in Re Stanek 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UNPUBLISHED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 STANEK, Minor. October 1, 2019
No. 347595
Macomb Circuit Court
Family Division
LC No. 2017-000427-NA
Before: JANSEN, P.J., and CAMERON and TUKEL, JJ.
PER CURIAM.
In this termination of parental rights case, respondent-father appeals as of right the trial
court’s order terminating his parental rights to the minor child, MS, pursuant to MCL
712A.19b(3)(g) (failure to provide proper care and custody) and (j) (reasonable likelihood that
child will be harmed if returned to parent). For the reasons provided below, we affirm.
I. BASIC FACTS
This case arose after a complaint was received by Child Protective Services (“CPS”)
regarding the welfare of MS because she had tested positive for opiates and marijuana when she
was born. MS’s mother admitted to using Xanax and marijuana while pregnant. A petition for
temporary custody of MS was authorized, and MS was placed in foster care with her maternal
aunt and uncle. After signing an affidavit of parentage, respondent entered into a parent-agency
agreement (“PAA”) in February 2018. Over the course of approximately one year, respondent
failed to adhere to the PAA, and was repeatedly incarcerated, primarily for probation violations.
In November 2018, the Department of Health and Human Services (“DHHS”) filed a
supplemental petition for permanent custody of MS. It was alleged that respondent failed to
attend parenting classes, random drug screenings, or individual counseling; failed to complete a
psychological evaluation; and did not consistently attend parenting time with MS in the previous
reporting period. The supplemental petition also alleged that respondent was recently arrested
and incarcerated. DHHS stated that respondent was “subject to a Parent Agency Agreement for
more than 182 days and [had] not demonstrated a benefit to any services provided,” and asserted
that respondent would not be able to establish a safe and stable home environment for MS in a
reasonable amount of time. The trial court found that statutory grounds for termination under
-1-
MCL 712A.19b(3)(g) and (j) had been proven by clear and convincing evidence and that
termination was in the best interests of the child.
II. ANALYSIS
“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. 120, 139; 809 NW2d 412 (2011). And once a statutory
ground for termination of parental rights has been established, the trial court must order the
termination of parental rights if the trial court finds by a preponderance of the evidence that
termination of parental rights is in the children’s best interests. MCL 712A.19b(5); In re Moss,
301 Mich. App. 76, 90; 836 NW2d 182 (2013).
A. ADEQUATE REUNIFICATION SERVICES
Respondent first argues that reversal is required because he was not provided with
adequate reunification services. However, respondent did not raise any objections or otherwise
indicate to the trial court that the services provided to him were inadequate; accordingly, the
issue is not preserved, see In re Frey, 297 Mich. App. 242, 247; 824 NW2d 569 (2012), and our
review is for plain error affecting substantial rights, In re Utrera, 281 Mich. App. 1, 8; 761 NW2d
253 (2008).
“Generally, when a child is removed from the parents’ custody, the DHHS is required to
make reasonable efforts to rectify the conditions that caused the child’s removal by adopting a
service plan.” In re HRC, 286 Mich. App. 444, 462; 781 NW2d 105 (2009). “While the DH[H]S
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, she must benefit from them.” In re TK, 306 Mich. App. 698, 711; 859
NW2d 208 (2014).
Upon review of the record, there is no indication that respondent’s incarceration
prevented him from access to adequate reunification services. Rather, the record shows that
respondent was not incarcerated for a five-month period that lasted from June 14, 2018, to
November 13, 2018. Thus, respondent was in jail for approximately six months during the child
protective proceedings. There is no evidence that services were not provided to respondent
while he was in jail, and it is unclear whether respondent was unable to access the services that
he was required to utilize in accordance with the PAA while he was in jail, or whether he merely
failed to seek them out and participate in them.
There is no dispute that DHHS made every attempt to provide him with services when he
was not in jail. The fact that respondent was repeatedly incarcerated because of his failure to
follow probation guidelines is not DHHS’s fault and was not a result of DHHS’s failure to
provide him with services. Moreover, even if DHHS plainly erred by failing to provide services
to respondent while he was in jail, the record clearly indicates that respondent exhibited a lack of
engagement in services during the five-month period during which he was not incarcerated.
Thus, there is nothing to suggest that if respondent had been provided other services while in
-2-
prison that he would have availed himself of them and benefited from them. He therefore cannot
show the requisite prejudice due to any lack of services which might have existed while he was
in prison.
B. STATUTORY GROUNDS FOR TERMINATION
Respondent next argues that the trial court erred by terminating his parental rights under
MCL 712A.19b(3)(g) and (j). We disagree. This Court reviews for clear error a trial court’s
factual determination that statutory grounds exist for termination. In re VanDalen, 293 Mich
App at 139. “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).
The trial court first found that termination of respondent’s parental rights to the minor
children was proper under MCL 712A.19b(3)(g), which states in relevant part:
(3) 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:
* * *
(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.[1]
There was clear and convincing evidence to support termination of respondent’s parental
rights under MCL 712A.19b(3)(g). Respondent was frequently in and out of jail, had persistent
substance abuse issues, and failed to provide proof that he had the means to provide proper care
or custody of MS. When the statutory bases and best-interest hearing took place, respondent was
in jail for a probation violation, and it was unclear when he would be released. Further, although
respondent contends that he was employed before his parental rights were terminated, he never
provided proof that he had been employed, and the record indicates that respondent failed to find
gainful employment. Respondent also contends that he provided proof of housing and that he
planned to live with MS at his mother’s house. However, at the time of the statutory bases and
1
MCL 712A.19b(3)(g) has been amended, effective June 12, 2018. See 2018 PA 58. Under the
previous version of the statute, a court could terminate parental rights if “[t]he parent, without
regard to intent, fails to provide proper care or custody for the child . . . .” In re White, 303 Mich
App 701, 710; 846 NW2d 61 (2014). MS was brought into petitioner’s temporary custody
before the new version of MCL 712A.19b(3)(g) was enacted, but the trial court relied on the
newly amended version of the statute when determining whether statutory grounds existed to
support the termination of respondent’s parental rights.
