In Re Myers Minors ( 2022 )

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UNPUBLISHED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 MYERS, Minors. September 22, 2022
No. 359930
Kent Circuit Court
Family Division
LC No. 18-052510-NA;
18-052511-NA
Before: MURRAY, P.J., and O’BRIEN and REDFORD, JJ.
PER CURIAM.
Respondent-father appeals by right the trial court’s order terminating his parental rights to
his two sons: SDM and SKM. The trial court ordered termination under MCL 712A.19b(3)(c)(i),
(g), and (j). Because we conclude that respondent has not identified any errors that warrant relief,
we affirm.
I. DRUG ABUSE FINDINGS
A. STANDARD OF REVIEW
Respondent argues that the trial court erred in several respects when it made findings
involving his drug use. This Court reviews de novo whether the trial court properly interpreted
and applied the relevant statutes. See In re Gonzales/Martinez, 310 Mich App 426, 431; 871
NW2d 868 (2015). This Court, however, reviews the trial court’s factual findings underlying its
application of the law for clear error. Id. at 430; see also MCR 3.977(K). A finding is clearly
erroneous when this Court is left with the definite and firm conviction that a mistake has been
made. In re Gonzales/Martinez, 310 Mich App at 430-431.
B. ANALYSIS
A trial court may terminate a parent’s parental rights to a child if it finds by clear and
convincing evidence that the petitioner established one or more grounds for termination. See MCL
712A.19b(3). Once a trial court finds that the Department of Health and Human Services (the
Department) has established one or more grounds for termination, it must terminate the parent’s
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parental rights if it also finds that termination is in the child’s best interests. See MCL
712A.19b(5).
Respondent first argues that his positive test for cocaine and related evidence when making
its findings were insufficient to warrant terminating his parental rights. He also argues that the
trial court should have waited for the results of his hair follicle test and should have concluded that
respondent’s involvement with drugs was—at most—recreational and did not implicate his ability
to parent.
As respondent recognizes, the trial court did not terminate respondent’s parental rights
solely on the basis of his purported drug use. The trial court identified numerous barriers to
respondent’s reunification with the children: substance abuse, domestic relations, emotional
stability, resource management, parenting skills, and child characteristics. The continued
existence of these barriers implicated grounds for terminating his parental rights under MCL
712A.19b(3)(c)(i), (g), and (j). Even concerning the barrier of substance abuse, the trial court did
not find that respondent had been using substances. Rather, the trial court found that he did not
“have the supports for preventing a relapse” because he refused to admit that he had ever had a
drug problem and did not participate in any drug abuse prevention services after his release from
prison.
The trial court identified this barrier as only one of many barriers to respondent’s ability to
parent his children safely, and respondent has not stated how any error involving the trial court’s
findings about his drug use prejudiced the outcome of his termination hearing. Even if the trial
court erred about respondent’s drug use, the existence of the other barriers would still establish
grounds for terminating his parental rights, at the least, under MCL 712A.19b(3)(c)(i).
Accordingly, respondent has not met his burden to demonstrate that any error in this finding
warranted relief. See MCR 3.902(A); MCR 2.613(A). In any event, a careful review of the record
shows that the trial court did not clearly err when it found that respondent’s substance abuse
problem continued to be a barrier.1
Respondent also argues that the trial court should have postponed the termination hearing
to await his late hair follicle test, but, given the record, respondent had had ample opportunity to
act before the termination hearing and failed to do so. Moreover, there was no evidence in the
record about how his hair removal and delays might have affected the test results. Given the
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Respondent had a lengthy criminal record that included significant offenses associated with
substance abuse. He had been arrested for possession of marijuana and possession of cocaine, and
for maintaining a drug house. By July 2019, he had completed serving a sentence for driving under
the influence, third offense. As a result of his last incarceration, respondent was unable to care for
his children and could not prevent them from being neglected while in his wife’s care. From
September 2019 through February 2020, which was a few months after his release from prison for
an offense arising from substance abuse, respondent tested positive for cocaine. Although
respondent tested negative for substances for 31 of his tests in 2021, he tested positive for cocaine
in May 2021. He suggests on appeal that the positive results were unreliable and could not be
considered in terminating his parental rights. The record, however, supported a finding that the
test results were accurate.
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record, the trial court cannot be faulted for making its findings on the basis of the evidence before
it.
