in Re herrick/wozniak Minors ( 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UNPUBLISHED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 HERRICK/WOZNIAK, Minors. October 10, 2019
No. 347635
Ingham Circuit Court
Family Division
LC Nos. 17-001283-NA;
17-001284-NA;
17-001285-NA;
17-001286-NA;
17-001287-NA
In re WOZNIAK, Minors. No. 347661
Ingham Circuit Court
Family Division
LC Nos. 17-001285-NA;
17-001286-NA;
17-001287-NA
Before: MARKEY, P.J., and BORRELLO and BOONSTRA, JJ.
PER CURIAM.
In these consolidated appeals,1 respondents appeal by right the trial court’s order
terminating their parental rights to their minor children. In Docket No. 347635, respondent-
mother appeals the trial court’s termination of her parental rights to DJH, ALH, JLW, IW, and
AMW under MCL 712A.19b(3)(c)(i) (conditions leading to adjudication continue to exist), (g)
(failure to provide proper care and custody), and (j) (reasonable likelihood of harm if returned to
parent). In Docket No. 347661, respondent-father appeals the trial court’s termination of his
1
See In re Herrick/Wozniak Minors, unpublished order of the Court of Appeals, entered
February 28, 2019 (Docket Nos. 347635; 347661).
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parental rights to JLW, IW, and AMW also under MCL 712A.19b(3)(c)(i), (g), and (j).2 We
affirm.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
In September 2017, the Department of Health and Human Services (DHHS or petitioner)
filed a petition requesting the removal of all five children from respondent-father’s home.
Respondent-mother was identified as the mother of all five children, and respondent-father was
identified as the father of JLW, IW, and AMW.
The petition stated that all five children were in respondent-father’s care and custody
when respondent-father, having been on a two-day “meth binge,” assaulted and threatened his
live-in partner with a knife while the children were in the home, resulting in his arrest and
incarceration. The petition also stated that both respondents had a history of substantiated
Children’s Protective Services (CPS) cases for improper supervision, physical neglect, and
physical abuse. At the time the petition was filed, respondent-mother was homeless and unable
to provide care and custody for the children because of her lack of employment, lack of housing,
and refusal to participate in drug screens and to cooperate with CPS. The trial court authorized
the petition and removed the children, placing ALH with her paternal grandmother and placing
the remaining children in separate non-relative placements.3
At the adjudication bench trial, respondent-father entered a plea admitting to the domestic
violence incident that brought the children into care and to his substance-abuse issues.
Respondent-mother did not appear for the trial but was represented by counsel. Respondent-
mother was adjudicated, and the trial court concluded that her history of CPS cases and
substance-abuse issues was sufficient to warrant taking jurisdiction over the children. The trial
court took jurisdiction over the children and ordered DHHS to develop service plans for
respondents to address issues of substance abuse, domestic violence, and other barriers to
reunification.
Over the course of these proceedings, respondent-mother was arrested and pleaded guilty
to the delivery and manufacture of methamphetamine, and was incarcerated. She participated in
some services while in jail, including attending Narcotics Anonymous (NA) meetings, domestic
violence classes, and anger management classes. Respondent-mother was diverted from jail to
an inpatient substance-abuse treatment program, but was discharged from the program for
behavioral issues and non-compliance, and was returned to jail. She missed 24 random drug
2
The same order also terminated the parental rights of DJH’s and ALH’s respective fathers, who
were also respondents in the proceedings below; however, neither is a party to this appeal.
Accordingly, the term “respondent-father” as used in this opinion refers only to the appellant in
Docket No. 347661. Further, we use the term “respondents” to refer jointly to respondent-
mother and respondent-father only, not to refer to all respondents in the proceedings below.
3
JLW, IW, and AMW were placed in non-relative foster homes, while DJH was placed in a
residential treatment facility due to significant emotional and behavioral issues.
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screens during the course of the proceedings, and tested positive for controlled substances,
including methamphetamine, four times. Respondent-mother completed a psychological
evaluation but failed to follow through with referrals for counseling. Respondent-mother did not
attend the majority of her scheduled parenting-time visits during the time she was not
incarcerated, and failed to complete parenting classes. At the time of the termination hearing,
respondent-mother had completed only 30 days of inpatient substance-abuse treatment, still
lacked employment and housing, had not participated in parenting time in over five months, and
had not complied with many of the requirements of her case service plan.
