stavris
Counsel for Appellant

Arizona Attorney General’s Office, Mesa
By Tom Jose
Counsel for Appellee Department of Child Safety
 KRYSTLE M. v. DCS, et al.
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Samuel A. Thumma delivered the decision of the Court, in
which Judge Jennifer M. Perkins and Judge Paul J. McMurdie joined.

T H U M M A, Judge:

¶1 Krystle M. (Mother) challenges the superior court’s order
terminating her parental rights to her biological children C.M. and G.M.
Because Mother has shown no error, the order is affirmed.

FACTS AND PROCEDURAL HISTORY

¶2 Mother has a history of behavioral health issues and suffers
from complex posttraumatic stress (PTSD) and attention-
deficit/hyperactivity (ADHD) disorders. Mother and the children lived in
Oregon, where Mother pursued mental-health counseling through the New
Perspectives Center. Despite her counseling, Mother refused medication for
PTSD, anxiety and depression. When triggered, Mother becomes
aggressive and hostile, vacillating between intense anger, frustration and
hopelessness. Before 2016, Mother learned C.M. was being harassed at
school, which triggered a major PTSD episode for Mother, and due to
several other stressors, Mother’s mental health declined.

¶3 In April 2016, Mother’s counselor recommended reducing her
college workload, and in June 2016, Mother was fired from her job because
she was “volatile and argumentative and used profanity . . . during the
training.” At that time, Mother was also facing charges of reckless driving
and child endangerment (stemming from a feud with her neighbors) and a
related child neglect investigation by the Oregon Department of Human
Services. 1 Around this time, Mother sent the children to live with their
grandmother in Arizona. Mother remained in Oregon. A few months later,
Mother lost her housing and had to stay with various friends or, at times,
lived in her car.

¶4 In Arizona, when Mother had not sought custody of the
children by April 2017, the Department of Child Safety (DCS) investigated.

1The charges were eventually dismissed, and the neglect allegations
determined to be unsubstantiated.

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Mother admitted prior methamphetamine use and a lack of income or
housing. Based on disclosures by C.M., DCS also expressed concerns that
Mother was not adequately treating her mental health. Consequently, DCS
took custody of the children and filed a dependency petition in April 2017.
In March 2018, after several days of evidentiary hearings, the court found
the children dependent as to Mother and adopted a family reunification
case plan.

¶5 Meanwhile, DCS provided Mother with services, including
substance-abuse testing, a psychological evaluation and visitation. DCS
also asked Mother to continue engaging in mental-health services in
Oregon. Regarding substance abuse, Mother refused to submit to a rule-out
drug test until 2018. Mother refused a hair follicle test in February and
tested positive for methamphetamine in May and June 2018. Mother then
stopped testing. Despite her positive tests, admissions to her counselor and
failing to test, Mother denied any recent use to DCS and the court.

¶6 Mother’s mental health did not improve during the
dependency. Although her mental-health providers repeatedly
recommended antidepressant medication, Mother consistently refused it.
She continued to struggle with severe anger, frustration and hopelessness
and remained combative and verbally abusive in stressful situations. She
also periodically struggled with suicidal thoughts. After getting fired in
June 2016, Mother did not obtain another job, and she did not establish
stable housing after October 2016.

¶7 In May 2018, Mother completed two psychological
evaluations, one with Dr. Martha Wang and another with Dr. Paul
Stoltzfus. Dr. Wang diagnosed Mother with PTSD and major depressive
disorder. Dr. Stoltzfus diagnosed Mother with PTSD; major depressive
disorder; persistent depressive disorder; generalized anxiety disorder;
somatization disorder; ADHD; and schizoid, masochistic, paranoid, and
schizotypal personality traits. Dr. Stolzfus concluded that Mother’s mental
disorders would “have a significant negative impact on her ability to parent
her children,” and he recommended that she take psychotropic medication.

¶8 In July 2018, the court changed the case plan to severance and
adoption, and DCS moved to terminate Mother’s parental rights based on
neglect, mental illness, substance abuse and nine- and fifteen-months time-
in-care. A contested severance adjudication followed, resulting in the court
granting the motion on all grounds alleged, except neglect. This court has
jurisdiction over Mother’s timely appeal pursuant to A.R.S. §§ 8-235(A), 12-

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Decision of the Court

120.21(A)(1), -2101(A)(1), and Arizona Rule of Procedure for the Juvenile
Court 103(A) (2019). 2

DISCUSSION

¶9 As applicable here, to terminate parental rights, a court must
find by clear and convincing evidence that at least one statutory ground
articulated in A.R.S. § 8-533(B) has been proven and must find by a
preponderance of the evidence that termination is in the best interests of the
child. See Kent K. v. Bobby M., 210 Ariz. 279, 288 ¶ 41 (2005); see also Michael
J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 249 ¶ 12 (2000). Because the
superior court “is in the best position to weigh the evidence, observe the
parties, judge the credibility of witnesses, and resolve disputed facts,” this
court will affirm an order terminating parental rights so long as it is
supported by reasonable evidence. Jordan C. v. Ariz. Dep’t of Econ. Sec., 223
Ariz. 86, 93 ¶ 18 (App. 2009) (citations omitted).

