in Re adair/neal Minors ( 2017 )

STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
In re ADAIR/NEAL, Minors. December 28, 2017
Nos. 337931; 337932
Wayne Circuit Court
Family Division
LC No. 14-517114-NA
Before: MURRAY, P.J., and K. F. KELLY and FORT HOOD, JJ.
PER CURIAM.
In these consolidated appeals, respondent-mother M. Adair and respondent-father J. Neal
each appeal as of right from a circuit court order terminating their parental rights to the minor
children pursuant to MCL 712A.19b(3)(c)(i), (g), and (j). We affirm.
I. STATUTORY GROUNDS FOR TERMINATION
Both respondents argue that the circuit court erred in finding that a statutory ground for
termination was established by clear and convincing evidence.
The petitioner bears the burden of proving a statutory ground for termination by clear and
convincing evidence. MCL 712A.19b(3); In re Trejo, 462 Mich. 341, 350; 612 NW2d 407
(2000). This Court reviews for clear error a circuit court’s decision that a statutory ground for
termination has been proven by clear and convincing evidence. MCR 3.977(K); In re Trejo, 462
Mich. at 356-357. A decision qualifies as clearly erroneous when, “although there is evidence to
support it, the reviewing court on the entire evidence is left with the definite and firm conviction
that a mistake has been made.” In re JK, 468 Mich. 202, 209-210; 661 NW2d 216 (2003). Clear
error signifies a decision that strikes this Court as more than just maybe or probably wrong. In
re Trejo, 462 Mich. at 356. This Court “give[s] deference to the trial court’s special opportunity
to judge the credibility of the witnesses.” In re HRC, 286 Mich. App. 444, 459; 781 NW2d 105
(2009).
A. MCL 712A.19b(3)(c)(i)
A circuit court may order termination of parental rights under MCL 712A.19b(3)(c)(i) if
the evidence clearly and convincingly establishes:
(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
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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.
Approximately 31 months had elapsed between the circuit court’s entry of the initial
dispositional order and the termination hearing. In August 2014, respondents admitted the
allegations in the July 2014 amended petition. Respondent-mother admitted that she
inappropriately spanked the children, leaving bruises and welts on their bodies. She admitted
knowing that her physical discipline was wrong, but acknowledged that she had used it for
approximately two years. Moreover, Child Protective Services (CPS) had previously
substantiated six allegations of respondent-mother’s physical abuse of the children between 2008
and 2013. Respondent-father conceded that he had not supported or visited the children between
September 2012 and October 2013. Although he had resumed providing financial support for
the children, he last saw them in July 2012.
In September 2014, the circuit court ordered respondent-mother to complete parenting
classes, attend individual therapy that addressed anger management, undergo a psychological
evaluation, maintain appropriate housing and a suitable income, and regularly attend parenting
times. The court ordered respondent-father to participate in parenting classes, complete
individual therapy, maintain suitable housing, maintain an income appropriate to support the
children, and attend parenting times. The court later ordered respondents and the children to
participate in family therapy.
Clear and convincing evidence established that the conditions leading to the children’s
adjudication in August 2014 continued to exist in March 2017, with no reasonable likelihood of
being rectified within a reasonable time. The testimony of caseworker Dana Brown, case
supervisor Laurie Webber, and respondent-mother indicated that respondent-mother had
completed parenting classes, a parenting assistance program, and a psychological evaluation.
Brown and Webber also agreed that respondent-mother was attending family and individual
therapy, but testified that she had not successfully completed her therapy at the time of the
termination hearing. Webber denied that respondent-mother’s therapist had recommended
reunification with the children. Brown and Webber also testified that respondent-mother failed
to substantiate a suitable income.
Respondent-mother testified that she owned a house in Detroit, but she owed
approximately $3,000 in unpaid real estate taxes on the property. In addition, Brown testified
that when she inspected the house in April 2016, it had electricity and running water only in the
kitchen, there was “dog feces in several of the rooms,” and the home had the “aroma of dog urine
and feces.” The house had also been infested with cockroaches until petitioner paid an
exterminator to treat the infestation. Although Brown had provided respondent-mother with
applications for housing assistance and other offers of housing assistance, she failed to pursue
alternate housing. Webber testified that in March 2017, respondent-mother still lacked housing
suitable for occupancy by the children.
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Brown, Webber, and respondent-mother testified that she and the children shared a strong
bond. But according to Brown and Webber, respondent-mother failed to benefit from the anger
management goal of her individual therapy. Brown testified that respondent-mother often
ignored her oldest daughter during parenting times because the child had denied wanting to live
with respondent-mother. In January and February 2016, respondent-mother became angry
toward Brown, and argued and yelled in the children’s presence.