Respondent-father was also incarcerated on multiple occasions during the proceedings
below. Despite efforts by DHHS workers to schedule several appointments for respondent-
father’s court-ordered services, he consistently failed to attend them or to keep in contact with
his caseworker. Respondent-father missed over 100 scheduled drug screens and tested positive
for methamphetamines or marijuana several times. He never completed a substance abuse
evaluation or psychological evaluation. He had missed 19 of his scheduled parenting time visits,
and had failed to complete parenting classes. Respondent-father had no contact with DHHS after
May 2018.
Both respondents failed to obtain suitable housing for the children despite referrals for
various services. Neither respondent ever reported any employment.
In November 2018, DHHS filed a supplemental petition seeking termination of
respondents’ parental rights, noting respondents’ incarceration, substance abuse, and lack of
progress on their case service plans. In December 2018, the children’s lawyer-guardian ad litem
(LGAL) moved the trial court to suspend respondents’ parenting time, which the trial court
granted. In January 2019, after a termination hearing, the trial court terminated respondents’
parental rights.
These appeals followed.
II. STATUTORY GROUNDS
A. STANDARD OF REVIEW
“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). We review for clear
error the trial court’s factual findings and findings that a ground for termination has been
established. MCR 3.977(K); In re White, 303 Mich. App. 701, 709; 846 NW2d 61 (2014). “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).
We review for clear error whether petitioner made reasonable efforts to preserve and
reunify the family. See In re Fried, 266 Mich. App. 535, 542-543; 702 NW2d 192 (2005).
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B. ANALYSIS
The trial court terminated each respondent’s parental rights under
MCL 712A.19b(3)(c)(i), (g), and (j), which provide 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:
* * *
(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 . . . 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.
* * *
(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.
If we conclude that the trial court did not clearly err by finding one statutory ground for
termination of a respondent’s parental rights, we do not need to address the additional grounds.
In re HRC, 286 Mich. App. 444, 461; 781 NW2d 105 (2009).
1. RESPONDENT-MOTHER (DOCKET NO. 347635)
Respondent-mother argues that the trial court erred by determining that a statutory
grounds for termination of her parental rights was proven by clear and convincing evidence. We
disagree.
The trial court did not clearly err by finding that termination of respondent-mother’s
parental rights to the minor children was proper under MCL 712A.19b(3)(c)(i). Termination of
parental rights is proper under MCL 712A.19b(3)(c)(i) when “the totality of the evidence amply
supports that [the parent] had not accomplished any meaningful change in the conditions” that
led to the court taking jurisdiction over the minor, In re Williams, 286 Mich. App. 253, 272; 779
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NW2d 286 (2009), and “there is no reasonable likelihood that the conditions will be rectified
within a reasonable time considering the child’s age,” MCL 712A.19b(3)(c)(i).
The initial dispositional hearing following respondent-mother’s adjudication was held on
November 22, 2017, and the initial dispositional order was entered on the same day. The
termination hearing was held on January 9, 2019, thereby satisfying the requirement that 182 or
more days elapsed since the issuance of the initial dispositional order. MCL 712A.19b(3)(c).
Respondent-mother’s barriers to reunification were identified in her case service plan as
“Substance Abuse,” “Housing,” “Child Characteristics,” “Emotional Stability Behavior,”
“Parenting Skills,” “Social Support System,” “Communication/Interpersonal Skills,” “Resource
Availability/Management,” and “Employment.” The plan required respondent-mother to
participate in random drug testing twice a week, to participate in a substance-abuse evaluation
and follow all recommendations, and to inform the caseworker of any medication changes.
Additionally, respondent-mother was required to attend NA or Alcoholic Anonymous (AA)
meetings and to develop positive relationships with appropriate support people. She was also
required to apply for, obtain, and maintain suitable housing for herself and the children, as well
as to seek and obtain employment. Further, she was required to attend and benefit from
parenting classes, to consistently attend parenting-time visits, and to participate in individual
counseling.
