in Re M Skaggs 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UNPUBLISHED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 M. SKAGGS, Minor. October 22, 2019
Nos. 347450; 347451
Gladwin Circuit Court
Family Division
LC No. 18-000014-NA
Before: STEPHENS, P.J., and SERVITTO and RONAYNE KRAUSE, JJ.
PER CURIAM.
Respondent-mother and respondent-father appeal as of right an order terminating their
parental rights to a minor child, MS, under MCL 712A.19b(3)(c)(i) (failure to rectify the
conditions leading to adjudication), (g) (failure to provide proper care or custody), and (j)
(reasonable likelihood of harm to the child if returned to the parent). We affirm.
I. BACKGROUND
Child-protective proceedings were previously initiated against respondents in connection
with another child, AS. After roughly a year of services, they voluntarily released their parental
rights to AS. Shortly thereafter, MS was born. Petitioner, the Department of Health and Human
Services (DHHS) removed MS from respondents’ care a day after MS’s birth. Petitioner cited,
among other concerns, respondents’ history with AS, marijuana use by respondent-mother
during her pregnancy, and unsafe home conditions. Respondents were once again offered
services for nearly a year, but did not adequately comply with their case-service plan or show
benefit from services. Therefore, the trial court terminated their parental rights to MS.
II. STANDARD OF REVIEW
To terminate parental rights, the trial court must initially find, by clear and convincing
evidence, a statutory ground for termination, MCL 712A.19b(3), and this Court reviews for clear
error the trial court’s factual findings and its ultimate determination that a statutory ground has
been established. In re Mason, 486 Mich. 142, 152; 782 NW2d 747 (2010). A finding is clearly
erroneous if, even if some evidence supports it, the reviewing court is nevertheless left with the
firm and definite conviction that the lower court made a mistake. Id. We also review for clear
error a trial court’s decision regarding the child’s best interests. In re Olive/Metts, 297 Mich App
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35, 40; 823 NW2d 144 (2012). We review unpreserved issues for plain error affecting
substantial rights, meaning an error must be plain and affect the outcome of the proceedings. In
re Utrera, 281 Mich. App. 1, 8; 761 NW2d 253 (2008). A trial court’s evidentiary decisions are
reviewed for an abuse of discretion. Id. at 15.
III. GROUNDS FOR TERMINATION
MCL 712A.19b(3) states, in relevant part:
The court may terminate a parent’s parental rights to a child if the court
finds, by clear and convincing evidence, 1 or more of the following:
***
(c) The parent was a respondent in a proceeding brought under this
chapter, 182 or more days have elapsed since the issuance of an initial
dispositional order, and the court, by clear and convincing evidence, finds . . . 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.
***
(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.
The conditions leading to adjudication, based on respondents’ pleas to certain allegations
in the amended petition for jurisdiction, consisted of marijuana abuse and unsafe housing. At the
termination hearing, the foster-care worker, CS, reported that respondents had not completed any
of their required counseling or drug-treatment programs and had consistently tested positive for
marijuana. CS also reported that the conditions in respondents’ home, when she visited it
approximately three weeks before the hearing, were not appropriate for a child of MS’s age
because many small items, human food, animal food, and animal feces were on a dirty floor.
Also, in respondents’ room there was half of a smoked marijuana cigarette and “a couple
bongs[.]” In light of this evidence, the trial court did not clearly err by finding that the
conditions leading to adjudication continued to exist. MCL 712A.19b(3)(c)(i). The court
rejected the defendants’ explanation that a weekend house-sitter had caused the dirtiness in the
house that was shown in photographs.1 This Court “defer[s] to the special ability of the trial
1
The court reviewed the photographs and aptly described the house as “deplorable” and “very,
very dirty.”
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court to judge the credibility of witnesses.” In re White, 303 Mich. App. 701, 711; 846 NW2d 61
(2014).
Respondent-mother implies that the pertinent conditions could have been “rectified
within a reasonable time considering the child’s age” and that the trial court therefore should not
have terminated respondents’ parental rights under subparagraph (c)(i). However, not only had
respondents been offered services for almost a year in conjunction with MS’s case, but they had
also been offered services in connection with AS’s case and showed little or no benefit from
those services. After two years of services, respondents had still not achieved substantial and
consistent change. On the basis of respondents’ clear pattern of behavior, it was reasonable for
the trial court to conclude that the pertinent conditions would not be rectified within a reasonable
time considering MS’s age.
The trial court also did not clearly err by finding that the ground for termination in
subdivision (j) was established by clear and convincing evidence. Indeed, respondents’ housing
was unsafe, respondent-father2 admitted to using marijuana “a lot more than . . . [he] should.”
