in Re richardson/ragland 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UNPUBLISHED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 RICHARDSON/RAGLAND Minors. March 26, 2019
Nos. 345142; 345143
Monroe Circuit Court
Family Division
LC No. 16-023833-NA
Before: SHAPIRO, P.J., and BECKERING and M. J. KELLY, JJ.
PER CURIAM.
The trial court terminated each respondent’s parental rights to the three minor children
they had in common. The court also terminated respondent-mother’s parental rights to another
minor child. The statutory grounds for termination of respondent-mother’s rights were MCL
712A.19b(3)(c)(i), (c)(ii), and (g). The same grounds, as well as MCL 712A.19b(3)(h), were
relied on for termination of respondent-father’s parental rights. We affirm in each appeal.
Respondent-mother has a history with Child Protective Services (CPS), dating back to
her first child’s birth in 2011, including drug abuse and neglect. She was referred for services on
several occasions, but did not follow through with the relevant agencies. Respondent-father, the
father of the three younger children, was arrested in January 2016 before the youngest child was
born. In April 2016, he was sentenced to 2 ½ to 10 years in prison.
In May 2016, petitioner, the Department of Health and Human Services, sought
temporary jurisdiction over the four children. Respondent-mother entered a plea of admission,
allowing the trial court to exercise jurisdiction over the children. The trial court entered its initial
dispositional order in June 2016, which required respondent-mother to comply with various
requirements of a case-service plan. After respondent-father established paternity to his three
children, he entered a plea of admission to the court’s jurisdiction in September 2016.
Petitioner sought termination of respondents’ parental rights in a petition filed in October
2017. In December 2017, following a termination hearing, the trial court declined to terminate
respondents’ parental rights and ordered petitioner to continue to provide reunification services.
The court found that although respondent-mother had admitted to using marijuana, the evidence
did not show that her continued use impaired her ability to care for the children. The court noted
that respondent-mother’s primary deficiencies were a lack of housing and income, but her
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testimony indicated that she was employed and had obtained housing that was ready for her
children. Therefore, the evidence did not demonstrate that respondent-mother would not be able
to rectify the conditions that led to the adjudication, or that she would not be able to provide
proper care and custody, within a reasonable period of time. The court also declined to terminate
respondent-father’s parental rights. The court set a 45-day goal for respondent-mother to
demonstrate her ability to adequately parent the children.
After the December 2017 termination hearing, caseworkers discovered that, contrary to
respondent-mother’s testimony at the hearing, her home was not ready for the children because it
had no furniture other than a toddler bedframe without a mattress. The agency arranged to
provide temporary furnishings for respondent-mother while she worked with the agency and with
other community resources to prepare her home. The agency also learned that respondent-
mother was unemployed and had been dismissed from her prior job before the first termination
hearing, contrary to her testimony at the hearing. The agency assigned a parent mentor to work
with respondent-mother one-on-one and during semi-supervised visitation with the children in
her home. During visitations, workers observed that respondent-mother failed to supervise all
four children or engage with them effectively. Respondent-mother also allowed unapproved
visitors access to her home while the children were present. Petitioner filed a second petition to
terminate respondents’ parental rights, which the trial court granted in July 2018 on the statutory
grounds listed above.
I. DOCKET NO. 345142 (RESPONDENT-MOTHER)
Respondent-mother initially argues that the trial court erred by exercising jurisdiction
over the children on the basis of her plea of admission in May 2016, which she contends did not
establish a proper statutory basis for jurisdiction.
Because respondent-mother did not challenge the trial court’s exercise of jurisdiction or
the validity of her plea at the plea proceeding, in a motion to withdraw her plea, or otherwise in
the trial court, this issue is unpreserved. In re Utrera, 281 Mich. App. 1, 8; 761 NW2d 253
(2008). More significantly, an adjudication generally “cannot be collaterally attacked following
an order terminating parental rights.” In re SLH, 277 Mich. App. 662, 668; 747 NW2d 547
(2008). Accord In re Hatcher, 443 Mich. 426, 444; 505 NW2d 834 (1993). Only when the
termination occurs at the initial disposition can a respondent directly challenge both the statutory
ground for jurisdiction, i.e., an adjudication, and the termination of parental rights. See In re
SLH, 277 Mich. App. at 668. In this case, the trial court terminated respondent-mother’s parental
rights pursuant to a supplemental petition and thus she is barred from now collaterally
challenging the court’s decision to exercise jurisdiction over the children.
Respondent-mother cites In re Wanger, 498 Mich. 911 (2015), in support of her argument
that an error at the adjudication stage can be appealed after entry of an order terminating parental
rights. In that case our Supreme Court found that the respondent’s jurisdictional challenge based
on errors at the plea proceeding was not an impermissible collateral attack because it was
“unclear when the trial court issued its initial dispositional order, which is the first order
appealable by right.” Id. Here, there is no uncertainty that the trial court issued the initial
dispositional order on June 9, 2016. The trial court later terminated respondent-mother’s
parental rights pursuant to a supplemental petition, and it entered its order terminating her
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parental rights more than two years after it issued the initial dispositional order, which was never
appealed or otherwise challenged below. Accordingly, respondent-mother may not now
collaterally attack the trial court’s exercise of jurisdiction in this appeal.