The record reveals that respondent-mother failed to make any significant progress on her
case service plan, and failed to address the issues that led to adjudication. But respondent-
mother argues that by the time of the termination hearing she had addressed the issues that led to
adjudication, noting that she had begun cooperating with DHHS and had begun attending various
classes, including NA or AA meetings, domestic violence classes, anger management classes,
and Bible studies. Respondent-mother also argues that she was participating in drug screens and
substance-abuse treatment, and that she would be employed but for her court-ordered inpatient
substance-abuse treatment. We find these arguments to be without merit.
At the termination hearing, respondent-mother’s caseworker reported that before her
incarceration respondent-mother was inconsistent with services, missed the majority of her
scheduled drug screens, and had multiple positive drug screens for methamphetamine.
Respondent-mother was incarcerated in January 2018 on charges of the delivery or manufacture
of methamphetamine, and was subsequently sentenced to 365 days in jail and inpatient
substance-abuse treatment. The caseworker recognized that respondent-mother participated in
some services while incarcerated; however, she noted that respondent-mother’s first attempt at
treatment in June of 2018 was unsuccessful, and that respondent-mother was required to serve
the rest of her sentence in jail before beginning a different substance-abuse program in December
2018. Further, the caseworker indicated that although respondent-mother completed her
psychological evaluation, she did not follow the evaluator’s recommendations for “behavioral
therapy and psychopharmacological evaluation.”
Additionally, despite being provided information about housing assistance and low-
income housing, respondent-mother never followed through to seek housing. Further, while she
was referred to parenting classes, respondent-mother never attended them. Moreover,
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respondent-mother failed to consistently attend visitations, and at the time of the termination
hearing, she had not visited the children since July 2018.
Respondent-mother also argues that the trial court should have given her more time to
complete her service plan, stating that the children were in foster care for less than two years,
and that the children could have “easily” been returned to her care within six months of her
completion of the inpatient treatment program. We disagree. As noted by the LGAL and the
trial court, respondent-mother had developed a cycle or pattern involving substance abuse,
incarceration, and CPS involvement; she had a history of complying with services only long
enough to have the children returned to her care, at which point the cycle would begin anew.
Additionally, the trial court noted that after 13 months, respondent-mother had only achieved 30
days in an inpatient treatment facility and had already been unsuccessful in a prior attempt.
In sum, although respondent-mother did minimally participate in some services, she had
failed in more than 13 months since the children’s removal to accomplish any meaningful change
in the conditions that led to the court taking jurisdiction. Williams, 286 Mich. App. at 272. Given
these circumstances, the trial court did not err by determining that there was no reasonable
likelihood that the conditions would be rectified within a reasonable time considering the
children’s ages. MCL 712A.19b(3)(c)(i). Because the trial court did not clearly err by finding
that this ground for termination had been proven by clear and convincing evidence, we need not
address its findings regarding other grounds for termination. HRC, 286 Mich. App. at 461.
2. RESPONDENT-FATHER (DOCKET NO. 347661)
Respondent-father does not challenge the trial court’s findings concerning specific
grounds for termination, but argues that the trial court erred by finding that DHHS had made
reasonable efforts at reunification and therefore by terminating his parental rights. We disagree.
DHHS has an affirmative duty to make reasonable efforts to reunify a family before
seeking termination of parental rights. MCL 712A.18f(3)(b) and (c); MCL 712A.19a(2). Our
Supreme Court has explained that “ ‘[r]easonable efforts to reunify the child and the family must
be made in all cases’ except those involving aggravated circumstances . . . .” In re Mason, 486
Mich. 142, 152; 782 NW2d 747 (2010), quoting MCL 712A.19a(2). Reasonable efforts begin
with the creation of a case services plan aimed at rectifying the conditions that caused the child’s
removal. Fried, 266 Mich. App. at 542; see also MCL 712A.18f(3)(d) (stating that the service
plan shall include a “[s]chedule of services to be provided to the parent . . . to facilitate the
child’s return to his or her home”). Thereafter, “[w]hile [DHHS] has a responsibility to expend
reasonable efforts to provide services to secure reunification, there exists a commensurate
responsibility on the part of the respondent[] to participate in the services that are offered” and to
“demonstrate that [he or she] sufficiently benefited from the services provided.” Frey, 297 Mich
App at 248. To successfully claim a lack of reasonable efforts, a respondent must establish that
he or she would have fared better if the petitioner offered other services. Fried, 266 Mich. App. at
543.
