in Re J Pointer Minor ( 2019 )

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UNPUBLISHED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 J. POINTER, Minor. February 7, 2019
No. 343702 & 343843
Ingham Circuit Court
Family Division
LC No. 17-000108-NA
Before: CAMERON, P.J., and BECKERING and RONAYNE KRAUSE, JJ.
PER CURIAM.
Respondent-mother and respondent-father appeal by right an order terminating their
parental rights to their daughter, JP, under MCL 712A.19b(3)(c)(i) (conditions leading to
adjudication continue), MCL 712A.19b(3)(g) (proper care or custody), and MCL 712A.19b(3)(j)
(risk of harm to child). We affirm.
I. FACTS
In January 2014, the Department of Health & Human Services (DHHS) received
information that mother had a substance abuse problem and was improperly supervising her
children.1 DHHS initially provided support services and did not remove the children from her
care. In 2016, mother attended inpatient substance abuse rehabilitation programs. During this
time, DHHS was informed that she had used drugs in the presence of her children and
improperly supervised JP. Mother subsequently attended substance abuse treatment for cocaine
and heroin abuse at the American Addiction Center in Florida. In January 2017, father, who had
not yet established parentage, advised that he had removed JP from mother’s care prior to her
admission in a substance abuse treatment program. On January 12, 2017, Sara Elsie, a DHHS
caseworker, spoke with mother, who indicated that she was still in treatment. Mother openly
admitted to using substances in the presence of JP and that this was her third rehabilitation
program admission. Mother also told Elsie that father was a drug dealer who kept heroin in a
safe in her home.
1
Mother’s other child was placed with his father.
DHHS held a family team meeting later that month. Mother indicated that she was
unemployed, had no income, was homeless, could not provide a safe living environment for JP,
was attempting to obtain and maintain her sobriety, was exploring attending a sober living
program, and had started attending Narcotics Anonymous (NA) meetings. She stated that she
had not given anyone legal authority to care for JP. Mother also stated that when father brought
JP for a visit the previous day, his car smelled of marijuana.
DHHS filed a removal petition with respect to mother in January 2017. The court took
temporary jurisdiction over JP, authorized the removal petition, and placed JP with her maternal
grandmother. Father was ordered to establish paternity within 14 days. Both respondents later
executed an affidavit of parentage for JP.
In March 2017, DHHS identified mother’s barriers to reunification as drug abuse,
consumption of narcotics in the presence of her children, inadequate housing, and
unemployment. Mother had undergone a substance abuse assessment, completed random drug
screens, and exercised supervised parenting time with JP. DHHS did not recommend that
mother attend parenting classes or that she undergo a psychological evaluation. However,
DHHS noted that mother’s mental health was a concern because she had been diagnosed with
anxiety and severe depression. The court found that JP’s relative placement continued to be
appropriate. After the hearing, the court entered an order of disposition as to mother, and
ordered her to obtain and maintain lawful employment, refrain from possessing and using
alcohol and drugs, keep all substance abuse counseling appointments, submit to random drug and
alcohol testing, attend NA meetings, participate in group parenting classes, and attend parenting
time visitations with JP.
In April 2017, DHHS denied the maternal grandmother’s request to obtain a guardianship
over JP because, after a home study with father, it found that he was able and willing to care for
JP. However, in May 2017, DHHS reversed this determination, noting:
[Father] has a medical marijuana card but denied any history of drug use
including [h]eroin, [c]rack, and [c]ocaine. On 05/03/2017 [he] completed a
random drug test at [DHHS] and tested positive for [h]eroin, [c]ocaine, and THC.
It is concerning that [he] is being dishonest about drug use and history. [He] is
also currently unemployed; he reported to the previous worker that he was laid off
and he has not reported any new employment possibilities. During the [child
protective services (CPS)] investigation there were concerns of [father’s]
involvement with drugs due to his criminal history and self-disclosure of selling
[c]ocaine approximately three years ago. The CPS worker, Ms. Sara Elsie,
reported that the case plan included making [him] a respondent father after
establishing legal parentage. A [S]anders[2] petition is being drafted and will be
filed with the [c]ourt to make [him] a respondent due to the listed concerns.
2
See In re Sanders, 495 Mich. 394, 422; 852 NW2d 524 (2014) (requiring a separate
adjudication with respect to a second parent).
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Later that month, father was added as a respondent to the removal petition. The petition
alleged that he had no source of legal income, an extensive criminal history, and a substance
abuse problem. DHHS alleged that despite “den[ying] having a substance abuse problem, and
report[ing] that he has never used [h]eroin, [c]rack, [c]ocaine, or any other drugs aside from
medical marijuana,” on “05/03/2017 and 05/17/2017 [he] tested positive for [h]eroin, [c]ocaine,
and [m]arijuana.” The court authorized the petition against father and ordered continued relative
placement for JP.