We reject respondent-mother’s argument that she should be permitted to challenge the
trial court’s exercise of jurisdiction in this appeal because the initial dispositional order was not a
“final order.” Respondent-mother’s ability to appeal the initial dispositional order does not
depend on whether the order qualifies as a “final” order. MCR 3.993(A) provides:
(A) The following orders are appealable to the Court of Appeals by right:
(1) an order of disposition placing a minor under the supervision of the
court or removing the minor from the home,
(2) an order terminating parental rights.
Thus, the initial dispositional order was appealable by right irrespective of whether it qualifies as
a final order.1
Respondent-mother next argues that the trial court erred by finding that termination of
her parental rights was in the children’s best interests.2 Once a statutory ground for termination
is established, the trial court shall order termination of parental rights if it finds that termination
is in the child’s best interests. MCL 712A.19b(5). The trial court’s best-interest decision is
reviewed for clear error. In re Brown/Kindle/Muhammad, 305 Mich. App. 623, 637; 853 NW2d
459 (2014). “A finding is clearly erroneous if, although there is evidence to support it, this Court
is left with a definite and firm conviction that a mistake has been made.” In re Hudson, 294
Mich. App. 261, 264; 817 NW2d 115 (2011).
Petitioner presented ample evidence that respondent-mother had weak or non-existent
bonds with the children. CSR, the child most strongly attached to respondent-mother, was
detaching as he realized that respondent-mother was not going to progress to reunification. CSR
wanted a normal childhood, but had already accepted that he would not have one with
respondent-mother. JJSR was distressed by visitation with respondent-mother. He stated that he
did not want to see her. ACR did not yet have an ability to form normal attachments. She
readily attached to any adult, and addressed all females as “Mama.” She never developed a
normal relationship with either biological parent. In supervised visitation, multiple witnesses
1
Even if we considered respondent-mother’s argument, we would conclude that it lacks merit.
Respondent-mother admitted at the plea proceeding that she did not have adequate housing, that
her drug use interfered with her ability to parent, and that she was offered, but refused, services
to rectify these problems. These admissions were sufficient to establish that respondent-
mother’s children were at risk of harm and lacked a fit home environment, thereby supporting
the trial court’s exercise of jurisdiction under MCL 712A.2(b)(1) and (2).
2
Respondent-mother does not challenge the trial court’s determination that statutory grounds for
termination were established under MCL 712A.19b(3)(c)(i), (c)(ii), and (g).
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observed that respondent-mother failed to interact with her children and failed to recognize when
they met potential hazards.
There was also substantial evidence that respondent-mother would not be able to provide
a stable, permanent home within a reasonable time. Respondent-mother had eventually
established adequate housing but only with substantial assistance from several providers. The
home remained unsuitable because she allowed unapproved persons to visit when the children
were present and she was unable to adequately supervise all of the children. In addition, after
two years, she had not demonstrated an ability to remain employed. There was evidence that she
generally displayed an inability to handle adult and parental responsibilities, such as living
independently, supporting herself, and meeting her children’s needs, including safety.
Respondent-mother asserts that the trial court wrongly “chastised” her “for comments
made at a prior hearing without succinctly identifying relevant factors” that changed between the
two termination hearings. This ignores that respondent-mother gave patently false testimony at
the first hearing when she told the court that her home was ready for her children and that she
was still employed. In any event, there was substantial evidence to support the trial court’s best-
interests determination.
II. DOCKET NO. 345143 (RESPONDENT-FATHER)
Respondent-father argues that the trial court clearly erred by finding that statutory
grounds for termination were established by clear and convincing evidence. The trial court
terminated respondent-father’s parental rights pursuant to MCL 712A.19b(3)(c)(i), (c)(ii), (g),
and (h) which permitted termination under the following circumstances:
(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 either
of 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.
(ii) Other conditions exist that cause the child to come within the court’s
jurisdiction, the parent has received recommendations to rectify those conditions,
the conditions have not been rectified by the parent after the parent has received
notice and a hearing and has been given a reasonable opportunity to rectify the
conditions, and there is no reasonable likelihood that the conditions will be
rectified within a reasonable time considering the child’s age.
* * *
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(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.[3]
(h) The parent is imprisoned for such a period that the child will be
deprived of a normal home for a period exceeding 2 years, and the parent has not
provided for the child's proper care and custody, 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.
Respondent-father primarily argues that the trial court erred by terminating his parental
rights because he was incarcerated throughout the proceedings and thus did not have a
meaningful opportunity to participate in the proceedings and work toward reunification. He
claims he would be paroled in July 2018, the same month that the trial court issued its order
terminating his parental rights.
In In re Mason, 486 Mich. 142; 782 NW2d 747 (2010), our Supreme Court held that an
incarcerated parent has the right to participate in child protective proceedings. In that case, the
respondent-father was not given the opportunity to participate in review hearings by phone, and
the petitioner failed to provide him with an updated case-service plans. The worker also did not
contact the prison social worker to help the respondent obtain services in prison. Id. at 155-158.