Respondent-father argues that DHHS did not make reasonable efforts to reunify him with
the children because caseworkers only met with him once while he was incarcerated and did not
know his whereabouts during much of the case. He further blames his inability to contact his
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caseworkers on being incarcerated. Accordingly, he argues that he should have been given
additional time upon his release to avail himself of services.
Respondent-father fails to explain why his repeated incarcerations and failure to
communicate with his caseworkers constitutes a failure to provide reasonable reunification
efforts. Moreover, he fails to address the fact that he did not communicate or participate in
services even during those times that he was not incarcerated. As noted above, “[w]hile [DHHS]
has a responsibility to expend reasonable efforts to provide services to secure reunification, there
exists a commensurate responsibility on the part of the respondent[] to participate in the services
that are offered” and “demonstrate that [he or she] sufficiently benefited from the services
provided.” Frey, 297 Mich. App. at 248. Respondent-father also fails to cite any supporting
authority for the proposition that the caseworker’s inability to locate him should be considered a
failure to provide reasonable reunification efforts.
Respondent-father has also failed to establish that he would have fared better if DHHS
had offered other services. Fried, 266 Mich. App. at 543. The record shows that respondent-
father failed to participate in services even when he was not incarcerated. At the termination
hearing, respondent-father acknowledged that he was visited by members of DHHS on at least
two occasions and was aware that he could have contacted DHHS to inform them of his repeated
incarcerations. Further, respondent-father admitted that he continued to use controlled
substances during these proceedings. The record clearly establishes that DHHS continued to
offer services and respondent-father failed to avail himself of those services. Accordingly, the
trial court did not err by concluding that DHHS made reasonable efforts to preserve and reunify
the family. Id. at 542-543.
Because DHHS made reasonable efforts at reunification and respondent-father does not
otherwise challenge the trial court’s finding that statutory grounds for termination were proven,
we affirm the trial court’s finding. See In re JS & SM, 231 Mich. App. 92, 98-99; 585 NW2d 326
(1999), overruled in part on other grounds by In re Trejo, 462 Mich. 341, 353; 612 NW2d 407
(2000).
III. BEST-INTEREST DETERMINATION
Both respondents also challenge the trial court’s finding that termination was in the
children’s best interests. We disagree.
A. STANDARD OF REVIEW
We review for clear error the trial court’s best-interest determination. In re Olive/Metts,
297 Mich. App. 35, 40; 823 NW2d 144 (2012). “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.” BZ, 264 Mich. App. at
296-297.
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B. ANALYSIS
“Once a statutory ground for termination has been proven, the trial court must find that
termination is in the child’s best interests before it can terminate parental rights.” Olive/Metts,
297 Mich. App. at 40. When considering best interests, the focus is on the child, not the parent.
In re Moss, 301 Mich. App. 76, 87; 836 NW2d 182 (2013). “[W]hether termination of parental
rights is in the best interests of the child must be proved by a preponderance of the evidence.”
Id. at 90.
“The trial court should weigh all the evidence available to determine the children’s best
interests.” White, 303 Mich. App. at 713. The trial court may consider such factors as “the
child’s bond to the parent, the parent’s parenting ability, [and] the child’s need for permanency,
stability, and finality . . . .” Olive/Metts, 297 Mich. App. at 41-42 (citations omitted). Other
factors that the trial court may consider include the advantages of a foster home over the parent’s
home, the parent’s compliance with the service plan, the parent’s visitation history, the child’s
well-being in the foster home, and the possibility of adoption. White, 303 Mich. App. at 713-714.
1. RESPONDENT-MOTHER (DOCKET NO. 347635)
Respondent-mother argues that the trial court erred by determining that termination of her
parental rights was in the children’s best interests because the trial court failed to consider her
bond with the children. We disagree.
