in Re J R Stewart Minor ( 2015 )

STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
In re J. R. STEWART, Minor. December 1, 2015
No. 326792
Macomb Circuit Court
Family Division
LC No. 2012-000420-NA
Before: SERVITTO, P.J., and WILDER and BOONSTRA, JJ.
PER CURIAM.
Respondent G. Stewart appeals as of right the trial court’s order terminating his parental
rights to the minor child pursuant to MCL 712A.19b(3)(c)(i), (g), and (j). We affirm.
The minor child was removed from the custody of her mother, A. Greene,1 two days after
the child’s birth. Greene’s parental rights to seven other children were previously terminated.
Respondent was homeless, and his only income came from collecting and selling scrap metal.
He owed several thousand dollars in child support for other children.
The child was placed with respondent’s sister. Respondent consistently attended
visitation, and behaved appropriately with the child. Respondent’s homelessness and lack of a
secure income were the principal barriers to reunification. Petitioner provided respondent with a
list of low-income housing providers, but he did not contact any of them until nearly a year after
the case began, and then contacted only two. Respondent maintained that he received sufficient
income from his scrap metal sales and lawn care services, but he seldom provided documentation
of the scrap metal payments, and he never provided documentation of his income from lawn
services.
Respondent argues that the trial court erred in finding that statutory grounds for
termination were established by clear and convincing evidence. We disagree.
In an action to terminate parental rights, the petitioner must prove by clear and
convincing evidence that at least one statutory ground for termination in MCL 712A.19b(3)
1
The trial court also terminated Greene’s parental rights to the minor child, but she has not
appealed that decision.
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exists. MCR 3.977(A)(3) and (H)(3); In re Trejo, 462 Mich. 341, 356; 612 NW2d 407 (2000).
The trial court’s decision is reviewed for clear error. MCR 3.977(K); In re Trejo, 462 Mich. at
356. A finding is clearly erroneous when the reviewing court is left with the firm and definite
conviction that a mistake was made. In re JK, 468 Mich. 202, 209-210; 661 NW2d 216 (2003).
“[T]his Court accords deference to the special opportunity of the trial court to judge the
credibility of the witnesses.” In re Fried, 266 Mich. App. 535, 541; 702 NW2d 192 (2005); MCR
2.613(C).
The trial court found that statutory grounds for termination were established pursuant to
MCL 712A.19b(3)(c)(i), (g), and (j), which provide that termination is warranted under the
following circumstances:
(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.
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(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.
When this case was adjudicated, respondent was homeless and dependent on friends and
family members who allowed him to stay in their homes on a temporary basis. He did not have a
regular source of income. Throughout the proceedings, the caseworker discussed with him the
importance of establishing suitable housing and a legal income. Early in the case, respondent’s
caseworker provided respondent with a list of low-income housing resources. Respondent did
not avail himself of this information until November 2013, almost one year after the child was
born and had been placed into care. More than a year later, respondent was on a waiting list for
housing, but he had contacted only two providers and claimed that he did not contact others
because they required employment. Although respondent continuously maintained that he had a
reliable income through scrap metal sales and a lawn and snow removal business, he never
inquired whether these income sources made him eligible for housing from the providers who
required employment. Because of respondent’s lack of diligence in searching for housing, he
had not resolved the condition of homelessness despite having two years to do so.
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Respondent also failed to establish a consistent and legal source of income. He only
occasionally provided documentation of the cash proceeds he received in his scrap metal
dealings, and never offered documentation of his earnings in his lawn service and snow removal
business. At the time of the hearing, he was still “working” on obtaining a tax ID number for
this business. Respondent had also accrued child support arrearages approaching $80,000. His
delinquency in support payments dated back to the 1990s. Respondent’s application for Social
Security disability benefits was denied, although he hoped to prevail on appeal or on
reapplication. He never submitted a budget reflecting the expenses he would incur for housing
and other necessities if he were reunited with the child. In view of this evidence, the trial court
did not clearly err in finding that respondent’s financial plan was unrealistic. Respondent had a
long history of financial insecurity, with no realistic or objective basis for believing that he could
reverse this pattern within a reasonable time.
Because respondent’s homelessness and income insecurity problems remained
unresolved, and respondent had failed to make any substantial progress in addressing those
matters after two years, the trial court did not clearly err in finding that the evidence supported
termination under § 19b(3)(c)(i).
The substantial evidence of respondent’s homelessness and marginal finances also
supported termination under § 19b(3)(g). Respondent was in no position to provide a stable and
suitable home for the child, and his longstanding child support delinquency forecast his future
inability to financially support the child. Although respondent hoped to resolve these issues at
some uncertain future time, there was no reasonable expectation that he would be able to do so
within a reasonable period of time.
Petitioner also presented evidence that respondent did not understand children’s
developmental milestones, and that he did not actively engage with the child during visitation.
Respondent argues that the caseworker testified favorably regarding his visitation with the child
throughout these proceedings, but then gave adverse testimony only after the trial court approved
the supplemental petition to terminate parental rights. Respondent’s reliance on In re B & J, 279
Mich. App. 12; 756 NW2d 234 (2008), to argue that the latter testimony was improper is
misplaced. In In re B & J, the trial court terminated the respondents’ parental rights under
§ 19b(3)(g) because the respondents had been deported, which precluded them from providing
proper care and custody for their children. This Court noted that petitioner had reported the
respondents’ illegal immigrant status, which led to their deportation, and held that termination
under § 19b(3)(g) was improper because petitioner “intentionally set out to create that very
ground for termination.” Id. at 19. In this case, respondent does not identify any barrier to
reunification that petitioner created. Respondent principally complains that the caseworker’s
adverse testimony at the termination hearing regarding his parenting skills should not have been
accepted because the caseworker’s prior reports were largely favorable. But that is an argument
that is more properly directed at credibility.
