in Re McKinven Minors ( 2015 )

STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
In re McKINVEN, Minors. December 3, 2015
Nos. 327043; 327044
Van Buren Circuit Court
Family Division
LC No. 13-017808-NA
Before: MARKEY, P.J., and OWENS and RONAYNE KRAUSE, JJ.
PER CURIAM.
Respondent father and respondent mother appeal as of right the March 10, 2015 order
terminating their parental rights to the minor children, TM and EM. The trial court terminated
respondents’ parental rights pursuant to MCL 712A.19b (3)(g), “[t]he 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,” and (j), “[t]here 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.” We affirm.
I. FACTUAL BACKGROUND
The Department of Human Services filed a petition alleging abuse and neglect of the
minor children, TM and EM. A preliminary order was entered putting the minor children in the
temporary custody of the court. The minor children were placed into foster care with their
paternal grandmother and remained in that placement throughout the duration of this case. A
second petition was subsequently filed to terminate the parental rights of the respondents. At the
conclusion of the termination hearing, the court delivered its opinion from the bench terminating
respondents’ parental rights.
The first petition alleged that the children had been left with their grandmother on several
occasions and at least once with bed bugs and strep throat. At the termination hearing, it was
stated that the bed bugs came from the Kalamazoo Gospel Mission, where the children and
respondent mother were staying because respondent mother was homeless. During this time,
-1-
respondent father was serving eighteen months’ to fifteen years’ imprisonment for second-degree
home invasion.1
Throughout the duration of this case, respondent mother had unstable housing, sporadic
attendance at supervised visits, and multiple positive drug tests. It was also stated at the
termination hearing that respondent mother tested positive for cocaine after the birth of both
minor children. It is unclear whether the children had cocaine in their system when they were
born, but the trial court indicated that it was likely. On the date the termination hearing began,
respondent mother had not completed a parenting class but did have a job.
Respondent father was incarcerated during the majority of this case. Upon release from
prison, respondent father lived at a motel. At the time of the termination hearing, respondent
father did not have a job or any prospective long-term housing.
Respondent father did meet with the minor children on multiple occasions, one of which
was observed by the minor children’s counselor. The counselor testified that respondent father
lacked discipline throughout the entire meeting. She testified that respondent father threatened
the children with “time-out” on multiple occasions, however did not follow through. There was
also an incident in which TM threw a matchbox car at respondent father, which prompted the
counselor to intervene and take control of the situation.
The counselor also testified that she observed overt displays of anxiety and behavioral
problems by the minor children following visits with the respondents. In particular, TM was
terrified that respondent mother was going to steal him and had nightmares involving both
respondents. Further, EM displayed “bratty” behavior following visits with respondents.
The counselor further testified that TM reported incidents of sexual abuse. TM
underwent a sexual abuse assessment. The report following the assessment discussed incidents
of sexual assault from an unidentified third party. It further discussed an incident in which TM,
and possibly EM, were placed into a trash bag and then into a dumpster. The trial court
concluded that they thought some sort of sexual abuse had occurred and that some version of the
trash bag incident also occurred. However, the trial court did not attribute sexual abuse to
respondent father or respondent mother. The counselor concluded that the minor children were
suffering from post-traumatic stress disorder.
The trial court concluded that both respondents were unfit to provide the minor children
with the needed stability and care. The court explained that respondent mother did not have an
adequate place to live, did not complete a drug treatment program, and did not complete
parenting classes. Respondent father had been unable to find a job, had an extensive criminal
1
Respondent father has a lengthy criminal record. Of note are his convictions for domestic
violence; disturbing the peace, which was a result of a domestic violence incident; retail fraud;
malicious destruction of property; and aggravated assault, which was reduced from the original
charge of assault with a dangerous weapon. Father also has two personal protection orders
against him.
-2-
history, and was living at a motel. The court also explained that respondent father had not
benefitted from the parenting classes offered to him, as shown by the difficulties in the observed
visitation with the minor children. The court found that respondents’ situation would not change
in the next twelve months, and that the prosecutor and DHS had met their burden of proof.
