in Re S E Nash Minor ( 2015 )

STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
In re S. E. Nash, Minor. February 12, 2015
No. 322398
Wayne Circuit Court
Family Division
LC No. 12-510224-NA
Before: CAVANAGH, P.J., and METER and SHAPIRO, JJ.
PER CURIAM.
Respondent appeals as of right the trial court’s order terminating her parental rights to a
minor child pursuant to MCL 712A.19b(3)(c)(i) (conditions that led to adjudication continue to
exist and no reasonable likelihood conditions will be rectified within a reasonable time), (g)
(failure to provide proper care or custody and no reasonable expectation parent will provide
proper care and custody within a reasonable time), and (j) (reasonable likelihood that children
will be harmed if returned to parent).1 We affirm.
Respondent first argues on appeal the absence of clear and convincing evidence
supporting termination of her parental rights. A trial court’s findings that a ground for
termination has been established and its findings regarding the child’s best interests are reviewed
under the clearly erroneous standard. MCR 3.977(K); In re Trejo, 462 Mich 341, 356-357; 612
NW2d 407 (2000). A finding is clearly erroneous if, although there may be evidence to support
it, this Court is left with a definite and firm conviction that a mistake was made. In re Mason,
486 Mich 142, 152; 782 NW2d 747 (2010). To be clearly erroneous, a decision must be more
1
Petitioner Department of Human Services concedes on appeal that there were not grounds for
termination of respondent’s parental rights under MCL 712A.19b(3)(c)(ii) (other conditions exist
that cause child to come within court’s jurisdiction and no reasonable likelihood conditions will
be rectified within a reasonable time). Insofar as the trial court included MCL
712A.19b(3)(c)(ii) as a basis for termination, it was harmless error; indeed, erroneous
termination of parental rights under one statutory ground for termination is harmless error if the
court properly found another ground for termination. In re Powers, 244 Mich App 111, 118; 624
NW2d 472 (2000). As discussed infra, the trial court properly found other grounds for
termination of respondent’s parental rights.
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than maybe or probably wrong. In re Sours, 459 Mich 624, 633; 593 NW2d 520 (1999); In re
Williams, 286 Mich App 253, 271; 779 NW2d 286 (2009). Further, regard is to be given to the
special opportunity of the trial court to judge the credibility of the witnesses who appeared
before it. MCR 2.613(C); In re Ellis, 294 Mich App 30, 33; 817 NW2d 111 (2011).
A court may terminate an individual’s parental rights to a child if a statutory ground for
termination listed in MCL 712A.19b(3) has been proven by clear and convincing evidence. In re
Olive/Metts, 297 Mich App 35, 40; 823 NW2d 144 (2012).
In the present case, the trial court did not clearly err in terminating respondent’s parental
rights under MCL 712A.19b(3)(c)(i), (g), and (j). Those subsections provide that termination is
warranted if:
(c) The parent was a respondent in a proceeding brought under this
chapter, 182 or more days have elapsed since the issuance of an initial
dispositional order, and the court, by clear and convincing evidence, finds either
of the following:
(i) The conditions that led to the adjudication continue to exist and there
is no reasonable likelihood that the conditions will be rectified within a
reasonable time considering the child’s age.
* * *
(g) The parent, without regard to intent, fails to provide proper care or
custody for the child and there is no reasonable expectation that the parent will be
able to provide proper care and custody within a reasonable time considering the
child’s age.
* * *
(j) There is a reasonable likelihood, based on the conduct or capacity of
the child’s parent, that the child will be harmed if he or she is returned to the
home of the parent.
Clear and convincing evidence supported termination of respondent’s parental rights
under MCL 712A.19b(3)(c)(i). The determination of what constitutes a “reasonable time”
properly includes both how long it will take for the parent to improve conditions and how long
the child can wait for the improvement. In re Dahms, 187 Mich App 644, 647-648; 468 NW2d
315 (1991).