Respondent further argues that—even if the evidence established that he was using drugs—
there was no evidence that his drug use was anything other than recreational, and there was no
evidence that his recreational use posed a danger to his children. His argument is unpersuasive.
The evidence showed that respondent had repeatedly been arrested for behaviors associated with
his drug use and that, as a result, he was unable to parent his children, and they suffered from
trauma associated with his arrest and incarceration. Consequently, there was a direct connection
between his failure to rectify the barrier presented by his abuse of substances and the harm that the
children entrusted to his care had suffered and might suffer again if he had a relapse. And this
finding alone established grounds for terminating respondent’s parental rights under
MCL 712A.19b(3)(c)(i).
II. ANTISOCIAL PERSONALITY DISORDER
A. PRESERVATION AND STANDARD OF REVIEW
Respondent next argues that the trial court erred when it considered evidence about his
diagnosis of antisocial personality disorder without admitting the psychological evaluation and
erred when it terminated his parental rights on the basis of that diagnosis without requiring the
Department to provide him with services to rectify it.
To preserve an issue for appellate review, the issue must have been raised in the trial court.
See In re Utrera, 281 Mich App 1, 8; 761 NW2d 253 (2008). Similarly, to preserve an argument
that the Department should have provided additional services to preserve and reunify the family,
the parent must raise the issue at some time after the trial court adopted the case service plan and
before the ultimate disposition. See In re Atchley, ___ Mich App ___, ___; ___ NW2d ___ (2022)
(Docket Nos. 358502 and 358503); slip op at 2. This Court reviews de novo whether the trial court
properly interpreted and applied the relevant statutes, In re Gonzales/Martinez, 310 Mich App
at 431, and reviews the trial court’s factual findings for clear error. Id. at 430. However, to the
extent that respondent failed to properly preserve an issue for appellate review, this Court reviews
that claim of error for plain error affecting his substantial rights. In re Utrera, 281 Mich App at 8.
To establish a plan error that warrants relief, respondent must show that the trial court made a plain
error that affected the outcome of the proceedings, or that the error seriously affected the fairness,
integrity, or public reputation of judicial proceedings independent of the outcome. See id. at 8-9.
Respondent never objected to the testimony about his psychological evaluation or
otherwise asserted that it was improper for the trial court to consider the evaluation. He also did
not argue that the evaluator had to be called at the termination hearing and never asserted that the
Department had an obligation to provide him with services to help him overcome the problems
associated with his diagnosis. Consequently, his arguments concerning the admission of the
evidence concerning his psychological evaluation and whether the Department should have
provided him with more services are unpreserved. See id.; Utrera, 281 Mich App at 8.
B. ANALYSIS
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The trial court formally admitted respondent’s psychological evaluation, authored by Dr.
Jeffrey T. Kieliszewski, at the hearing held in December 2019. On the basis of the testing and
history, Dr. Kieliszewski diagnosed respondent as having a personality disorder—specifically,
antisocial personality disorder.
The trial court had the authority to consider the record from all the previous dispositional
hearings when determining whether the Department established its burden. See In re Hudson, 294
Mich App 261, 264; 817 NW2d 115 (2011) (recognizing that child protective proceedings are
viewed as one continuous proceeding); In re Jones, 286 Mich App 126, 129; 777 NW2d 728 (2009)
(stating that the trial court may take judicial notice of its records). Moreover, respondent’s
psychological evaluation was admissible at the termination hearing, and the trial court could have
considered it for all its probative value. See MCR 3.977(H)(2) (“At the hearing all relevant and
material evidence, including oral and written reports, may be received by the court and may be
relied upon to the extent of its probative value.”). Accordingly, had respondent objected to the
testimony at the termination hearing on the ground that the evaluation had not been formally
admitted at that hearing, the trial court could have admitted the report. Similarly, had respondent
wanted to cross-examine Dr. Kieliszewski, or controvert the report at the termination hearing, he
had the right to do so. See MCR 3.977(H)(2). He chose not to call Dr. Kieliszewski and chose
not to present any evidence to contradict his evaluation. On this record, respondent has not shown
that the trial court plainly erred to the extent that it considered the evaluation and related testimony
when making its findings of fact. In re Utrera, 281 Mich App at 8-9.