Although the caseworker testified at dispositional review hearings that respondent
generally behaved appropriately with the child, she did not provide any detailed testimony about
how respondent used his visitation time at these review hearings. At the termination hearing, she
testified that respondent usually held the child on his lap for a few minutes, but then sat her on
the floor to play alone. He sometimes went to sleep when the child was sleeping. Respondent
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admitted sleeping during visits, but qualified this by stating that he might have only appeared to
be sleeping, and that he was a light sleeper. The trial court did not clearly err in giving greater
weight to the caseworker’s more detailed testimony at the termination hearing, than it gave to her
summary statements at earlier review hearings. In re Miller, 433 Mich. 331, 337; 445 NW2d 161
(1989). Further, the primary barriers to reunification were respondent’s homelessness and lack
of a suitable income, and petitioner did not create or cause either of those conditions. Rather, it
made efforts to alleviate them, but respondent failed to take advantage of those efforts.
Respondent’s failure to make and pursue realistic plans to rehabilitate himself also
demonstrated that he lacked the capacity to provide safe and proper care for his child. After
more than two years, respondent was still “working on” basic plans such as obtaining a tax ID
for his business and getting on waiting lists for low-income housing. He failed to comply with
his treatment plan requirements to provide documentation of his efforts to find employment and
housing. He admitted that he had not read the plan since it was issued. He made only minimal
efforts to apply for low-income housing. The plans he asserted were unrealistic, and he could
not articulate how he would fulfill them. Accordingly, the evidence also supports termination of
respondent’s parental rights under § 19b(3)(j).
We reject respondent’s argument that the trial court clearly erred in stating that
respondent wanted the child to remain with his sister. Although respondent testified that he
wanted to take care of his daughter and was not “pondering [sic] my child off on nobody,” he
also stated that “I would love for [the child] to stay with my sister” and “I don’t mind my sister
having my daughter.” Accordingly, the trial court did not misstate respondent’s testimony.
There is no merit to respondent’s argument that termination was improper because
petitioner failed to provide adequate services to help him achieve reunification. To preserve a
challenge to the adequacy of reunification efforts, a respondent must object or indicate that the
services provided were inadequate. In re Frey, 297 Mich. App. 242, 247; 824 NW2d 569 (2012).
Respondent did not challenge the adequacy of petitioner’s reunification services in the trial court.
Accordingly, this issue is unpreserved and review is limited to plain error affecting respondent’s
substantial rights. In re Utrera, 281 Mich. App. 1, 8-9; 761 NW2d 253 (2008).
“When a child is removed from a parent's custody, the agency charged with the care of
the child is required to report to the trial court the efforts made to rectify the conditions that led
to the removal of the child.” In re Plump, 294 Mich. App. 270, 272; 817 NW2d 119 (2011).
Thereafter, “[a trial] court is not required to terminate parental rights if the State has not provided
to the family of the child . . . such services as the State deems necessary for the safe return of the
child to the child's home.” In re Rood, 483 Mich. 73, 104; 763 NW2d 587 (2009) (citations and
quotation marks omitted). “The adequacy of the petitioner’s efforts to provide services may bear
on whether there is sufficient evidence to terminate a parent's rights.” Id. at 89.
Respondent argues that petitioner failed to actively help him find housing and
employment. He argues that providing him with a list of housing resources was not enough, and
that petitioner’s workers should have helped him contact housing providers, and should have
referred him for employment assistance. The record discloses that petitioner provided services to
address these matters, but respondent failed to avail himself of those services. While petitioner
must “expend reasonable efforts to provide services to secure reunification, there exists a
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commensurate responsibility on the part of [the parent] to participate in the services that are
offered.” In re Frey, 297 Mich. App. at 248. Respondent could have, but did not, call more than
two housing providers, or regularly call providers to inquire about availability. He could have,
but did not, inquire whether the payments he received for scrap metal and whether income from
his lawn service business could qualify as income to make him eligible for other housing
opportunities. Respondent also could have, but did not, diligently obtain a tax ID number for his
business, provide monthly documentation of his income, and prepare a budget. There is no
indication that respondent ever requested additional assistance with employment. On the
contrary, he told the caseworker that he was not looking for employment because of his child
support arrearages. Respondent has not established a plain error related to the adequacy of
services provided by petitioner.
Respondent lastly argues that termination of his parental rights was not in the child’s best
interests. Once a statutory ground for termination has been established, the court shall order
termination of parental rights if it finds by a preponderance of the evidence “that termination of
parental rights is in the child’s best interests[.]” MCL 712A.19b(5); In re Moss, 301 Mich. App.
76, 90; 836 NW2d 182 (2013). The trial court’s best interest decision is also reviewed for clear
error. MCR 3.977(K); In re Trejo, 462 Mich. at 356-357.
The child was placed in a relative’s care shortly after her birth. Two years later,
respondent was no closer to resolving his homelessness and lack of income than he was when the
case began. Respondent’s belief that he would be able to resolve the barriers to reunification
was based mostly on hope, not on any realistic plan or measurable efforts. Although respondent
argues that the child could have been placed in a guardianship while he prepared himself to
assume care, he was not making reasonable efforts to prepare himself and the child’s aunt was
willing to adopt the child to achieve permanency, but she was not willing to be appointed the
child’s guardian because of the uncertainty and potential for disruption it could cause in the
future. No other relatives were willing to accept a guardianship. Considering the circumstances,
the trial court did not clearly err in finding that termination of respondent’s parental rights was in
the child’s best interests.
Affirmed.
/s/ Deborah A. Servitto
/s/ Kurtis T. Wilder
/s/ Mark T. Boonstra
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