II. TERMINATION OF RESPONDENT MOTHER’S PARENTAL RIGHTS
Respondent mother first argues that the trial court clearly erred in finding that the
statutory grounds for termination were established by clear and convincing evidence. We
disagree. This court reviews for clear error a trial court’s decision that a ground for termination
was proven by clear and convincing evidence. MCR 3.977(K). “A finding is clearly erroneous
if the reviewing court is left with a definite and firm conviction that a mistake has been made. A
reviewing court must defer to the special ability of the trial court to judge the credibility of
witnesses.” In re LaFrance Minors, 306 Mich. App. 713, 723; 858 NW2d 143 (2014) [internal
citations omitted]. “Clear error signifies a decision that strikes [this Court] as more than just
maybe or probably wrong.” In re Williams, 286 Mich. App. 253, 271; 779 NW2d 286 (2009).
“Termination of parental rights is appropriate when the DHS proves one or more grounds for
termination by clear and convincing evidence. It is only necessary for the DHS to establish by
clear and convincing evidence the existence of one statutory ground to support the order for
termination of parental rights.” In re Frey, 297 Mich. App. 242, 244; 824 NW2d 569 (2012)
(citations omitted).
The first ground for the termination at issue was MCL 712A.19b(3)(g), which provides
for termination when “[t]he 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.” In In re White,
303 Mich. App. 701; 846 NW2d 61 (2014), this court upheld a termination of the parental rights
of the respondent under this provision when the evidence showed that the parent failed to
participate in and benefit from a service plan. The court reasoned that “[a] parent’s failure to
participate in and benefit from a service plan is evidence that the parent will not be able to
provide a child proper care and custody.” Id. at 710.
In this case, respondent mother substantially failed to comply with the stipulations in the
service plan following the original disposition hearing. Respondent mother did eventually
abstain from using drugs, starting in October of 2014, and she made some of the scheduled
visitations with the children; however, she missed approximately half of them. Furthermore, as
of the hearing, respondent mother had yet to complete a parenting class, find stable housing, and
participate in her own counseling. These failures indicated that respondent mother will be
unable to provide the proper care and custody for the minor children within a reasonable time.
Respondent mother cites the case Matter of Hulbert, 186 Mich. App. 600; 465 NW2d 36,
(1990), and indicates that it holds that speculative opinions do not meet the required clear and
convincing evidence standard. However, this reliance is misplaced. Hulbert has very different
facts from this case. In Hulbert, the only evidence of neglect was a failure to observe a child’s
apnea monitor and administer a proper dosage of medicine. Id. at 601. The trial court took this
evidence and combined it with the potential harm that the respondents might inflict on the
children because of the respondent’s alleged mental disorders. Id. at 602. The court then stated,
-3-
“[t]his record contains merely the speculative opinions of the psychologists regarding what might
happen in the future. In short, given the minimal evidence of past neglect, we do not feel that the
fact that respondents’ mental conditions ‘might,’ ‘could,’ or are ‘likely to’ result in neglect or
abuse is clear and convincing evidence sufficient to warrant termination.” Id. at 605 [emphasis
added].
This case, in contrast, has clear instances of neglect. Respondent mother was homeless
and shifting between temporary residences. The minor children were likely born with cocaine in
their system. There were reports of the minor children being stuffed into a trash bag. There
were allegations of sexual abuse with at least some evidentiary support. There were allegations
that the children were not fed properly and suffered from bed bugs and strep throat, and then left
with their grandmother. In totality, there is clear evidence of potential neglect. To the extent the
trial court’s conclusion was based on its evaluation of the credibility of the witnesses before it,
we must defer to the trial court. LaFrance Minors, 306 Mich. App. at 723.
Respondent mother further argues that the trial court’s emphasis on events that occurred
as far back as 2013 is misplaced and did not establish clear and convincing evidence.