Likewise, respondent has not identified any services to treat antisocial personality disorder,
and Dr. Kieliszewski specifically wrote that counseling was contraindicated because the prognosis
was so poor. Instead, Dr. Kieliszewski identified services and efforts that the Department could
use to safeguard the children if returned to respondent’s care. The record shows that the
Department followed Dr. Kieliszewski’s recommendations. Therefore, respondent has also not
demonstrated a plain error premised on the Department’s failure to provide him with services
tailored to his diagnosis. See id.Nor has respondent shown that the trial court’s findings involving his diagnosis were
clearly erroneous. The trial court stated that antisocial personality disorder was not treatable
through counseling, and found that respondent had engaged in conduct that was consistent with
his diagnosis, and that emotional stability remained a barrier and a danger to the children. The
finding was entirely supported by the record. Dr. Kieliszewski wrote that persons such as
respondent were prone to instability, criminality, and drug use, which was consistent with
respondent’s history and constituted evidence that, on the basis of his personality disorder,
respondent was likely to again involve himself in unstable living situations, engage in criminal
activity, and abuse drugs. The trial court did not clearly err. See In re Gonzales/Martinez, 310
Mich App at 430-431.
Finally, although respondent argues that a diagnosis by itself does not constitute grounds
for termination, as noted the trial court identified respondent’s history of engaging in behaviors
that exposed his children to neglect, noting that those acts and omissions had led to the children’s
removal. It then found that those barriers continued to exist and stated that respondent’s antisocial
personality disorder was just one of those barriers.
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Respondent has not identified any error involving the trial court’s use of the psychological
evaluation or the testimony about the evaluation, and has not shown that the trial court’s findings
about his diagnosis were clearly erroneous.
III. PARENTING TIME AND PREFERENCES
A. STANDARD OF REVIEW
Respondent next argues that the trial court erred in several respects when it made its
findings about SDM’s behaviors before and after parenting time and concerning SDM’s
preferences. This Court reviews de novo whether the trial court properly interpreted and applied
the relevant statutes. See id. at 431. This Court reviews the trial court’s factual findings underlying
its application of the law for clear error. Id. at 430.
B. ANALYSIS
Respondent argues that the trial court erred when it considered the evidence that SDM had
behavior problems before and after parenting-time visits with respondent and erred to the extent
that it considered SDM’s preferences in terminating respondent’s parental rights. In discussing
the children’s best interests, the trial court recognized that there was some evidence that respondent
developed a bond with SDM during parenting therapy. The court, however, stated that there was
also evidence that SDM acted out before and after parenting sessions, which it characterized as
trauma behaviors. From that, it found that the bond between respondent and SDM was not a
healthy bond. It determined that that factor weighed in favor of finding that termination was in
SDM’s best interests. The trial court also cited SDM’s behaviors as evidence that the parenting-
time visits did not go well and that SDM preferred not to be placed with respondent.
Respondent does not contest the evidence that SDM acted out before and after visits with
him. Rather, he states that there was no direct evidence that SDM acted out because he did not
want to attend parenting time. He suggests that SDM might have been engaging in the disruptive
behavior for ulterior reasons or as a result of acts by the foster family. Respondent’s conjecture
does not establish that the trial court clearly erred in its findings.
There was evidence that SDM had begun to act out before and after visits with respondent.
Although there was evidence that SDM had uneventful visits with respondent and that respondent
was appropriate during parenting visits, there was also evidence that SDM had a strong reaction
because he feared respondent and did not want to visit with him. For example, SDM’s therapist,
Carmel McKentry, testified at the termination hearing that SDM was initially “ambivalent” about
having parenting time with respondent. However, she stated, over the past year or more, SDM
had consistently indicated to her “that he does not want to even have visits with dad. He does not
want to talk to dad. He does not want to have any sort of relationship from what he tells me.”
SDM also told her that he feared respondent as a result of actual aggressive behaviors that he
experienced or witnessed. And there was evidence that respondent twice used improper restraints
against SDM during parenting time, which affected SDM dramatically. Likewise, a foster-care
clinician, Brianna Bost, testified that SDM’s behaviors always worsened at about the time of visits
with respondent, and that SDM began to pull his own hair out to the point at which he had bald
spots. SDM told her as well that he did not want to even talk about respondent.