Brown, Webber, and respondent-father all testified that he had completed parenting
classes. However, Brown and Webber agreed that respondent-father had failed to participate in a
psychological evaluation, lacked housing suitable for the children, and had no verified income
after March 2016. Brown and Webber also agreed that respondent-father had not completed
family or individual therapy.
Respondent-mother disputed much of the testimony. She denied that her house was in
significant disrepair, and claimed that it had electricity and running water throughout. She also
claimed that she had learned in parenting classes not to physically discipline the children. She
stated that she had been employed through a temporary employment agency at a factory since
January 2017. Respondent-mother testified that she attended therapy to address anger
management and other issues until petitioner inexplicably cancelled the counseling, and she
denied that petitioner had ever provided her with services to improve her parenting skills before
2014, or that she had spanked the children with a rope. The circuit court, however, expressly and
repeatedly discredited respondent-mother’s testimony, a credibility assessment to which this
Court defers. In re HRC, 286 Mich. App. at 459.
The circuit court afforded respondents approximately 31 months in which to demonstrate
improved parenting skills. Respondent-mother made only minimal progress in the areas of
primary concern, namely, her lack of appropriate housing, her longstanding history of physically
abusing the children, and her physical neglect of the children. Respondent-father also made little
to no progress toward maintaining housing, possessing an income sufficient to provide for the
children, or participating in therapy. The children had spent approximately 31 months as
temporary court wards, and urgently needed permanency and stability.
Respondent-mother misrepresents the holding of In re Trejo, 462 Mich. at 357-364,
regarding the propriety of termination of parental rights under MCL 712A.19b(3)(c)(i). Contrary
to respondent-mother’s contention, our Supreme Court affirmed an order terminating parental
rights in that case because the respondent failed to acquire appropriate housing or provide a plan
for the children’s custody during the year that the children resided in foster care. In re Trejo, 462
Mich. at 357-364. Furthermore, in this case, respondent-mother failed to make significant
progress toward several important components of her treatment plan, despite that she received
approximately 31 months to do so. Specifically, she did not demonstrate progress in family
counseling or individual counseling that included an anger management component in light of
her longstanding physical abuse of the children, she never obtained suitable housing, and she
failed to substantiate an income appropriate for supporting the children.
The evidence also clearly established that there was no reasonable likelihood that
respondents would improve their parenting skills within a reasonable time. A decision regarding
a reasonable time for improvement “appropriately focuse[s] not only on how long it would take
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respondent to improve her parenting skills, but also on how long her . . . children could wait for
this improvement.” In re Dahms, 187 Mich. App. 644, 648; 468 NW2d 315 (1991); see also In re
LE, 278 Mich. App. 1, 28; 747 NW2d 883 (2008). Respondents’ lack of progress after more than
31 months demonstrated that they were not reasonably likely to rectify their parenting
deficiencies within a reasonable time.
Accordingly, the circuit court did not clearly err in finding clear and convincing evidence
to terminate respondents’ parental rights pursuant to MCL 712A.19b(3)(c)(i).
B. MCL 712A.19b(3)(g)
Under MCL 712A.19b(3)(g), a circuit court can terminate a respondent’s parental rights
“if the court finds, by clear and convincing evidence,” that “[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.” Abundant evidence established respondents’ failure to properly care for,
protect, and supervise the children, and the unlikelihood that they might within a reasonable time
improve their parenting skills. In re JK, 468 Mich. at 213-214.
Clear and convincing evidence showed that respondents failed to properly parent the
children. Respondent-mother admitted that she inappropriately spanked the children, leaving
bruises and welts on their bodies. She admitted knowing that her physical discipline was wrong,
but acknowledged that she had used it for approximately two years. Indeed, CPS had
substantiated six allegations of respondent-mother’s physical abuse of the children between 2008
and 2013. Respondent-father conceded that he failed to support or visit the children between
September 2012 and October 2013. Although he had resumed providing financial support for
the children, he last saw them in July 2012. This evidence supports the circuit court’s
determination that both respondents failed to provide proper care or custody for the children.
Clear and convincing evidence also established that there was no reasonable expectation
that respondents would be able to rectify their parental shortcomings within a reasonable time in
light of the children’s ages. In re LE, 278 Mich. App. at 28; In re Dahms, 187 Mich. App. at 648.
As summarized in the discussion regarding the propriety of termination under MCL
712A.19b(3)(c)(i), clear and convincing evidence established that despite the circuit court’s
allowance of approximately 31 months for respondents to participate in parenting classes, family
therapy, and individual therapy, and to maintain appropriate housing and a suitable income,
respondents demonstrated minimal improvement in their abilities to provide for and supervise
the children. In the meantime, the children languished in foster care for more than 31 months
and required permanency and stability.