-3-
best-interest hearing, respondent provided no proof that his mother was willing to allow
respondent and MS to live with her, or that a recent home visit had been performed to determine
whether the home was suitable for children.
Additionally, it must be noted that MS came into petitioner’s custody because she tested
positive for opiates and marijuana at birth. Although respondent was not responsible for the fact
that MS had drugs in her system at birth, he nonetheless was required by the PAA to manage his
own substance abuse issues. Specifically, the PAA required respondent to participate in
substance abuse treatment and appear for random drug screenings. However, respondent never
participated in substance abuse treatment and only appeared for two random drug screenings
between the entry of the dispositional order on February 28, 2018, and the date of the statutory
bases and best-interest hearing, which took place on January 10, 2019. At each of the drug
screenings, respondent tested positive for drugs. On the first occasion, respondent tested positive
for cocaine, and on the second occasion, he tested positive for cocaine and fentanyl. Overall,
nothing in the record indicates that respondent will be able to provide proper care and custody of
MS in a reasonable amount of time, and MS should not be required to wait until respondent
becomes a stable and responsible parent. See In re Terry, 240 Mich. App. 14, 23; 610 NW2d 563
(2000) (holding that delaying termination of the respondent’s parental rights to allow the
respondent more time to learn basic parenting skills would be detrimental to the children). Based
on these facts, we conclude that the trial court did not clearly err when it found that a statutory
ground existed to terminate respondent’s parental rights pursuant to MCL 712A.19b(3)(g).2
C. BEST INTERESTS
Respondent next argues that the trial court clearly erred in finding that termination of his
parental rights was in the children’s best interests. We disagree. “We review for clear error the
trial court’s determinations regarding the children’s best interests.” In re White, 303 Mich. App.
701, 713; 846 NW2d 61 (2014).
“ ‘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, 297 Mich. App. 35, 42; 823 NW2d 144 (2012), quoting MCL
712A.19b(5). The determination of a child’s best interests is made on the basis of the
preponderance of the evidence standard. In re Moss, 301 Mich. App. at 89.
“To determine whether termination of parental rights is in a child’s best interests, the
court should consider a wide variety of factors . . . .” In re White, 303 Mich. App. at 713. Such
factors can include whether the children were doing well in placement outside of respondent’s
2
Because we have concluded that at least one statutory ground has been proven by clear and
convincing evidence, we need not consider whether the other statutory ground relied on by the
trial court, MCL 712A.19b(3)(j), also has been proven by clear and convincing evidence. See In
re Foster, 285 Mich. App. 630, 633; 776 NW2d 415 (2009).
-4-
home, id. at 714, and how a child’s current home compares with the parent’s home, In re
Olive/Metts, 297 Mich. App. at 41-42. While MS’s placement was with relatives, the court found
nevertheless that termination was in the best interests of the child. The record shows that MS
had thrived in the placement with her maternal aunt and uncle since she began residing with
them. The trial court found that the home provides the child with safety and stability, and that
she receives “great care.” The court also noted that there is no bond between the child and
respondent, but that one does exist with the maternal aunt and uncle and that they are essentially
the only parents she has ever known. Respondent’s visitations have been minimal, making him,
for all intents and purposes, uninvolved in MS’s life. Thus, these factors weighed in favor of
termination being in the child’s best interests.
The court may also consider the length of time the children were in care, compliance with
the DHHS case service plan, and the likelihood that the children could be returned to the parent’s
home within the foreseeable future. In re Payne/Pumphrey/Fortson, 311 Mich. App. 49, 64; 874
NW2d 205 (2015), citing In re Frey, 297 Mich. App. at 248-249. A court may also consider a
parent’s parenting skills, and the children’s need for permanency, stability, and finality. In re
Olive/Metts, 297 Mich. App. at 41-42. At the time of the termination hearing, MS had spent
nearly her entire life in foster care. During the pendency of this case, respondent was in and out
of jail, tested positive for drugs on more than one occasion, and made no effort to adhere to the
PAA, whether in or out of jail. Moreover, respondent never contended, until this appeal, that he
did not receive adequate services while in jail, and never requested parenting time while in jail.
Respondent did not make the effort to convince the trial court that he could provide stability,
safety, and permanence to MS and while in jail never requested parenting time or notified the
court of the alleged lack of services. Respondent never provided proof of employment, and the
only family and housing support respondent had was from his mother, who he planned to live
with after being released from jail, yet he provided no proof his mother was willing to house
him. Respondent’s mother had little contact with MS. MS’s foster care worker testified that
respondent’s mother “went to one [parenting time] visit and then no longer contacted about
visits.” Respondent’s mother made no further effort to have contact with respondent or MS. The
court addressed the child’s need for permanency, finality, and stability following a life in
placement and noted that the maternal aunt and uncle wanted to adopt her. Based on a review of
the entire record in this case, we cannot conclude that the trial court clearly erred in finding by a
preponderance of the evidence that termination of respondent’s parental rights was in the child’s
best interests.
Affirmed.
/s/ Kathleen Jansen
/s/ Thomas C. Cameron
/s/ Jonathan Tukel
-5-