I. Reasonable Evidence Supports the Superior Court’s Finding that
Termination was Proper Based on Fifteen-Months Time-In-Care.

¶10 When seeking termination based on fifteen-months time-in-
care, DCS must prove that it “made a diligent effort to provide appropriate
reunification services” to the parent. A.R.S. § 8-533(B)(8). DCS must show
that it provided the parent with “the time and opportunity to participate in
programs designed to help her become an effective parent.” In re Maricopa
Cty. Juv. Action No. JS-501904, 180 Ariz. 348, 353 (App. 1994). DCS need not
“provide every conceivable service or . . . ensure that a parent participates
in each service it offers.” Id. DCS must also prove that (1) “the child has
been in an out-of-home placement for a cumulative total period of fifteen
months or longer,” (2) “the parent has been unable to remedy the
circumstances that cause the child to be in an out-of-home placement, and
[(3)] there is a substantial likelihood that the parent will not be capable of
exercising proper and effective parental care and control in the near future.”
A.R.S. § 8-533(B)(8)(c). The “circumstances” are those “existing at the time
of the severance that prevent a parent from being able to appropriately
provide” for her child. Jordan C., 223 Ariz. at 96 ¶ 31 n.14 (citation omitted).

¶11 Here, Mother was unable to remedy her substance-abuse,
mental-health, income and housing issues by the termination hearing.
Mother knew that these were the issues she needed to remedy before the

2Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.

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 KRYSTLE M. v. DCS, et al.
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court would reunify her and the children. Although DCS provided, and
Mother agreed to participate in, drug testing, she refused to submit to a
drug test until 2018—almost a year into the dependency. When she finally
tested, she tested positive for methamphetamine. Mother then refused to
submit to further testing, and she did not pursue substance-abuse
treatment, despite encouragement by DCS. Instead, Mother consistently
denied to DCS that she had any substance-abuse issues.

¶12 Mother admitted methamphetamine use during one of her
psychological evaluations and to her counselor in Oregon. In February
2018, Mother told her counselor that “she sometimes has to use meth to be
able to focus and get anything done,” but denied being addicted, stating
instead that methamphetamine was “just a stronger version of my ADHD
medicine.” At trial, however, Mother testified that she had not used
methamphetamine since 2008 and that her positive tests resulted from
allergy or ADHD medication.

¶13 Mother failed to adequately address her mental-health issues.
As early as June 2016, Mother’s therapist “expressed genuine concern that
[Mother’s] mood and mental equilibrium [was] spiraling out of control,”
and Mother agreed but “place[d] the blame outside of herself.” Her
therapist emphasized the need for antidepressant medication, but Mother
told her “she will never yield on th[at] issue.” A few weeks later, Mother’s
therapist noted “how close to truly losing-it [Mother] seems to be.” Over
the next twenty months, Mother’s therapists repeatedly urged her to
consider antidepressant medication as part of her ongoing treatment, but
she refused; consequently, her mental-health and behavioral issues did not
improve.

¶14 The record shows Mother had significant conflict with many
in her life after 2015, including her neighbors, children’s school district,
employers, mother, boyfriends, DCS, the court and her attorneys. In times
of hopelessness, Mother often had suicidal thoughts and periodically
threatened to kill herself. She was still expressing suicidal intent at the time
of the termination trial.

¶15 Finally, Mother was unable to maintain stable housing or
income. She remained unemployed after June 2016. Mother’s only income
at the time of the termination hearing came from selling items online.
Mother’s counselor described her condition as of May 2018 as “too
distraught and overwhelmed to work” and “homeless,” emphasizing
Mother “has gotten involved in a couple of unhealthy and [] unsafe
relationships, to keep from being a homeless woman.” Mother lost her

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housing around August 2016, and by November, she was sleeping in her
car. Between November 2016 and August 2018, Mother lived out of her car
and with friends or boyfriends, many of whom had mental-health or
substance-abuse issues and criminal records. By the time of trial, Mother
was living in a basement in exchange for performing maintenance on the
home.

¶16 Reasonable evidence also supports the court’s finding that a
substantial likelihood exists that Mother will not be capable of exercising
proper and effective parental care and control in the near future. At the time
of trial, Mother’s substance-abuse, mental health, and instability were
ongoing issues, each of which placed the children at risk of physical,
emotional, or mental harm if returned to her care. Citing these reasons, the
DCS case manager concluded that Mother would be unable to safely parent
the children in the foreseeable future. The case manager’s opinion coincides
with that of Dr. Stolzfus, who concluded that

[Mother] is far from minimally capable of
parenting her children at this time. Her own
personal life is in chaos. She is able to talk
rationally for a period of time, but quickly slips
into a completely paranoid and irrational
mindset, along with significant emotional
decompensation. Without adequate treatment,
to which she is adamantly opposed, it is
doubtful she is able to parent her children at this
time, or in the foreseeable future.