Father’s parent agency treatment plan required that he (1) “abstain from using illegal
substances and medication that has not been prescribed to him,” (2) “complete random drug
tests,” (3) “be referred for substance abuse assessment” and “participate in the
recommendations,” (4) “attend all scheduled parenting times with JP,” (5) “participate in
parenting classes,” (6) “obtain and maintain valid and lawful employment,” (7) “apply for
financial assistance as needed,” (8) “actively search for valid and lawful employment,” and (9)
“provide verification of any employment” to DHHS. At a pretrial hearing in June 2017, father
admitted that he had a criminal history, including misdemeanor and felony offenses relating to
controlled substances, that he had tested positive for drugs twice in 2017, and that he had no
source of income. He stated that since JP was born, she had been in his and his mother’s care
intermittently. The court entered an order of adjudication as to father and found that due to an
unfit home environment, there were reasons to exercise jurisdiction. Later that month, DHHS
modified father’s parent agency treatment plan to refer him for a psychological evaluation to
determine if further services were needed. DHHS eliminated recommendations pertaining to
employment.
In late June 2017, DHHS identified father’s barriers to reunification as substance abuse,
emotional instability, a parenting skills deficiency, and unemployment. DHHS reported that
father had missed only one parenting time visitation with JP during the period. DHHS described
father as cooperative and engaging with JP. The court continued JP’s placement with her
maternal grandparents and ordered that father comply with DHHS’s recommendations.
In August 2017, DHHS reported that mother had participated in counseling services, was
participating in the drug court program, and had returned to inpatient substance abuse treatment
after relapsing on Vicodin, heroin, cocaine, kratom, and methamphetamine. DHHS reported that
father was undergoing random drug tests but had failed to attend all screenings. In addition,
father had tested positive for cocaine use. However, DHHS reported that his parenting time with
JP was going well and that JP was happy to see him. The court continued JP’s relative
placement and required compliance with DHHS recommendations.
In November 2017, the court was notified that mother had been in the hospital after
relapsing on drugs. DHHS indicated that father had appropriate housing, a support system, and
interacted appropriately with DHHS workers. However, he had tested positive for cocaine in
August 2017 and for trace amounts of cocaine in October 2017; the trace amounts could have
come from “handling it.” During the relevant period, father had demonstrated appropriate and
practical parenting skills, did “not currently have any reported income” but had “not reported any
financial difficulty,” and had completed a substance abuse screening inventory indicating that he
was at low risk for substance abuse. However, he did not have an actual substance abuse
assessment; the results of the inventory were solely based on self-reported information. DHHS
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modified recommendations for father and required him to find and attend a parenting class, and
to actively search for employment.
In December 2017, father was arrested on charges relating to the delivery or manufacture
of controlled substances.3 He was incarcerated but was released from jail after posting bond in
early January 2018. As of February 15, 2018, he had made only one contact with DHHS since
being released from jail, and he had not participated in DHHS services, drug screenings,
counseling, or parenting time since his arrest. He was deemed ineligible by substance abuse
counselors for substance abuse treatment due to his inventory responses. Meanwhile, mother
was still receiving substance abuse treatment and random drug testing. DHHS recommended
that she attend 12-step NA meetings at least three times per week and participate in individual
therapy through community mental health. DHHS reported that she had entered residential
substance abuse treatment in February, but was discharged approximately two weeks later
because she had smuggled in a prescription drug and was using it illicitly. DHHS further
reported that mother had not made progress toward reunification with JP because she continued
to use illicit substances. She was later discharged from drug court before completing the
program.
Later in February 2018, father contacted DHHS to resume services. DHHS made a
referral for random drug testing in March 2018, but was unable to contact father to inform him of
the new referral. In March 2018, DHHS filed a petition to terminate respondents’ parental rights.
At the termination hearing in April 2018, caseworker Brittany Massa testified that she
had worked with respondents and JP for approximately one year. She testified that the initial
barriers to reunification were mother’s substance use, and her issues with housing and
employment, emotional stability, and parenting skills. Massa believed that mother did not
benefit from the services made available to her. Massa had concerns about mother’s emotional
state and stability, noting that at times she would remain in bed for “weeks at a time” and had
expressed suicidal ideation. Massa believed this emotional instability affected mother’s
parenting skills.