Specifically, respondent mother states that she cured her housing instability. However, at the
time of the hearing, respondent mother still had not secured stable housing.2 Incongruously,
respondent mother contends that she cured her housing instability, but then contends, in the same
paragraph of her appellant brief, that she should be afforded more time to establish suitable
housing. One cannot both have a problem cured and need more time to cure that same problem.
Furthermore, the use of past events to predict future events is normal. MCL
712A.19b(3)(g) requires proof that a parent has not provided proper care and custody and that
they will not be able to do so within a reasonable time. Implicit in this statute is the idea that
past events may show that the parents will be unable to provide the proper care in the future. In
In re White, our Court held that failure to participate in a service plan showed that the parent will
be unable to provide proper care and custody. In re White, 303 Mich App at710. In In re Trejo,
462 Mich. 341, 362; 612 NW2d 407 (2000), the Supreme Court held that “the evidence of
respondent’s inability to obtain and maintain suitable housing supports the court’s conclusion
that respondent, without regard to her intent, had failed to provide proper care or custody of her
children.” In In re BZ, 264 Mich. App. 286, 300; 690 NW2d 505 (2004), this Court upheld
termination of the respondent’s parental rights even though “respondent maintained employment
and ultimately separated from her abusive boyfriend.” Id. at 300. Our Court stated that “she
only minimally complied with the more important aspects of the family plan, including visitation
with the children.” Id. Therefore, it is clear that trial courts can, and must, rely upon past events
to predict the future. The precedent upon which appellant relies is not proper in this case and is
more suited for a case in which little evidence of past neglect can be offered, or possibly where a
past event is extremely remote.
2
At the hearing, respondent mother stated that she was very close to obtaining an apartment.
However, the minor children’s case worker stated that respondent mother had stated this before
and not obtained it.
-4-
Respondent mother also contends that she has partially complied with the plan and
should be afforded more time to fully comply. Respondent mother cites In Re Newman, 189
Mich. App. 61; 472 NW2d 33 (1991), in support of this idea. In Newman, the parents’ rights were
terminated by the trial court because of their failure to maintain an adequate home and to comply
with conditions set forth in the prior parental termination hearing. Id. at 63-64. This Court
reversed the decision because the parents had not been given the opportunity to rectify the
problem. Id. at 67-68. This Court discussed the parents’ lack of education, hampered
intellectual capacity, and inability to maintain hygiene in the home. Id. at 70. This Court
concluded that proper education of how to maintain the home would allow the parents to correct
their deficiency as parents. Id. at 70.
Again, this case is much different. Here, respondent mother had since September of 2013
to correct her deficiencies as a parent. However, until October of 2014, respondent mother
remained unchanged. She routinely skipped drug tests, missed visits with the minor children,
and lived from place to place. It is true that respondent mother has improved her actions
recently, but the deficiency the court relied upon to terminate her rights was much different than
those in Newman. Respondent mother chose to not show up for visits with her children, to
continue to use drugs, to steal needles, and not obtain stable housing. Therefore, this case is not
reconcilable with the facts of Newman.
Furthermore, the statutory grounds for termination exist “when the conditions that
brought the children into foster care continue to exist despite time to make changes and the
opportunity to take advantage of a variety of services.” White, 303 Mich. App. at 710 [internal
citation and quotations omitted]. In this case, respondent mother is still without stable housing
and has yet to complete parenting classes and substance abuse counseling. Even though she has
rectified some of her deficiencies, significant ones still remain that were present when the
children came into foster care. Therefore, termination in this case is not premature.
In conclusion, the fact that respondent mother has a job and potential housing is not
enough to establish clear error in the trial court. Respondent mother only minimally complied
with the case service plan and has yet to firmly establish suitable housing for the minor children.
Therefore, the court did not clearly err when terminating respondent mother’s rights pursuant to
MCL 712A.19b(3)(g).
