in Re N I Murphy 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UNPUBLISHED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 N. I. MURPHY, Minor. October 29, 2019
No. 346634
Calhoun Circuit Court
Family Division
LC No. 2002-004363-NA
Before: MARKEY, P.J., and BORRELLO and BOONSTRA, JJ.
PER CURIAM.
Respondent-mother appeals by right the trial court’s order terminating her parental rights
to the minor child, NIM, under MCL 712A.19b(3)(c)(i) (conditions of adjudication continue to
exist), (g) (failure to provide proper care or custody), (i) (rights to siblings terminated due to
neglect or abuse and parent failed to rectify conditions), and (j) (reasonable likelihood that child
will be harmed if returned to parent). We affirm.
Respondent has a long history with the Department of Health and Human Services
(DHHS), including having had her parental rights to three other children terminated. For years
before NIM was removed, respondent engaged in criminal conduct and substance abuse
involving alcohol and cocaine. During the proceedings following removal and leading up to
termination, respondent twice violated probation, continued to use substances, and committed
multiple sobriety court violations. Respondent was incarcerated at the time of termination and
still had to serve at least 15 months before her release from prison. Her criminal record and
substance abuse history are extensive.1 Missed and positive drug screens marked the
proceedings. Numerous services and efforts to address respondent’s substance abuse had,
unfortunately, repeatedly failed over a span of many years. A psychological evaluation gave
respondent a “poor prognosis” of overcoming her problems. Respondent’s alcohol and
substance abuse posed a serious threat to NIM’s safety and well-being, including an instance in
1
The trial court repeatedly referenced respondent’s “20 year substance abuse history.” The court
also mentioned respondent’s “extensive criminal history dating back to 1992.”
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2016 when she operated a vehicle with a blood alcohol level of 0.29% with NIM in the car. In
light of respondent’s criminal and substance abuse history, which did not subside after NIM was
removed from her care, we agree there was a clear indication that she would not be able to
change her ways in the foreseeable future. The trial court observed, “The psychological
evaluation gave her a poor prognosis, she has over 20 years of services and she was still testing
positive just prior to her incarceration or having violations for substance abuse.”
If a trial court finds that a single statutory ground for termination has been established by
clear and convincing evidence and that it has been proved by a preponderance of the evidence
that termination of parental rights is in the best interests of a child, the court is mandated to
terminate a respondent's parental rights to that child. MCL 712A.19b(3) and (5); In re Beck, 488
Mich 6, 10-11; 793 NW2d 562 (2010); In re Moss, 301 Mich App 76, 90; 836 NW2d 182
(2013); In re Ellis, 294 Mich App 30, 32; 817 NW2d 111 (2011). “This Court reviews for clear
error the trial court's ruling that a statutory ground for termination has been established and its
ruling that termination is in the children's best interests.” In re Hudson, 294 Mich App 261, 264;
817 NW2d 115 (2011); see also MCR 3.977(K). “A finding . . . is clearly erroneous if the
reviewing court has a definite and firm conviction that a mistake has been committed[.]” In re
BZ, 264 Mich App 286, 296; 690 NW2d 505 (2004). In applying the clear error standard in
parental termination cases, “regard is to be given to the special opportunity of the trial court to
judge the credibility of the witnesses who appeared before it.” In re Miller, 433 Mich 331, 337;
445 NW2d 161 (1989); see also MCR 2.613(C). The trial court must “state on the record or in
writing its findings of fact and conclusions of law[,] [and] [b]rief, definite, and pertinent findings
and conclusions on contested matters are sufficient.” MCR 3.977(I)(1).
Respondent first argues that termination of her parental rights was based on MCL
712A.19b(3)(g),2 that this provision requires a showing that the parent will not be able to provide
proper care and custody within a reasonable time, that MCL 712A.19b(3)(h), which concerns
imprisoned parents, requires the deprivation of a normal home for a period exceeding 2 years,
and that the trial court “based its decision on the statutory language that [respondent] would be
incarcerated for 2 years and have approximately another 15 months of incarceration as of the
date of trial.”
First, the trial court terminated respondent’s parental rights under four grounds in MCL
712A.19b(3), not solely § 19b(3)(g). Second, § 19b(3)(h) was not one of the statutory grounds
upon which termination was based. Third, and finally, respondent does not direct us to any
authority supporting the proposition, if respondent is so asserting, that the language in
Subsection (3)(h) has relevance to analyzing Subsection (3)(g). “It is not enough for an appellant
in his brief simply to announce a position or assert an error and then leave it up to this Court to
discover and rationalize the basis for his claims, or unravel and elaborate for him his arguments,
2
MCL 712A.19b(3)(g) provides for termination when a “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.”
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and then search for authority either to sustain or reject his position.” Mudge v Macomb Co, 458
Mich 87, 105; 580 NW2d 845 (1998) (quotation marks omitted).
Respondent next contends that there was no testimony by a psychologist, social worker,
or other expert that she would be unable to care for NIM once released from prison or within a
reasonable time. Respondent, however, fails to supply any supporting authority for her assertion
that such testimony was required. See id. We also note that, as indicated earlier, there was a
psychological evaluation that gave respondent a “poor prognosis.”
