In Re walker/brewer Minors ( 2023 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
In re WALKER/BREWER, Minors. January 26, 2023
No. 360410
Kent Circuit Court
Family Division
LC Nos. 18-052669-NA;
18-052670-NA;
18-052671-NA
Before: RIORDAN, P.J., and MARKEY and REDFORD, JJ.
PER CURIAM.
Respondent-father appeals as of right the trial court’s order terminating his parental rights
to the minor children SW, ZW, and JB pursuant to MCL 712A.19b(3)(c)(i) (conditions at
adjudication continue to exist), (3)(g) (failure to provide proper care and custody), and (3)(j)
(likelihood of harm if returned to parent). On appeal, respondent asserts that the trial court erred
by finding that statutory grounds existed to terminate his parental rights and that termination was
in the children’s best interests. However, for the reasons explained in this opinion, we affirm.
I. FACTS AND PROCEDURAL HISTORY
In April 2018, the trial court ordered that the children be removed from the care of their
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mother after the children witnessed a significant domestic violence incident between their mother
and her boyfriend. This was the third time that the children had been removed from their mother
on the basis of similar allegations. The children were then placed in respondent’s care and released
from the court’s jurisdiction. A custody order was issued that granted respondent full custody of
the children and stated that parenting time with the mother be supervised until further order of the
court.
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The mother voluntarily released her parental rights to the children, and she is not a party to this
appeal.
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However, in December 2018, the trial court entered an order removing the children from
respondent’s care on the basis of allegations that respondent was homeless; that he dropped the
children off with family members, including their mother and his grandmother, without providing
financial assistance or power of attorney; and that he was unreachable by staff at a mental-health
facility while SW was hospitalized for suicidal ideation. Respondent entered admissions to the
allegations and participated in services for about three years. In November 2021, the Department
of Health and Human Services (DHHS) sought the termination of respondent’s parental rights.
Following a hearing, which occurred over the course of three days, the trial court entered an order
terminating respondent’s parental rights. Respondent now appeals.
II. ANALYSIS
A. STATUTORY GROUNDS
First, respondent asserts that the trial court erred by finding that statutory grounds for
termination had been established by clear and convincing evidence. We disagree.
This Court reviews the trial court’s decision concerning statutory grounds for clear error.
In re VanDalen, 293 Mich App 120, 139; 809 NW2d 412 (2011). “A finding of fact is clearly
erroneous if the reviewing court has a definite and firm conviction that a mistake has been
committed, giving due regard to the trial court’s special opportunity to observe the witnesses.” In
re BZ, 264 Mich App 286, 296-297; 690 NW2d 505 (2004). Moreover, “[a]ppellate courts are
obliged to defer to a trial court’s factual findings at termination proceedings if those findings do
not constitute clear error.” In re Rood, 483 Mich 73, 90; 763 NW2d 587 (2009).
“In order to terminate parental rights, the trial court must find by clear and convincing
evidence that at least one of the statutory grounds for termination in MCL 712A.19b(3) has been
met.” In re VanDalen, 293 Mich App at 139. In this case, the trial court terminated respondent’s
parental rights on the basis of MCL 712A.19b(3)(c)(i), (3)(g), and (3)(j). In pertinent part, those
provisions provide the following:
(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, although, in the court’s discretion, financially able to do so,
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.
* * *
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(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.
In this case, the children were removed from respondent on the basis of allegations that he
did not have suitable housing, he left the children with family members without providing financial
assistance or power of attorney, and staff at a mental-health facility were unable to reach him to
obtain his consent to treat SW with medication during her hospitalization. The dispositional order
was entered on December 17, 2018. The termination hearing began on January 18, 2022, and
concluded on January 27, 2022. As a result, more than 182 days have elapsed since the issuance
of the dispositional order. See MCL 712A.19b(3)(c)(i).
There is no dispute that respondent consistently maintained adequate employment
throughout the case. Additionally, respondent obtained an apartment for the children. However,
the agency was concerned that respondent was not honest about his living situation. The children
reported that two other women and two children lived in the apartment. The children were required
to sleep on mattresses in the living room. There was also testimony that the children were directed
to lie about respondent’s girlfriend living in the apartment, while respondent consistently denied
having contact with her. During an unannounced visit, the caseworker observed women’s clothing
and hygiene products. Respondent’s aunt and mother were present, and the caseworker was unable
to access respondent’s bedroom. Given the children’s reports and the caseworker’s observations,
it was unclear whether respondent’s apartment was suitable for the children, as they had to sleep
on mattresses in the living room, and there were already five people living in the apartment.
Moreover, the caseworker could not determine whether all of the apartment’s residents were
appropriate to be around the children because respondent insisted that he lived alone.