Massa stated that guardianship for JP would not be appropriate due to JP’s young age,
and that permanency through adoption was the “most final” solution. She also noted that JP’s
grandparents were not licensed legal guardians. Massa recommended that the court terminate
respondents’ parental rights to JP. The court found that termination was proper and determined
that termination was in the best interests of JP.
3
Michigan State Police Detective Les Rochefort testified at respondents’ termination trial that he
had investigated father in the past for controlled substances violations and had worked with a
confidential informant to purchase cocaine from father. In the course of his investigation, he
searched a home that he believed was father’s because he found a piece of mail addressed to him
at the address. A search of the residence uncovered approximately 1,700 grams of powdered
cocaine, 150 grams of crack cocaine, and 600 grams of fentanyl. Detective Rochefort stated that
this amount was consistent with dealing drugs, and that he had witnessed father conduct a drug
deal on October 6, 2017.
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I. ANALYSIS
A. REASONABLE EFFORTS
Father argues that DHHS failed to provide sufficient reunification services. He failed to
preserve this issue by objecting to the adequacy of services when the case service plan was
adopted or soon afterward. In re Frey, 297 Mich. App. 242, 248; 824 NW2d 569 (2012), quoting
In re Terry, 240 Mich. App. 14, 27; 610 NW2d 563 (2000).4 Unpreserved issues are reviewed for
plain error affecting substantial rights. In re Utrera, 281 Mich. App. 1, 8-9; 761 NW2d 253
(2008). Three requirements must be met to avoid forfeiture under the plain error rule: (1) the
error must have occurred, (2) the error was plain, i.e., clear or obvious, (3) and the plain error
affected substantial rights. In re VanDalen, 293 Mich. App. 120, 135; 809 NW2d 412 (2011).
“Generally, an error affects substantial rights if it caused prejudice, i.e., it affected the outcome
of the proceedings.” In re Utrera, 281 Mich. App. at 9.
“Reasonable efforts to reunify the child and family must be made in all cases” except
under certain circumstances not present in this case. MCL 712A.19a(2). “[T]he court must
consider whether efforts by the supervising agency to reunify a family are reasonable.” In re
Rood, 483 Mich. 73, 98; 763 NW2d 587 (2009) (opinion by CORRIGAN, J.) (quotation marks
and citation omitted). Although DHHS “has a responsibility to expend reasonable efforts to
provide services to secure reunification, there exists a commensurate responsibility on the part of
respondents to participate in the services that are offered.” In re Frey, 297 Mich. App. at 248.
“Not only must respondent cooperate and participate in the services, [he] must benefit from
them.” In re TK, 306 Mich. App. 698, 711; 859 NW2d 208 (2014).
Father takes issue with DHHS’s failure to obtain a psychological assessment for him, and
its failure to notify him of a referral for drug testing after he was released from jail in January
2018. He argues that had he been provided with a psychological evaluation and drug tests after
his release from jail, his awareness of his substance abuse issue would have improved, which
would have allowed him to reunite with JP. However, throughout the pendency of the
proceedings, father denied that he had a substance abuse problem. Moreover, while he was
undergoing random drug screens for the seven months leading up to his arrest, he continued to
test positive for cocaine and heroin while denying that he was using drugs. DHHS referred him
for an evaluation, and although he completed a substance abuse inventory, his lack of
communication with the service provider foreclosed a full psychological evaluation. The results
of the self-reporting inventory showed that he was at a low risk for substance abuse. When his
persistent substance abuse denials, which appear to have been reflected in the inventory’s results,
are contrasted with his persistent positive drug tests, there is no indication of any failure on
DHHS’s part. Rather, the results demonstrate that father had an opportunity to be honest about
his drug use with a service provider competent in methods to assist him, and receive accordant
services, but instead, gave answers that rendered the inventory a useless tool.
4
The Michigan Supreme Court recently expressed disapproval of this rule, but declined to
overturn it. In re Hicks/Brown, 500 Mich. 79, 88-89; 893 NW2d 637 (2017).
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DHHS’s failure to inform father of a renewed drug testing referral after his release from
jail is muted by the fact that father only now on appeal recognizes his need to remedy his
substance abuse issues. During the pendency of the case, DHHS noted that father did not
understand the effect that his involvement with drugs and his abuse of substances could have on
JP. There is no evidence in the record, beyond the fact that father contacted DHHS in February
2018 after his release from jail to again work with the Department, that father would have
changed his duplicitous behavior in continuing to use substances while denying a substance
abuse issue. It is unclear what benefit, if any, father would have received from a psychological
assessment or continued drug tests given his history of denying substance abuse. Thus, he has
not established the prejudice necessary to demonstrate plain error.