Respondent, claiming an exemplary prison record, the completion of various classes, the
attainment of certain certificates, and the procurement of employment and housing for the future,
argues that the trial court clearly erred in finding that there existed clear and convincing evidence
that she would not be able to provide proper care and custody within a reasonable time. For
purposes of MCL 712A.19b(3)(g), respondent’s extensive history of abusing drugs and alcohol,
the repeated failures over the years to overcome her substance abuse issues, her incarceration,
and her poor prognosis more than adequately supported a conclusion that there was no
reasonable expectation that she would be able to provide proper care and custody within a
reasonable time considering NIM’s age.3 The trial court acknowledged respondent’s
accomplishments and applauded her efforts, but it nonetheless terminated her parental rights
because her achievements could not make up for the fact that she simply could not conquer her
horrendous addictions to drugs and alcohol, which were ongoing. We hold that there was no
clear error by the court in concluding that MCL 712A.19b(3)(g) was established by clear and
convincing evidence.
Furthermore, respondent fails to challenge termination under the additional grounds set
forth in § 19b(3)(c)(i), (i), and (j), which the trial court relied on. There need be only a single
statutory ground established for termination. “When an appellant fails to dispute the basis of a
lower court's ruling, we need not even consider granting the relief being sought by the
appellant.” Denhof v Challa, 311 Mich App 499, 521; 876 NW2d 266 (2015). Accordingly, the
three additional statutory grounds for termination stand. Moreover, the evidence identified
above that supported termination under § 19b(3)(g), along with the undisputed fact that there
were prior terminations with respect to NIM’s siblings supported termination under MCL
712A.19b(3)(c)(i), (i), and (j). We hold that there was no clear error by the trial court in finding
that these three grounds were proven by clear and convincing evidence.
Respondent next argues that the trial court clearly erred in determining that termination
of respondent’s parental rights was in NIM’s best interests. Respondent maintains that she
established that she has a home with a stable environment, that she has a job waiting for her
when she is released from prison, that she loves her son, that she has bettered her life through
parenting and substance abuse classes, and that there was no testimony from any licensed
psychologist or child specialist that termination was in the child’s best interests.
3
NIM was seven years old at the time of termination.
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With respect to a child’s best interests, we place our focus on the child rather than the
parent. In re Moss, 301 Mich App at 87. In assessing a child’s best interests, a trial court may
consider such factors as a “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.” In re Olive/Metts Minors, 297 Mich App 35, 41-42; 823 NW2d 144 (2012)
(citations omitted). “The trial court may also consider a parent's history of domestic violence,
the parent's compliance with his or her case service plan, the parent's visitation history with the
child, the children's well-being while in care, and the possibility of adoption.” In re White, 303
Mich App 701, 714; 846 NW2d 61 (2014). A trial court can additionally consider the length of
time a child “was in foster care or placed with relatives,” and whether it was likely that “the child
could be returned to [the parent’s] home within the foreseeable future, if at all.” In re Frey, 297
Mich App 242, 248-249; 824 NW2d 569 (2012). At this stage of the proceedings, the interest of
the child in living in a stable home is superior to any interest of the parent. In re Medina, 317
Mich App 219, 237; 894 NW2d 653 (2016).
In determining NIM’s best interests, the trial court considered the fact that the child
would be in care for at least a couple more years if the wardship continued, that he had already
been in care for 14 months during the current proceedings, that he had not seen respondent for
six months, and that, as reflected in part by a psychological evaluation, NIM needed consistency,
permanency, stability, and structure. Respondent could not provide for NIM’s needs, but they
were being met by NIM’s foster family. Further, the court indicated that NIM’s foster home was
securing NIM’s trust, health, and safety, that the child had bonded with his foster family, and that
the foster parents wished to adopt NIM. Of course, there was also respondent’s extensive
criminal and substance abuse history, reflecting that it would not be in NIM’s best interests to
continue the proceedings. We conclude that the record provided ample support for the trial
court’s findings and that the court did not clearly err in determining that termination of
respondent’s parental rights was in the best interests of NIM.
Finally, respondent argues that the trial court erred by rejecting an offer of guardianship
made by respondent’s cousin. Respondent contends that, contrary to the trial court’s view, a
guardianship was a viable option. “The court is not required to order the agency to initiate
proceedings to terminate parental rights if . . . [t]he child is being cared for by relatives.” MCL
712A.19a(8)(a). “[T]he . . . placement with respondent's family [is] an explicit factor to consider
in determining whether termination [is] in the children's best interests,” In re Mason, 486 Mich
142, 164; 782 NW2d 747 (2010). But a trial court is not required to establish a guardianship in
lieu of terminating parental rights if it is not in the child's best interests to do so. In re McIntyre,
192 Mich App 47, 52-53; 480 NW2d 293 (1991).
The trial court addressed the issue of a possible guardianship for NIM, stating that it was
fully considered. The court found that it was an inappropriate option for NIM because the
relative indicated that there was no interest in providing long-term care for NIM. Looking at the
absolute best-case scenario to favor respondent, the trial court explained that NIM would still
need to be in care for another two years, which was not practical or feasible because the possible
guardian was not interested in a long-term commitment. Under all of the circumstances
presented, the trial court determined that termination, not a guardianship, was in NIM’s best
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interests. We cannot conclude that the trial court’s findings, reasoning, and determination
constituted clear error.
We affirm.
/s/ Jane E. Markey
/s/ Stephen L. Borrello
/s/ Mark T. Boonstra
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