Also, there were several occasions when agency staff were unable to reach respondent
while SW was hospitalized during the case. Respondent failed to recognize his role in the
children’s removal and their trauma. He constantly blamed the children’s mother and foster care
for the children’s mental-health issues. However, the children were removed from their mother’s
care twice before this case, and respondent declined to participate in those cases. Further, he left
the children in the care of their mother for a month at a time in which she was not even supposed
to have unsupervised visits. Respondent additionally left the children in the care of family
members who later reported that they were unable to properly care for the mental-health needs of
the children. Significantly, in October 2021, respondent brought up an incident of physical abuse
during a family-therapy session with SW. SW was surprised and upset by this topic. She was
subsequently hospitalized for suicidal ideations, and her therapist opined that the family session
was the primary cause of this hospitalization. Respondent did not have a concrete plan for the
children’s mental-health treatment, such as counseling, in the event that the children were returned
to his care. He also did not know SW’s mental-health diagnosis or any of the medications she
took. Ultimately, even after participating in services for over three years, respondent failed to
demonstrate an understanding of the children’s mental-health needs.
Finally, as observed by the trial court, respondent failed to complete his entire case-service
plan. He obtained a counselor, but with so many changes and delays, he failed to show any benefit
from counseling. Additionally, respondent was invited to attend the Enhanced Foster Care (EFC)
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team meetings, but he failed to do so even after the case manager attempted to accommodate his
schedule.
At the time of the termination hearing, SW was 16 years old, ZW was 14 years old, and JB
was 10 years old. They had been in their present foster care for more than three years, and this
was their third time in the foster system. None of the service providers believed that the children
could be immediately returned to respondent’s care. In the caseworker’s opinion, if respondent
engaged in services and was honest about his living situation, he would have to show six months
of stability before the agency would consider returning the children.
Accordingly, given respondent’s failure to obtain appropriate housing and lack of
understanding of the children’s trauma, their mental-health needs, and the age of the children, the
trial court did not clearly err by finding that MCL 712A.19b(3)(c)(i) had been established by clear
and convincing evidence. See In re Frey, 297 Mich App 242, 248; 824 NW2d 569 (2012)
(concluding that the trial court did not clearly err by finding insufficient compliance with, and
benefit from, the services provided necessitated the termination of the respondents’ parental
rights).2
B. BEST INTERESTS
Respondent also argues that the trial court erred by finding that termination was in the
children’s best interests. We disagree.
This Court reviews the trial court’s determination that termination was in the children’s
best interests for clear error. In re Olive/Metts Minors, 297 Mich App 35, 40; 823 NW2d 144(2012). “Even if the trial court finds that the [DHHS] has established a ground for termination by
clear and convincing evidence, it cannot terminate the parent’s parental rights unless it also finds
by a preponderance of the evidence that termination is in the best interests of the children.” In re
Sanborn, 337 Mich App 252, 276; 976 NW2d 44 (2021) (quotation marks and citation omitted).
The trial court must find that termination of parental rights is in the child’s best interests by a
preponderance of the evidence. Id. “In making its best-interest determination, the trial court may
consider the whole record, including evidence introduced by any party.” Id. (quotation marks and
citation omitted). While determining the child’s best interests, the trial court may consider a
variety of factors, including 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 276-277 (quotation marks and citation omitted). “The trial court may
also consider the child’s age, inappropriate parenting techniques, and continued involvement in
domestic violence.” Id. at 277. “It may further consider visitation history, the parent’s engaging
in questionable relationships, the parent’s compliance with treatment plans, the child’s well-being
in care, and the possibility of adoption.” Id.
In this case, the trial court determined that the children did not have a bond with respondent
because of his absence from most of their lives. While the trial court acknowledged that the
2
Having so concluded, we need not address the remaining statutory grounds for termination
identified by the trial court. See In re VanDalen, 293 Mich App at 139.
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children expressed their preference to live with respondent, it believed that such preference might
be out of fear or loyalty. Further, the trial court believed that the children needed stability. Their
foster-care situation provided the children with the most stability they had known in the past
several years, if not their entire lives. The trial court noted that the case went back several years,
but during that time respondent failed to demonstrate that he could provide the children with an
appropriate home. The trial court also found that respondent failed to show that he could properly
parent all three of the children.
The trial court’s finding was not clearly erroneous. While the caseworker testified that she
believed that the children were bonded to respondent and there were times during the case in which
the children stated their desire to live with respondent, the children were traumatized and had
significant mental health needs. They were placed together in a preadoptive home that offered
stability and compliance with mental-health treatment. The caseworker testified that the children
needed permanency, stability, and finality. This case had been open since 2018; however, the
children had been involved with the foster-care system since 2011. After participating in services
for over three years, it was unknown when or if the children could be safely returned to respondent.
As observed by the trial court, respondent failed to demonstrate that he had appropriate housing or
that he understood how to manage the children’s mental-health issues. Considering these factors,
there was at least a preponderance of the evidence to establish that termination of respondent’s
parental rights was in the children’s best interests.3 See id.
III. CONCLUSION
The trial court did not err by terminating respondent’s parental rights. We affirm.
/s/ Michael J. Riordan
/s/ Jane E. Markey
/s/ James Robert Redford
3
The trial court found that termination was in the children’s best interests beyond a reasonable
doubt. This higher standard is typically applicable in criminal cases. See People v Beck, 504 Mich
605, 626-627; 939 NW2d 213 (2019). Therefore, the conclusion that the evidence satisfied this
higher standard clearly would satisfy the lower standard of preponderance of the evidence.
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