DHHS cannot be said to have failed in referring father to parenting classes, because the
record demonstrates that DHHS actually required him to find and attend a parenting class on his
own. That he did not do so is not attributable to any failure on DHHS’s part. Additionally,
while a parenting class may have provided father with better parenting skills and strategies,
DHHS reported that his parenting skills were adequate and that he engaged appropriately with
JP. A parenting class would not logically have led to a change in father’s truthfulness with
himself about his substance abuse issue. Thus, he has not demonstrated plain error from the lack
of provision of any parenting class.
B. GROUNDS FOR TERMINATION
Father also argues that the court erred in finding grounds for termination of his parental
rights. This Court reviews a determination whether statutory grounds exist to terminate parental
rights for clear error. In re Trejo Minors, 462 Mich. 341, 356-357, 373; 612 NW2d 407 (2000).
“Clear error exists when some evidence supports a [determination or] finding, but a review of the
entire record leaves the reviewing court with the definite and firm conviction that the lower court
made a mistake.” In re Dearmon, 303 Mich. App. 684, 700; 847 NW2d 514 (2014). This Court
must defer to the court’s special opportunity to observe the witnesses. Id.
To terminate parental rights, the trial court must find clear and convincing evidence of
one or more of the statutory grounds set forth in MCL 712A.19b(3). In re Olive/Metts, 297 Mich
App 35, 41; 823 NW2d 144 (2012). In this case, the court terminated parental rights under MCL
712A.19b(3)(c)(i), (g), and (j), which at the time of the termination proceedings5 provided for
termination of parental rights if:
(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:
5
MCL 712A.19b(3)(g) has since been substantively amended. 2018 PA 58, effective June 12,
2018. The amendment does not affect the analysis of this case because respondent’s parental
rights were terminated on May 16, 2018.
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(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, 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.
* * *
(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.
1. CONDITIONS LEADING TO ADJUDICATION
Father argues that because DHHS failed to provide him with the referrals discussed
above, the court erred in finding that he had not rectified his substance abuse issue. However,
assuming for purposes of discussion that his substance abuse was not a valid reason for finding
that a condition for adjudication persisted, his criminality was another condition leading to
adjudication that he had not rectified. At the beginning of the case, mother identified father as a
drug dealer and said that he kept narcotics in her home. Father stated that he was unemployed
and implicitly denied dealing drugs, but never had financial difficulties. Father sold a
confidential informant drugs in 2017. In December 2017, he was arrested on drug charges. As
of the termination hearing, his criminal case was still pending and he likely faced a period of
imprisonment. This evidence demonstrates that father did not rectify his criminality within 182
days of the entry of the first dispositional order. Thus, termination of father’s parental rights
under MCL 712A.19b(3)(c)(i) was proper, and the court did not clearly err in finding so.
2. PROPER CARE AND CUSTODY
Father also argues that the court erred in ordering termination under MCL
712A.19b(3)(g). He maintains that he always provided JP with proper care and custody while
she was in his care, and that in 2017, DHHS determined that he was a fit parent. However, while
father occasionally visited with JP, and those visits were deemed appropriate by DHHS, they do
not demonstrate that father ever provided JP proper care or custody.
Mother stated that she never gave father legal or physical custody of their child. Before
he established parentage, JP was placed with her grandmother and remained in the
grandmother’s care until the termination hearing. The placement occurred before father’s short
stint in jail from December 2017 to January 2018. During the course of the case, father never
had a legal means of income, and he was arrested for being involved in the drug trade. Father
consistently tested positive for cocaine and heroin use, despite court orders and DHHS
recommendations not to use drugs. Despite these consistently positive drug test results, he
denied he had a substance abuse issue. A parent’s failure to comply with a service plan is
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evidence of the parent’s failure to provide proper care and custody. In re White, 303 Mich. App.
701, 710; 846 NW2d 61 (2014). Although father asserted at the termination hearing that he
would be compliant with DHHS and the court going forward, his past actions and his failure to
address his substance abuse and criminality provided little support for that contention. Father
never provided proper care or custody for his child, and his conduct during the pendency of this
case amply supported the conclusion that there was no reasonable expectation that he would be
able to do so within a reasonable time considering his child’s age.
3. REASONABLE LIKELIHOOD OF HARM
Finally, father argues that the court erred in ordering termination under MCL
712A.19b(3)(j). Although there is no evidence that father harmed JP in the past, his failure to
address his serious issues of criminal behavior and substance abuse provided clear and
convincing evidence that there was a reasonable likelihood, based on his conduct, that JP would
be harmed if placed in his care. Notably, he was suspected of dealing large amounts of heroin,
fentanyl, and cocaine, substances that would pose a risk of harm to a young child. Accordingly,
the court did not clearly err in finding that there was a reasonable likelihood that JP would be
harmed if returned to father’s care.
