in Re Montgomery Minors ( 2017 )

STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
In re MONTGOMERY, Minors. June 22, 2017
Nos. 335183; 335184
Wayne Circuit Court
Family Division
LC No. 13-513787-NA
Before: JANSEN, P.J., and MURPHY and BORRELLO, JJ.
PER CURIAM.
Respondents appeal by right the trial court order terminating their parental rights to the
minor children under MCL 712A.19b(3)(c)(i), (c)(ii), (g), and (j). We affirm.
If a trial court finds that a single statutory ground for termination has been established by
clear and convincing evidence and that it has been proved by a preponderance of the evidence
that termination of parental rights is in the best interests of a child, the court is mandated to
terminate a respondent's parental rights to that child. MCL 712A.19b(3) and (5); In re Beck, 488
Mich. 6, 10-11; 793 NW2d 562 (2010); In re Moss, 301 Mich. App. 76, 90; 836 NW2d 182
(2013); In re Ellis, 294 Mich. App. 30, 32; 817 NW2d 111 (2011). “This Court reviews for clear
error the trial court's ruling that a statutory ground for termination has been established and its
ruling that termination is in the children's best interests.” In re Hudson, 294 Mich. App. 261, 264;
817 NW2d 115 (2011); see also MCR 3.977(K). “A finding is clearly erroneous if, although
there is evidence to support it, we are left with a definite and firm conviction that a mistake has
been made.” In re HRC, 286 Mich. App. 444, 459; 781 NW2d 105 (2009). In applying the clear
error standard in parental termination cases, “regard is to be given to the special opportunity of
the trial court to judge the credibility of the witnesses who appeared before it.” In re Miller, 433
Mich. 331, 337; 445 NW2d 161 (1989). The trial court must “state on the record or in writing its
findings of fact and conclusions of law[,] [and] [b]rief, definite, and pertinent findings and
conclusions on contested matters are sufficient.” MCR 3.977(I)(1) (rule pertains to termination
proceedings).
In Docket No. 335183, respondent mother does not properly raise any issues concerning
the statutory grounds for termination of her parental rights, challenging only the trial court’s
finding that a preponderance of the evidence established that termination of her parental rights
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was in the best interests of the children. MCL 712A.19b(5); Moss, 301 Mich App at 88-90.1 In
regard to a child’s best interests, we place our focus on the child rather than the parent. Moss,
301 Mich App at 87. The trial court may consider such factors as “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.” In re Olive/Metts Minors, 297 Mich. App.
35, 41-42; 823 NW2d 144 (2012) (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.” In re White, 303 Mich. App. 701, 714; 846 NW2d 61 (2014).
First, respondent mother contends that, for purposes of the children’s best interests, the
court erred because it did not consider that the children’s placement with their paternal
grandmother weighed against termination, as required by Olive/Metts, 297 Mich App at 43. In
that case, this Court held that placement with relatives at the time of the termination hearing is
“an explicit factor to consider in determining whether termination was in the children’s best
interests[.]” Id. (quotation marks and citation omitted). “A trial court’s failure to explicitly
address whether termination is appropriate in light of the children’s placement with relatives
renders the factual record inadequate to make a best-interest determination and requires
reversal.” Id. However, the Court further held that “the trial court may terminate parental rights
in lieu of placement with relatives if it finds that termination is in the child’s best interests.” Id.
Our review of the record reveals that, although the trial court did not give a lengthy explanation,
the court very clearly considered the factor that the children were living with their paternal
grandmother and then determined that termination of respondent mother’s parental rights was
nonetheless in the best interests of the children. Therefore, the court complied with the
requirement set forth in Olive/Metts.