The parent-child bond is only one factor for the trial court to consider in making its best-
interest determination. See Olive/Metts, 297 Mich. App. at 41. Further, respondent-mother’s
caseworker testified that respondent-mother’s inconsistency in parenting-time visits and lack of
commitment to services had caused severe strain to the parent-child bond, and that there had
been minimal contact with the children and minimal progress made since the children’s removal
in September 2017. The caseworker described the parenting-time visits respondent-mother did
attend as “chaotic.” The caseworker further testified that the children were “in desperate need of
permanency” and were finally getting caught up in school and having their needs met at their
placements. While the caseworker recognized that respondent-mother’s parenting-time visits
had improved during her first attempt at inpatient substance-abuse treatment, she noted that the
children’s mental health deteriorated when respondent-mother returned to jail. Further, although
respondent-mother argues that her parenting skills had improved over time, at the time of the
termination hearing, respondent-mother had not seen the children in over five months. And
although respondent-mother argues that she would be able to parent her children after
successfully completing her current inpatient substance-abuse program, the trial court was not
required to agree with her speculation, especially in light of her long history of substance abuse
and relapse.
Respondent-mother also argues that the children would have permanence if returned to
her rather than staying in foster care, noting that they had been in multiple placements and were
not placed together. We do not dispute that the children do not live together currently.
However, we fail to see how the pattern of substance abuse, instability, violence and neglect that
the children experienced before their removal represented permanence. The trial court noted
numerous instances in the past where the children were placed under the court’s jurisdiction,
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placed with family members, or removed. Additionally, the record shows that the children’s
caretakers ensured that the children were able to have monthly visits. The trial court can
consider the advantages of a foster home over the parent’s home, the child’s well-being in the
foster home, and the possibility of adoption. White, 303 Mich. App. at 713-714. In this case, it is
clear that the foster homes could provide the children with a stable home, something that
respondent-mother could not provide. Further, the trial court appropriately considered that the
foster parents of JLW, IW, and AMW were willing to adopt the children placed with them. We
conclude that the trial court did not clearly err by determining that termination of respondent-
mother’s parental rights was in the children’s best interests.4 Olive/Metts, 297 Mich. App. at 40.
2. RESPONDENT-FATHER (DOCKET NO. 347661)
Respondent-father argues that the trial court erred by concluding that termination of his
parental rights to JLW, IW, and AMW was in their best interests because he was bonded with the
children and they were happy to see him at parenting-time visits. He also repeats his argument
that he should have been given more time after his incarceration to benefit from services. We
disagree.
As stated previously, the parent-child bond is only one factor for the trial court to
consider. See Olive/Metts, 297 Mich. App. at 41. Respondent-father’s parenting-time attendance
was sporadic; he missed 19 of his scheduled parenting-time visits before his parenting time was
suspended because of inconsistency and the children’s deteriorating mental health. Respondent-
father failed to comply with his case service plan in any meaningful way, whether he was
incarcerated or not. Despite a lengthy history of CPS involvement and several opportunities to
remedy his issues, respondent-father failed to demonstrate a benefit from the services provided;
in fact, the children came into care after respondent-father assaulted and threatened his live-in
partner with a knife while the children were in the house. Meanwhile, the children were doing
well in their pre-adoptive foster homes, where they had the opportunity to achieve permanency
4
Respondent-mother also presents the cursory argument that her due-process rights were
violated when DHHS created the conditions requiring her absence from the children’s lives by
requiring her to attend inpatient substance-abuse treatment and then sought to terminate her
parental rights while she was in treatment. Respondent-mother failed to present this issue in her
statement of questions presented. We are not required to address any issues not raised in the
statement of questions presented. Caldwell v Chapman, 240 Mich. App. 124, 132; 610 NW2d 264
(2000); MCR 7.212(C)(5). Further, respondent-mother also fails to support her assertion with
any meaningful argument or explanation regarding how DHHS violated her due-process rights.
This Court is not required to unravel and elaborate on respondent’s arguments. People v
Cameron, 319 Mich App, 215, 232; 900 NW2d 658 (2017). Nonetheless, the record is clear that
it was respondent’s criminal actions that resulted in her court-ordered inpatient substance-abuse
treatment and absence from parenting-time visits, and that respondent received proper notice and
opportunity to be heard before these consequences were imposed. See Bonner v City of
Brighton, 495 Mich. 209, 235; 848 NW2d 380 (2014). Accordingly, we conclude that
respondent-mother’s argument is without merit.
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and stability. We conclude that the trial court did not clearly err by finding that termination of
respondent-father’s parental rights to JLW, IW, and AMW was in the children’s best interests.
Id. at 40.
Affirmed.
/s/ Jane E. Markey
/s/ Stephen L. Borrello
/s/ Mark T. Boonstra
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