DHS filed the petition in November 2012. The petition and adjudication were based on
respondent’s substance abuse and diagnosed mental health issues. Respondent had over a year to
demonstrate that she benefitted from services aimed at eliminating the conditions that led to the
adjudication. While respondent completed parenting classes, had minimally appropriate
housing, and received legal income through social security benefits, she failed to pass two-thirds
of her drug screens. Respondent claimed to have quit using illegal drugs, but she admitted that
she did not show up for numerous drug tests after the time that she claimed she quit, explaining
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that she knew she would test positive. Respondent also testified about her belief that she needed
medication to treat her mental health issues, but she had refused to take prescribed medication at
times during the case. A mental health care provider had indicated to the foster care worker that
respondent was not truly committed to becoming mentally stable. There was also evidence that
respondent was involved in physical altercations, despite anger management and other therapy.
Respondent never demonstrated enough improvement such that she would be allowed
unsupervised visits with the child.
Overall, the evidence showed that, despite the passage of 15 months between the filing of
the petition and the start of the termination hearing, respondent did not sufficiently comply with
and benefit from court-ordered requirements concerning substance abuse and her mental health.
The same concerns that led to the original petition were still present. Respondent admitted that
she needed more time to demonstrate compliance with services. The trial court did not err in
finding clear and convincing evidence that respondent would not cure the conditions that led to
the adjudication within a reasonable time considering the child’s young age.
The trial court also did not err in finding clear and convincing evidence supporting
termination of parental rights under MCL 712A.19b(3)(g) and (j). The same evidence discussed
above, which suggested that respondent could not provide proper care and custody for the child
within a reasonable time, supports such a finding. Respondent had a lengthy period of time but
failed to demonstrate that she could provide a safe custodial environment. The child was in need
of permanency. Evidence that respondent did not benefit from services concerning her substance
abuse and mental health issues suggested a real risk that the child would be harmed if returned to
respondent’s care.
Respondent also argues that the trial court committed clear error in finding that
termination of her parental rights was in the child’s best interests. In the event that a trial court
finds one or more grounds for termination under MCL 712A.19b(3), the court shall order
termination of an individual’s parental rights if such termination is in the child’s best interests.
MCL 712A.19b(5). Whether termination of parental rights is in the best interests of a child must
be proved by a preponderance of the evidence. In re Moss, 301 Mich App 76, 90; 836 NW2d
182 (2013). In determining whether termination is in the child’s best interests, the court may
consider the parent’s history, psychological evaluation, and parenting techniques during
parenting time; family bonding; the parent’s participation in the treatment program; the foster
care environment; the potential for adoption; and the parent’s continued involvement in
situations involving domestic violence. In re Jones, 286 Mich App 126, 131; 777 NW2d 728
(2009); In re BZ, 264 Mich App 286, 301; 690 NW2d 505 (2004); In re AH, 245 Mich App 77,
89; 627 NW2d 33 (2001). A court may also consider the child’s need for permanency, stability,
and finality. In re Olive/Metts, 297 Mich App at 42.
The trial court did not clearly err in finding that termination of respondent’s parental
rights was in the child’s best interests. The evidence demonstrated that respondent did not
sufficiently benefit from required services. She had numerous positive drug tests and refused to
take necessary medication during the case. She was involved in physical altercations.
Respondent attended most visitations with the child, but never showed sufficient improvement to
graduate to unsupervised visits. Evidence suggested that there was little bond between
respondent and the child. At the same time, the family members with whom the child was
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placed indicated interest in providing long-term care for the child, including an interest in
providing her with stability and permanency through adoption.
Insofar as respondent argues that the trial court failed to consider the child’s placement
with relatives and whether guardianship was a viable option, the trial court stated on the record
and in its termination order that it considered these issues. The fact that a child is being cared for
by a relative at the time of termination proceedings does not bar termination of parental rights.
See, e.g., MCL 712A.19a(6)(a) (a trial court is not required to, but by inference it may, order the
initiation of termination proceedings in certain circumstances when a child is being cared for by
relatives). The trial court did not err in considering guardianship versus adoption for this very
young child and ultimately favoring the permanency that adoption establishes.
Affirmed.
/s/ Mark J. Cavanagh
/s/ Patrick M. Meter
/s/ Douglas B. Shapiro
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