Respondent mother also contends that the trial court erred in failing to consider a
guardianship instead of termination. Again, we disagree. “[T]he appointment of a guardian is
only appropriate after the court has made a finding that the child cannot be safely returned to the
home, yet initiating termination of parental rights is clearly not in the child’s best interests.” In
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Respondent mother frames her argument and the issue in terms of the children’s best interests,
and the body of her brief relative to her argument focuses solely on the best interests of the
children. However, in the “conclusion” section of her brief, she states, in part, that the trial court
“erred in finding that the conditions that led to the original adjudication continued to exist, and
that those conditions cannot be remedied within a reasonable period of time.” No more is said
on the matter. The one-sentence argument essentially encompasses MCL 712A.19b(3)(c)(i) – a
ground for termination. The issue or argument is not properly presented, MCR 7.212(C)(5) and
(7), and is not adequately or properly briefed, Mudge v Macomb Co, 458 Mich. 87, 105; 580
NW2d 845 (1998). Moreover, on substantive review and consideration of the record, we hold
that the trial court did not clearly err in finding clear and convincing evidence in support of MCL
712A.19b(3)(c)(i). MCL 712A.19b(3); MCR 3.977(K); Ellis, 294 Mich App at 32. And
regardless, only one statutory ground had to be established, MCL 712A.19b(3), and respondent
mother does not challenge the other grounds.
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re TK, 306 Mich. App. 698, 707; 859 NW2d 208 (2014) (citation omitted). And then the court
must determine that it is in the child’s best interests to appoint a guardian. Id. A guardianship
may be appropriate when “an ongoing relationship with [the parent]—rather than termination—
is in the child[]’s best interests.” In re Mason, 486 Mich. 142, 168-169; 782 NW2d 747 (2010)
(citation omitted).
The record clearly shows that a guardianship would not have been in the best interests of
the children because of the continuing animosity and conflict in the relationships between
respondents and the paternal grandmother. The trial court found that not only could respondents
not get along with each other, each respondent could not get along with the paternal
grandmother. A guardianship would only have created a chaotic situation for the children in
which they would be continually embroiled in the arguments between respondents and their
guardian. This would not have given the children the stable home that they required. In
addition, the record clearly reflects that respondent mother had serious mental and physical
health problems that needed to be addressed before she could attempt to parent her children.
After almost three years of services, respondent mother’s mental and physical health had
deteriorated. She had visited with her children only six times in the eleven months preceding the
termination hearing. The bond between respondent mother and the children had weakened to the
point where they were having difficulty identifying her. She had never found a permanent home
and was homeless at the time of the termination hearing. Respondent mother had also failed to
fully participate in or benefit from services, and the children were in great need of finality. A
guardianship would have kept the children in constant limbo, waiting for respondent mother
when there was no reasonable expectation that she would be able to care for them within a
reasonable time. A guardianship was not appropriate in this case because it was clearly not in
the best interests of the children. Therefore, we hold that the court did not err when it
determined that termination of respondent mother’s parental rights, and not a guardianship, was
in the best interests of the children.
In Docket No. 335184, respondent father first contends that the trial court clearly erred in
finding clear and convincing evidence to support the statutory grounds for termination. We
disagree. Respondent father’s parental rights were terminated under MCL 712A.19b(3)(c)(i),
(c)(ii), (g), and (j). Concerning respondent father, this case was brought into court based on
domestic violence, anger issues, and homelessness. Three years later, despite numerous services,
the situation remained unchanged. Although respondent father attended many of the services, he
was terminated early from several because he refused to cooperate. After four referrals for
family therapy, there was never any progress due to lack of cooperation, hostile interaction, and
refusal to participate. Respondent father’s actions and behaviors demonstrated that he had not
benefited from anger management or parenting services. In re Gazella, 264 Mich. App. 668, 676;
692 NW2d 708 (2005). He still had serious anger issues. Although he regularly attended
visitation, his actions with the young children were inappropriately rough and the visits were
chaotic because he was unable to manage the children. Respondent father’s contention that his
mother would help him parent the children ignores the fact that he and his mother have such an
acrimonious relationship that they could not even participate in family therapy, let alone
cooperate in raising the children, and there was no evidence that the relationship had improved.