The trial court also terminated respondent mother’s parental rights pursuant to MCL
712A.19b(3)(j), finding that there was a reasonable likelihood that the children would be harmed
if returned to respondent mother’s care. Because at least one ground exists for termination, this
Court need not consider or decide this additional ground on which the trial court based its
termination. In re HRC, 286 Mich App 444,461; 781 NW2d 105 (2009). However, we will
address this issue for sake of completeness.
Harm includes both physical harm and emotional harm. In re Hudson, 294 Mich. App.
261, 268; 817 NW2d 115 (2011). TM has been seeing a counselor for therapy since March 18,
2014. During that time, TM expressed deep concerns about being stolen by respondent mother,
and that he wished to remain in the care of his grandmother. Further, EM has shown increased
agitation, or as her counselor put it, she has become “bratty.” The children’s counselor and care
worker both stated that the children could potentially face mental harm if returned to respondent
-5-
mother. This was evidenced by nightmares TM was having in which he was stolen by
respondent mother and killed. The record tends to indicate that the minor children are facing
some mental injury and likely would be subject to more if returned to respondents. Regarding
physical harm, respondent mother had yet to secure permanent housing. When the children were
homeless in the past, they contracted bed bugs and strep throat, strongly suggesting a likelihood
of further physical harm if returned to a homeless situation with respondent mother. Therefore,
the court did not clearly err when finding clear and convincing evidence under MCL
712A.19b(3)(j).
“Once a statutory ground for termination has been proven, the trial court must find that
termination is in the child’s best interests before it can terminate parental rights.” In re
Olive/Metts Minors, 297 Mich. App. 35, 40; 823 NW2d 144 (2012). “In deciding whether
termination is in the child’s best interests, the court may consider the child’s bond to the parent,
the parent’s parenting ability, the child’s need for permanency, stability, and finality, and the
advantages of a foster home over the parent’s home.” Id. at 41-42 (quotation marks and citations
omitted). “The trial court may also consider a parent’s history of domestic violence, the parent’s
compliance with his or her case service plan, the parent’s visitation history with the child, the
children’s well-being while in care, and the possibility of adoption.” White, 303 Mich. App. at
714.
The trial court did not clearly err in finding that termination of respondent mother’s
parental rights was in the best interest of the minor children. Though most of the reports and
testimony centered on TM’s actions, both children displayed anxiety during and after meetings
with respondent mother. Further, TM explicitly stated that he wished to remain with his
grandmother, and he was afraid respondent mother was going to steal him. These thoughts all
tend to indicate that TM and respondent mother’s bond was not very close. Further, respondent
mother’s parenting ability does not appear to have improved since the start of this case. She has
not completed any parenting classes and neglected to take responsibility for her actions, and the
trial court would not have been out of line in concluding that her recent abstinence from drug use
was insufficient to show a meaningful change. Respondent mother also did not secure stable
housing, and the trial court would not have been unreasonable to be dubious of her promise of
stability and permanency. Respondent mother has not established that she is unlikely to revert to
her old ways and once again endanger the minor children. Therefore, the court did not err when
it found that it was in the best interest of the minor children to terminate the parental rights of
respondent mother.
III. RESPONDENTS’ CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL AND
RESPONDENT FATHER’S CLAIM OF CLEAR ERROR ARE ABANDONED.
This Court considers the remaining issues to be abandoned, and thus declines to address
them. “An appellant’s failure to properly address the merits of his assertion of error constitutes
abandonment of the issue.” People v Harris, 261 Mich. App. 44, 50; 680 NW2d 17 (2004). In
regard to the ineffective assistance of counsel claims, respondents merely state their position
without any analysis describing how effective counsel would have changed the outcome.
-6-
Regarding respondent father’s assertion of clear error in terminating his parental rights, he
merely raises the issue in the statement of issues presented, but fails entirely to address it within
the body of his appellant brief. Therefore, this court considers the remaining issues abandoned.3
Affirmed.
/s/ Jane E. Markey
/s/ Donald S. Owens
/s/ Amy Ronayne Krause
3
Had this court addressed these issues, they would not have affected the outcome of this case.
-7-