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This evidence—when considered in the context of other evidence—fully supported the trial
court’s finding that SDM had been acting out because he did not want to have visits with
respondent, and not because of something done by the foster family. The same evidence supported
the trial court’s finding that SDM did not have a healthy bond with respondent and preferred not
to be placed with him. Moreover, to the extent that there was a conflict in the evidence, this Court
defers to the trial court’s superior ability to resolve that conflict. See In re Miller, 433 Mich 331,
344; 445 NW2d 161 (1989); MCR 2.613(C); MCR 3.902(A). Accordingly, the trial court did not
clearly err when it made those findings and weighed them in favor of finding that termination of
respondent’s parental rights was in SDM’s best interests. See In re Gonzales/Martinez, 310 Mich
App at 430-431.
Respondent also argues that, even if the trial court did not clearly err by factoring SDM’s
preference into its best interests finding for SDM, it erred by considering SDM’s preference when
finding that termination was in the best interests of SKM. It is certainly true that the trial court
had the obligation to make individual findings concerning the best interests of SDM and SKM to
the extent that their best interests significantly differed. See In re White, 303 Mich App 701, 715-
716; 846 NW2d 61 (2014). However, the trial court repeatedly made separate findings about the
best-interest factors for each child throughout its oral opinion. There is no indication in the record
that the trial court improperly weighed SDM’s preference as a ground for finding that termination
was in SKM’s best interests. Respondent’s argument to the contrary is unsupported.
IV. REVOCATION OF PARENTAGE
A. STANDARD OF REVIEW
For his final argument, respondent maintains that the trial court improperly considered
respondent’s decision to revoke his paternity to his wife’s two youngest children when determining
whether to terminate his rights to his two biological children. This Court reviews de novo whether
the trial court properly interpreted and applied the relevant statutes. See In re Gonzales/Martinez,
310 Mich App at 431. This Court reviews the trial court’s factual findings underlying its
application of the law for clear error. Id. at 430.
B. ANALYSIS
With respect to respondent’s assertion that his decision to revoke his paternity to his former
wife’s two youngest children had no relevance to any issue of fact before the trial court, the record
shows that the trial court did not make improper inferences from respondent’s decision to revoke
his paternity. Instead, the trial court noted the evidence and drew reasonable inferences on matters
that were pertinent to the matter before it.
As background, the evidence showed that respondent’s former wife had her fifth child
while respondent was imprisoned. She also had her last child under circumstances that strongly
suggested that respondent was not the father. Because respondent was still married to her at the
time, he was the children’s legal father. After his release from prison, respondent and his wife
lived together and pursued a joint case service plan. Respondent served as the father figure for the
two youngest children during that time and participated in services related to them. Indeed, as the
trial court aptly noted, there was evidence that the two youngest children thought of respondent as
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their father and that some service providers were unaware that there was a paternity issue. But
respondent made it clear to the Department from the very inception of services that he only
intended to participate in the services on the assumption that he would remain with his wife, and
would discontinue them if he and his wife ceased to be together. And when he and his wife ceased
to be a couple, respondent revoked his paternity to the two youngest children.
The trial court noted respondent’s treatment of the two youngest children as his own
throughout the proceedings, but found that the evidence showed that respondent “slammed the
door” on his relationship with the two youngest children after he and his wife separated. The trial
court used this evidence to find that respondent lacked “insight” and showed that he had no
“empathy to how this child might be affected by his decision.” Notably, the trial court did not
punish respondent for revoking his paternity, and did not use that fact as grounds for termination.
Rather, the trial court simply drew inferences from his course of conduct involving the younger
children and made findings on the basis of those inferences.
The evidence that respondent revoked his paternity within a short time after the relationship
with his wife ended allowed at least the inference that respondent acted with disregard to the effect
that revocation would have on his relationship with the children and the trauma that would arise
from it. The trial court did not err.2
V. CONCLUSION
Affirmed.
/s/ Christopher M. Murray
/s/ Colleen A. O’Brien
/s/ James Robert Redford
2
Respondent maintains that the trial court in effect punished him for separating from his wife. It
is true that respondent had been warned that his relationship with his wife was unstable and might
jeopardize his ability to reunify with the children. However, respondent’s relationship with his
wife was a separate matter from his treatment of the children. Whether he continued to have a
relationship with his wife did not prevent respondent from acting with insight and empathy when
interacting with the two youngest children. And his separation from his wife did not require him
to revoke his paternity. He could have continued to work for reunification with them or could
have pursued a more empathetic path for introducing the change in their lives. The evidence
concerning respondent’s treatment of his legal children before he revoked his paternity was
evidence that implicated whether he had empathy for his biological children and could develop
insight into their needs. See In re Kellogg, 331 Mich App 249, 259; 952 NW2d 544 (2020).
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