In addition, respondent father’s SSI income was not sufficient to cover his own expenses. He
was behind on his utility payments and could not drive his car because he could not afford
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insurance. He admitted that being on SSI had made him “lazy.” Respondent father never had
housing that was suitable for the children, and at the time of the termination hearing, he was
searching for new Section 8 housing. Every provider had reported that respondent father was
slow to learn. Whether it was from resistance to authority, lack of cognitive capacity, or both, at
the time of the termination hearing respondent father still did not know how to care for the
special needs of his children and had not changed his behaviors. There was clear and convincing
evidence that the conditions that led to the adjudication continued to exist and that there was no
reasonable likelihood that they would be rectified within a reasonable time considering the ages
of the children. Further, respondent father had been given more than a reasonable opportunity to
rectify all the conditions that were barriers to reunification, but he had not rectified those
conditions, and there was no reasonable likelihood that he would rectify them within a
reasonable time considering the ages of the children. Therefore, the trial court did not clearly err
in finding clear and convincing evidence to support termination under MCL 712A.19b(3)(c)(i)
and (c)(ii).
Based upon the evidence that respondent father had not learned to control his anger, was
unable to accept authority figures, had refused to cooperate with family therapy, had an
acrimonious relationship with his mother and the mother of the children, had not learned proper
parenting skills or how to care for the special needs of his children, and did not have suitable
housing or sufficient income for the children, there was clear and convincing evidence that,
without regard to intent, he had failed to provide proper care or custody for his children and there
was no reasonable expectation that he would be able to provide proper care and custody within a
reasonable time considering the children’s ages. Therefore, the trial court did not clearly err in
finding clear and convincing evidence to support termination of respondent father’s parental
rights under MCL 712A.19b(3)(g). Finally, based on the same facts, most importantly his rough
and inappropriate physicality with his very young children and his inability to control his anger,
and including the fact that respondent father allowed dangerous people to stay in his home, the
trial court did not clearly err in finding clear and convincing evidence that there was a reasonable
likelihood, given respondent father’s conduct or capacity, that the children would be at risk of
harm if returned to respondent father. MCL 712A.19b(3)(j).
Next, respondent father contends that the trial court clearly erred in finding by a
preponderance of the evidence that termination of his parental rights was in the best interests of
his children. As did respondent mother, respondent father also raises the argument that the trial
court failed to consider the children’s placement with relatives. We have already addressed this
issue, and we reach the same conclusion here. While it may not have been an extensive
explanation, the trial court acknowledged that the children had been in a relative placement but
still found that it was in the best interests of the children to terminate respondent father’s parental
rights. This finding complied with legal requirements. Olive/Metts, 297 Mich App at 43,
With respect to the children’s best interests, other than the fact that the children were
bonded to respondent father because he visited regularly, respondent father’s statements that he
complied with the treatment plan, had rectified the conditions that brought the children into care,
and could provide them with a safe, suitable, and stable environment, were belied by the
evidence. Although he attended and even completed some of the services, such as parenting
classes, he demonstrated by his actions and conduct that he had not benefited from them.
Gazella, 264 Mich App at 676. He had not learned to control his anger, and he had not learned
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how to properly care for his children. Further, he continued to be resistant to any corrections or
suggestions from CPS workers and services providers. He did not have a suitable home with a
safe environment for his children. Respondent father lived in an area of drug houses and heavy
drug use, allowed unsuitable people to reside in his home, and dismissed the workers’ concerns.
At the time of the termination hearing, he was being forced from his current home and had to
find new housing. He could not get along with his mother or the mother of his children.
Respondent father resisted authority figures, whom, as a parent, he would have to deal with, such
as medical providers and teachers. He demonstrated that he was not invested in changing or
improving himself. Further, it was questionable whether respondent father had the capacity to
learn or to change. Therefore, we hold that the trial court did not clearly err in finding by a
preponderance of the evidence that termination of respondent father’s parental rights was in the
best interests of the children.
Affirmed.
/s/ Kathleen Jansen
/s/ William B. Murphy
/s/ Stephen L. Borrello
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