C. BEST INTERESTS
Both respondents argue that the trial court erred in determining that termination of
parental rights was in JP’s best interests. This Court reviews the best interest determination for
clear error. In re Trejo, 462 Mich. at 356-357.
“If the court finds that there are grounds for termination of parental rights and that
termination of parental rights is in the child’s best interests, the court shall order termination of
parental rights and order that additional efforts for reunification of the child with the parent not
be made.” In re Olive/Metts Minors, 297 Mich. App. at 41-42. The determination of a child’s
best interests is made on the basis of the preponderance of the evidence. In re Moss, 301 Mich
App 76, 89; 836 NW2d 182 (2013). Factors to consider include child-parent bonding, parenting
skills, the child’s need for permanency, stability, and finality, and also how the home placement
compares with the parent’s home. In re Olive/Metts, 297 Mich. App. at 41-42. The court may
also consider the length of time the child was in care, the likelihood that the child could be
returned to the parent’s home within the foreseeable future, and compliance with the case service
plan. In re Payne/Pumphrey/Fortson, 311 Mich. App. 49, 64; 874 NW2d 205 (2015), citing In re
Frey, 297 Mich. App. at 248-249. In addition, the court may consider “the [child’s] well-being
while in care, and the possibility of adoption.” In re White, 303 Mich. App. at 714. However, a
child’s placement with relatives weighs against termination, MCL 712A.19a(6)(a), and the court
must expressly consider the child’s relative placement in making its best-interest determination.
Olive/Metts, 297 Mich. App. at 43.
In making its best-interest determination, the court considered JP’s age, respondents’ lack
of compliance with their case service plans, mother’s substance abuse, father’s continued
criminality, JP’s need for permanency, and the likelihood that JP could not be reasonably
returned to their care in the foreseeable future. The record demonstrates that each respondent
failed to recognize the dangers posed by their substance abuse issues, that respondent father did
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not recognize the danger posed by his criminality, and that both continued using drugs and father
continued being involved in criminal activity throughout the pendency of the case, even with the
considerable assistance and guidance of the court, DHHS, and service providers.
Mother’s emotional and substance abuse issues persisted throughout the case. She was
hospitalized in relation to her substance abuse, had suicidal ideations, received inpatient
substance abuse treatments, and despite receiving extensive therapy and counseling, as recently
as two months before the termination hearing, was discharged from a residential treatment
facility after being caught with a smuggled illicit drug. It is apparent that mother had not
addressed her substance abuse issues by the termination hearing, and perhaps had regressed.
There were indications that mother’s parenting skills were affected by her substance abuse.
Throughout the case, father denied substance abuse, despite testing positive for cocaine
and heroin use, and denied dealing drugs, despite being arrested for doing so during the
pendency of the case. He initially admitted to selling cocaine for three years before his
involvement with DHHS, and mother stated that she stored heroin for him before she entered
rehabilitation. Although he denied selling drugs during the pendency of the case, he was not
employed, and never reported financial difficulties. He was identified by the Michigan State
Police as being involved in the drug trade, and was arrested in connection with the manufacture
and delivery of significant amounts of cocaine, heroin, and fentanyl. The Michigan State Police
witnessed him sell drugs.
In April 2018, when the court was considering terminating his parental rights, father was
facing likely imprisonment for the manufacture or delivery of controlled substances after being
arrested in December 2017. Although a criminal defendant is innocent until proven guilty, US
Cons, Am VI, one may infer from the inconsistencies regarding his personal drug use and drug
dealing that he has demonstrated duplicitous behavior during the course of the case. This
behavior undermines any argument that father had addressed the conditions that caused him to
come within the court’s jurisdiction.
Respondents contend that the court did not properly give credence to the fact that JP was
in a voluntary relative placement. However, the court did indeed consider this fact. The trial
court nevertheless concluded that given mother’s persistent drug addiction, father’s inability to
recognize his substance abuse issue, their consistent positive drug screens, and their uncertain
futures; both parents would be unable to provide JP with requisite support, permanency, and
stability in the future. Considering the considerable evidence presented that both respondents
had not addressed their substance abuse issues, and that each faced uncertain futures at the time
of the termination hearing due to substance abuse and criminality, it was not clearly erroneous
for the court to determine that, despite JP’s relative placement with her grandmother, long-term
guardianship was not an option “considering her high need for permanence and finality and
stability,” and termination of respondents’ parental rights was in her best interests.
Affirmed.
/s/ Thomas C. Cameron
/s/ Jane M. Beckering
/s/ Amy Ronayne Krause
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