He further explained that the children would be at risk of harm in her care,
especially because she “is often irrational and agitated” and although she
“can have times of normal and logical thinking, she triggers easily and
immediately trips into a mental state characterized by paranoia, distortion,
and fear.”

¶17 Mother next argues the court erred in finding DCS made a
diligent effort to provide her with appropriate reunification services, citing
DCS’s failure to refer her for substance-abuse treatment in Oregon or a
psychiatric evaluation, the short-lived Skype visits between her and the
children, and DCS’ failure to timely obtain her counseling records.

¶18 The record does not support Mother’s contentions. Based on
her refusal to acknowledge her methamphetamine use, the court found that
offering Mother substance-abuse treatment would have been futile.

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 KRYSTLE M. v. DCS, et al.
Decision of the Court

Throughout the dependency, Mother refused to participate in almost all
drug testing, and she adamantly denied any substance abuse (other than
marijuana), even after multiple, positive methamphetamine test results.
Additionally, after admitting her methamphetamine use to her counselor
in Oregon, Mother minimized her substance abuse, denying that she was
addicted or that it caused any issues in her life.

¶19 Mother waived any objection to DCS’ failure to provide her
with a psychiatric evaluation because she failed to raise this issue in
superior court. See Shawanee S. v. Ariz. Dep’t of Econ. Sec., 234 Ariz. 174, 178
¶ 13 (App. 2014). Even if she had not waived this argument, Mother
suggests only that the psychiatric evaluation may have suggested helpful
medication for her conditions. While true, Mother received medical
management services for most of the dependency through New
Perspectives in Oregon, and consistently refused to take any medication
other than Adderall for her ADHD. Mother also expressly rejected Dr.
Stoltzfus’ assessment and voiced to her counselor her “refus[al] to jump
through any more of [DCS’] ‘ridiculous hoops’ including random
[urinalysis tests] and psychiatric treatment in AZ.” Thus, reasonable
evidence supports the finding that additional mental-health services would
have been futile based on Mother’s “refusal to remedy her mental illness
with medication.”

¶20 Finally, Mother argues that technical difficulties with Skype
prevented her from having visits with her children and that DCS was “less
than diligent” in obtaining her counseling records from New Perspectives.
However, the case manager testified that DCS offered Mother options other
than Skype, such as phone visits and in-person visits in Arizona. Moreover,
Mother fails to show how technical difficulties with her Skype visits
contributed to the court’s termination order, which was based on Mother’s
substance abuse, mental illness and instability, not on her lack of a bond
with the children. Regarding her counseling records, Mother refused to sign
a release allowing DCS access to most of her New Perspectives records until
very late in the proceedings. At the termination hearing, the court received
all of Mother’s counseling records, and therefore had the full benefit of that
information in making its determination. Mother has thus shown no error
in the finding that DCS proved the fifteen-month time-in-care statutory
ground. 3

3Mother also challenges the termination order under the remaining
grounds. However, this Court need only find that reasonable evidence

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 KRYSTLE M. v. DCS, et al.
Decision of the Court

II. Mother Has Shown No Error in the Court Finding Severance Was
in the Best Interests of the Children.

¶21 Mother argues the court erred in finding that severance was
in the children’s best interests. Mother asserts she properly cared for her
children through the inception of this case and has been ready to parent
them since that time. Mother’s arguments essentially ask this Court to
reweigh the evidence, which it will not do. See Castro v. Ballesteros-Suarez,
222 Ariz. 48, 52 ¶ 11 (App. 2009). Moreover, reasonable evidence supports
the court’s finding.

¶22 “[T]ermination is in the child’s best interests if either: (1) the
child will benefit from severance; or (2) the child will be harmed if
severance is denied.” Alma S. v. Dep’t of Child Safety, 245 Ariz. 146, 150 ¶ 13
(2018) (citation omitted). Although “the child’s prospective adoption is a
benefit that can support a best-interests finding,” Demetrius L. v. Joshlynn F., 239 Ariz. 1, 4 ¶ 16 (2016), the court “must consider the totality of the
circumstances existing at the time of the severance determination,” Alma S.,
245 Ariz. at 150-51 ¶ 13 (citation omitted).

¶23 The DCS case manager testified that severance would provide
the children with stability and permanency. The children were in a safe and
stable home with their grandmother, who was meeting their needs and
wished to adopt them. There is no question that Mother loves her children,
but as the case manager testified, grandmother is able and willing to
provide the children with the stability that Mother could not.

CONCLUSION

¶24 The order terminating Mother’s parental rights to C.M. and
G.M. is affirmed.

AMY M. WOOD • Clerk of the Court
FILED: AA

supports one termination ground to affirm the order. Mary Lou C. v. Ariz.
Dep’t of Econ. Sec., 207 Ariz. 43, 49 ¶ 14 (App. 2004).

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