The circuit court did not clearly err in finding clear and convincing evidence supporting
termination of respondents’ parental rights pursuant to MCL 712A.19b(3)(g).
C. MCL 712A.19b(3)(j)
A circuit court also can terminate parental rights if evidence clearly and convincingly
establishes that “[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.” MCL
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712A.19b(3)(j). The record clearly and convincingly establishes that the event precipitating the
child protective proceeding involved respondent-mother’s spanking of the children with a rope,
which left bruising and welts on the children’s bodies. Respondent-mother admittedly knew that
her physical discipline was wrong, but acknowledged that she had used it for approximately two
years, and CPS had previously substantiated six allegations of respondent-mother’s physical
abuse of the children between 2008 and 2013. When the children arrived in foster care in 2014,
respondent-father admitted that he had failed to support or visit the children between September
2012 and October 2013.
Clear and convincing evidence established that for approximately 31 months after the
dispositional order, respondent-mother failed to significantly improve her parenting skills or her
problem with anger management. In addition, both respondents did not possess appropriate
housing, and they both lacked incomes suitable to provide for the children. We detect no clear
error in the circuit court’s conclusion that clear and convincing evidence established a reasonable
likelihood that the children remained at risk of potential emotional or physical harm in
respondents’ care. In re Hudson, 294 Mich. App. 261, 268; 817 NW2d 115 (2011) (explaining
that the risk of harm to children includes both potential emotional and physical harm).
Respondent-mother’s reliance on In re Boursaw, 239 Mich. App. 161, 169-178; 607
NW2d 408 (1999), is misplaced. In that case, the trial court terminated the parental rights of a
special needs respondent who had made substantial progress toward completing her treatment
plan, primarily because of the length of time the children had remained in care, approximately 10
months. This Court concluded that termination was premature because the respondent “had
made significant strides toward remedying the problems that had brought this matter to
petitioner's attention.” Id. at 176-177. In this case, respondent-mother was allowed
approximately 31 months to complete a treatment plan, but made little to no progress. She
attended parenting classes and completed a psychological evaluation, but she ignored the
requirement that she participate in family and individual therapy, including anger management
counseling in light of her longstanding physical abuse of the children. She also failed to obtain
suitable housing or a sufficient income to support the children. Unlike the respondent in In re
Boursaw, respondent-mother failed to make substantial progress after 31 months of participation
in her treatment plan.
II. BEST INTERESTS
Both respondents also argue that the circuit court erred in finding that termination of their
parental rights was in the children’s best interests.
Once the petitioner has proven a statutory ground, the circuit court must order
termination if “termination of parental rights is in the child’s best interests.” MCL 712A.19b(5).
Whether termination is in a child’s best interests is determined by a preponderance of the
evidence. In re Gonzales/Martinez, 310 Mich. App. 426, 434; 871 NW2d 868 (2015). A circuit
court’s decision regarding a child’s best interests is also reviewed for clear error. MCR
3.977(K); In re Trejo, 462 Mich. at 356-357.
In In re White, 303 Mich. App. 701, 713; 846 NW2d 61 (2014), this Court summarized:
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The trial court should weigh all the evidence available to determine the
children’s best interests. To determine whether termination of parental rights is in
a child’s best interests, the court should consider a wide variety of factors that
may include 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. 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. [Citations and quotation marks omitted.]
The circuit court did not clearly err in finding that termination of respondents’ parental
rights served the children’s best interests. The testimony agreed that a loving bond existed
between respondents and the children. Respondents completed parenting classes and regularly
attended parenting times. In light of respondent-mother’s physical abuse of the children in 2014
and the substantiated CPS complaints of her physical abuse dating back to 2005, respondent-
mother’s therapy was to address her anger management problem. But she and respondent-father
failed to complete family or individual therapy, even after multiple referrals by petitioner.
Respondents also demonstrated an inability to provide for the children’s housing or other needs.
Respondents did not possess appropriate housing or an income that would allow them to provide
for the children. The children had spent more than 31 months in foster care, and had strong
needs for finality, permanency, and stability. Furthermore, the children lived in separate foster
homes that were meeting their needs and could provide them with permanent homes. A
preponderance of the evidence supports the circuit court’s finding that termination of
respondents’ parental rights was in the children’s best interests.
Affirmed.
/s/ Christopher M. Murray
/s/ Kirsten Frank Kelly
/s/ Karen M. Fort Hood
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