Because respondent-father had a medical marijuana card, the trial court properly relied on the
use of marijuana only to describe the conditions of the house and how the manner of respondent-
father’s use contributed to rendering the house unsuitable for a child. Respondent-father also
admitted to having anger-management problems. Respondents did not complete any substance-
abuse or counseling services, and their income was unverifiable and came solely from a variety
of odd jobs. This evidence established a likelihood of harm to MS if he were to be returned to
respondents’ care. MCL 712A.19b(3)(j).3
IV. BEST INTERESTS
“If a trial court finds that a statutory basis for terminating parental rights exists by clear
and convincing evidence, it is required to terminate parental rights if it finds from a
preponderance of evidence on the whole record that termination is in the [child’s] best interests.”
In re Brown/Kindle/Muhammad, 305 Mich. App. 623, 637; 853 NW2d 459 (2014) (quotation
marks and citation omitted); see also MCL 712A.19b(5).
To determine whether termination of parental rights is in a child’s best
interests, the court should consider a wide variety of factors that may include the
child’s bond to the parent, the parent’s parenting ability, the child’s need for
permanency, stability, and finality, and the advantages of a foster home over the
parent’s home. The trial court may also consider . . . the parent’s compliance with
his or her case service plan, the parent’s visitation history with the child, the
2
Respondent-father and respondent-mother were a committed couple. As such, if the child was
returned to either respondent, the other respondent would be part of the household.
3
Because petitioner established the grounds for termination in MCL 712A.19b(3)(c)(i) and (j),
we decline to consider subdivision (g). See In re Ellis, 294 Mich. App. 30, 32; 817 NW2d 111
(2011) (only one statutory ground is needed for termination of parental rights).
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children’s well-being while in care, and the possibility of adoption. [In re White,
303 Mich. App. at 713-714 (quotation marks and citations omitted).]
Respondents did not demonstrate an ability to properly care for MS and did not comply with
their case-service plan, MS was doing well in foster care, and MS’s foster parents were willing to
adopt him. Therefore, the trial court did not clearly err by finding that it was in MS’s best
interests to terminate respondents’ parental rights.
V. OTHER ISSUES
Respondent-father contends that the trial court considered the issue of potential adoption
too soon in the proceedings. At the termination hearing, petitioner’s attorney asked CS whether
MS was bonded to the foster parents and whether they were willing to adopt him. Respondent-
father’s attorney objected, stating, “I’m not sure why that would be relevant to anything[.]” The
court overruled the objection, stating, “It goes as to best interest.” Because the hearing was a
combined hearing for statutory grounds and best interests, the trial court did not abuse its
discretion by allowing the testimony about adoption.
Respondent-father contends that petitioner’s efforts at reunification were insufficient.
However, CS testified that respondents were offered help with “counseling, substance abuse, . . .
housing, employment, [and] income.” Respondent-father’s attorney asked CS what she had done
to “redouble [her] efforts” to get respondents to become better parents, in light of their lack of
education. CS replied that she contacted respondents regularly and
[h]ad conversations with them about what they needed to do. Had conversations
about, if they had done what we had talked about. Reminded them of doing it.
Provided them contact information again, for service providers. Reminded them
to contact . . . Infant Mental Health . . . To try to assist them in moving forward.
CS also said that she “advise[d respondents] that any time that they needed additional bus passes
to let me know so that I could provide them and have them available[.]”
Accordingly, the record shows that DHHS did make reasonable efforts at family
reunification. Respondent-father argues that respondents should have been offered more visits
with MS. This argument is disingenuous, however, because CS testified that visits were offered
“a couple times per week” for “an hour to hour and a half” and that respondents had recently
missed eight visits. She testified that visitation during the “last reporting period” had been
“pretty inconsistent” in general. Respondent-father cannot believably argue that additional visits
should have been offered when he missed so many of the visits that were offered.4 Respondent-
father also states that DHHS should have provided a car seat for MS to be transported home from
the hospital instead of faulting respondents for not having a car seat, but (1) he provides no
4
During the termination hearing, respondent-father argued that respondents should have been
allowed “home visits” with MS, but it was never demonstrated that the home was safe for such
“home visits.”
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authority for the assertion that DHHS must provide needed infant supplies for new parents, see
People v Waclawski, 286 Mich. App. 634, 679; 780 NW2d 321 (2009) (discussing an appellant’s
burden); and (2) the lack of a car seat was only one small aspect of the failure to provide
adequate care. Respondent-father does not delineate any other steps that should have been taken
by DHHS. An appellant may not leave it up to this Court to “discover and rationalize the basis
for his claims[.]” Id. (quotation marks and citation omitted). In addition, respondent-father’s
disruptive behavior in the DHHS office was responsible for the termination of certain services
that might have aided him. This issue is unpreserved, and respondent-father has not shown plain
error affecting his substantial rights. In re Utrera, 281 Mich. App. at 8.
Affirmed.
/s/ Cynthia Diane Stephens
/s/ Deborah A. Servitto
/s/ Amy Ronayne Krause
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