20230221_C360123_53_360123.Opn.Pdf ( 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UNPUBLISHED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 HAGENSON-BAKER, Minors. February 21, 2023
No. 360123
Schoolcraft Circuit Court
Family Division
LC No. 20-003323-NA
Before: JANSEN, P.J., and REDFORD and YATES, JJ.
PER CURIAM.
Respondent appeals as of right the termination of her parental rights to her two children,
MHB and EHB, under MCL 712A.19b(3)(c)(i) (conditions that led to adjudication continue to
exist) and (ii) (failure to rectify other conditions).1 We affirm.
I. BACKGROUND
The children were initially removed when respondent, who was in the process of being
evicted, left them in the care of her third child’s father without food, money, or clothing, knowing
that this person did not have the resources to care for the children. Respondent entered a plea of
admission, and the court assumed jurisdiction. At the initial disposition, the court adopted a case
service plan that required respondent to obtain suitable housing, find employment, participate in
mental health services, and refrain from using any substances, including marijuana. Respondent’s
parenting time was to be supervised. At the first dispositional review hearing, respondent’s
parenting time was suspended because she had moved from the Upper Peninsula to the Detroit
area, and she stopped exercising her parenting time after moving. At the second review hearing,
respondent had not made any progress—she had been missed almost all drug screenings, she had
taken no steps to reestablish her parenting time, she had not participated in any counseling, and
she had not obtained housing or employment. When respondent had still made no progress at the
1
Respondent has a third child, AS, to whom her parental rights were not terminated. The father
of MHB and EHB had his parental rights terminated in a previous proceeding, and is not subject
to this appeal.
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third review hearing, the permanency goal was changed to termination, and the Department of
Health and Human Services (DHHS) filed a supplemental petition.
At the termination hearing, the evidence established that respondent had made virtually no
progress toward overcoming the barriers to reunification, and the court found that the statutory
grounds for termination had been established. However, the court gave respondent one more
chance to prevent termination; the court decided that the hearing would continue in 90 days and
that respondent’s parental rights would be terminated if she did not make significant progress
during that time. When the hearing resumed, respondent had found employment and undergone
the assessment process for mental health treatment. However, she was living in a motel and had
not obtained suitable housing, she had not taken any steps to reestablish parenting time, she missed
all of her mental health sessions after the assessment, and she had not seen the children in 15
months. Respondent submitted to 19 drug screens during the period between the two hearing
dates—she tested positive for cocaine at one, she tested negative at one, and she tested positive for
THC at all the others. In light of this lack of progress, the court terminated respondent’s parental
rights. This appeal followed.
II. DISCUSSION
Respondent argues that the trial court violated MCL 333.27955 by terminating her parental
rights on the basis of her marijuana usage. We disagree.
Respondent did not argue in the trial court that there was a violation of MCL 333.27955;
therefore, this argument is unpreserved. Unpreserved issues are reviewed for plain error affecting
substantial rights. In re Utrera, 281 Mich App 1, 8; 761 NW2d 253 (2008). This standard requires
a respondent to “establish that (1) error occurred; (2) the error was ‘plain,’ i.e., clear or obvious;
and (3) the plain error affected their substantial rights. And the error must have ‘seriously affected
the fairness, integrity or public reputation of judicial proceedings.’ ” In re Ferranti, 504 Mich 1,
29; 934 NW2d 610 (2019) (quotation marks, citations, and alterations omitted).
The grounds for termination of parental rights are provided in MCL 712A.19b(3), which
provides in relevant part:
The court may terminate a parent’s parental rights to a child if the court
finds, by clear and convincing evidence, 1 or more of 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.
(ii) Other conditions exist that cause the child to come within the court’s
jurisdiction, the parent has received recommendations to rectify those conditions,
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the conditions have not been rectified by the parent after the parent has received
notice and a hearing and has been given a reasonable opportunity to rectify the
conditions, and there is no reasonable likelihood that the conditions will be rectified
within a reasonable time considering the child’s age.
Respondent’s parental rights were terminated under MCL 712A.19b(3)(c)(i) and (ii). The court
likewise found that termination of parental rights was in the best interests of the children, as is
required under MCL 712A.19b(5).
Respondent does not challenge the court’s findings with respect to any particular statutory
grounds or best interests. Rather, she argues that the trial court’s order terminating her parental
rights violated a provision of the Michigan Regulation and Taxation of Marihuana Act, MCL
333.27951 et seq. MCL 333.27955(1) provides generally that the possession and consumption of
marijuana by those aged 21 years or older is not unlawful; it is undisputed that respondent’s
consumption of marijuana was protected by this provision. MCL 333.27955(3) provides:
A person shall not be denied custody of or visitation with a minor for
conduct that is permitted by this act, unless the person’s behavior is such that it
creates an unreasonable danger to the minor that can be clearly articulated and
substantiated.
Respondent’s parental rights were not terminated because of her marijuana use, but because
she failed to address any of the issues that brought her children into care. When respondent’s
parental rights were terminated, she did not have suitable housing, she had not been attending
counseling for her mental health or substance abuse, she had not attended parenting classes, and
she had not seen the children in 15 months. It is true that the court was concerned by respondent’s
marijuana usage, but she also tested positive for cocaine and methamphetamine during the
pendency of this case. Indeed, respondent’s marijuana usage does not seem to have been a major
factor in the court’s decision, and the court seemed flexible on this issue. The court at times stated
that it did not oppose the use of marijuana in general, that it would allow respondent to use
marijuana if presented with evidence that its impact on parenting was at least “neutral,” and that it
might be able to overlook marijuana usage if respondent demonstrated progress in each of the other
areas of need. Because the termination of respondent’s parental rights did not arise from her usage
of marijuana, it was not barred by MCL 333.27955.
Affirmed.
/s/ Kathleen Jansen
/s/ James Robert Redford
/s/ Christopher P. Yates
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