The Supreme Court held that the trial court erred by terminating the respondent’s parental rights
under § 19b(3)(h), giving three reasons for that decision. First, the trial court failed to take into
account that the respondent anticipated being paroled in less than two years at the time the
petitioner sought termination of parental rights. Id. at 162. Second, the court erred by accepting
the worker’s opinion that the respondent would not be ready to care for his children for at least
six months after he was released from prison. The Court noted that petitioner failed to evaluate
the respondent’s parenting skills and failed to facilitate his access to services. Id. Third, the trial
court never considered whether the respondent could provide care for his children “by
voluntarily granting legal custody to his relatives during his remaining term of incarceration.”
Id. at 163. The Court noted that the children had, in fact, been successfully placed with the
respondent’s family. Id. at 163-164. The Court also considered grounds for termination under
§§ 19b(3)(c)(i), (g), and (j), and determined that the trial court erred by terminating under these
grounds because the respondent was not allowed the opportunity to participate in the proceedings
and work toward reunification. Id. at 165-166.
This case is distinguishable from In re Mason. Respondent-father does not dispute that
he received the case-service plan, and he participated by phone in the periodic review hearings,
in addition to the two termination hearings. The trial court did not disregard respondent-father’s
testimony that his parole was imminent. The court instead found that “[h]e will be moving into a
home in which his children will not be able to live.” The court implicitly discredited respondent-
father’s expectation of an independent home within six months by remarking that his ability to
3
This version of § 19b(3)(g) became effective June 12, 2018. See 2018 PA 58.
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provide for his children would be hindered by his financial responsibility for outstanding
warrants. Additionally, whereas the respondent in In re Mason “did construction work to
support the family” before his incarceration, id. at 147, there is no evidence that respondent-
father had ever provided substantial support for his children. Moreover, respondent-father did
not establish his paternity until after these proceedings began, and he did not offer any suitable
relatives who could provide temporary custody for the children.
Given these circumstances, the trial court did not clearly err by finding that termination
of respondent-father’s parental rights was warranted under §§ 19b(3)(c)(i) and (c)(ii). Even if
respondent-father’s optimistic expectation of sufficient income and independent housing within
six months were realized, the children had already been in care for two years and were at a stage
where they were in dire need of stability and permanence. Moreover, respondent-father was a
virtual stranger to his three children. The only child with whom he had previously established a
bond was JJSR, but it was doubtful that any bond with this child still existed at the time of the
hearing. In addition to establishing his own housing and financial stability, respondent-father
would need to establish a relationship with his children and demonstrate his parenting abilities
before reunification would be possible. His lack of a relationship with the children and his prior
failure to provide for them financially and emotionally weighs against a reasonable expectation
that he would be able to rectify these conditions within a reasonable time considering the
children’s ages.
With respect to § 19b(3)(g), the record discloses that the trial court applied the prior
version of the statute, which was amended by 2018 PA 58, effective June 12, 2018, which was
approximately seven weeks before the court issued its order terminating respondent-father’s
parental rights. Before it was amended, § 19b(3)(g) provided:
The parent, without regard to intent, 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.
The amendment replaced the language “without regard to intent” with “although, in the court’s
discretion, financially able to do so.” We question the trial court’s failure to apply the version of
§ 19b(3)(g) in effect at the time the court issued its order. Notably, the court did not make
findings regarding respondent-father’s financial ability to provide proper care and custody for the
children. However, because only one statutory ground for termination is sufficient to support
termination of parental rights, In re Schadler, 315 Mich. App. 406, 410; 890 NW2d 676 (2016),
and the trial court did not clearly err by finding that termination of respondent-father’s parental
rights was justified under §§ 19b(3)(c)(i) and (c)(ii), any error in relying on § 19b(3)(g) as an
additional ground for termination was harmless.
We also question the trial court’s reliance on § 19b(3)(h) (imprisonment “for such a
period that the child will be deprived of a normal home for a period exceeding 2 years”)
(emphasis added) where the evidence indicated that respondent-father was expected to be
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paroled shortly after the termination hearing concluded.4 Again, however, because the trial court
properly found that termination of respondent-father’s parental rights was justified under
§§ 19b(3)(c)(i) and (c)(ii), any error in relying on § 19b(3)(h) was also harmless. In re Schadler,
315 Mich. App. at 410.
Respondent-father also argues that the trial court erred by finding that termination of his
parental rights was in the children’s best interests. As previously indicated, the children were in
dire need of stability and permanence. Although respondent-father had established a bond with
JJSR before he was incarcerated, the child was only two years old when respondent-father
entered prison and the evidence indicated that the child did not remember respondent-father.
Respondent-father stated that he played with ACR when she was an infant, but this evidence did
not establish any notable bond with the child. Respondent-father never met the youngest child,
MLLR. Respondent-father had never cared for the children or provided them with substantial
financial support. Conversely, the children had begun bonding with a family who was interested
in adopting them, which would provide them with the stability and permanence they needed.
The trial court did not clearly err by finding that termination of respondent-father’s parental
rights was in the children’s best interests.
Affirmed.
/s/ Douglas B. Shapiro
/s/ Jane M. Beckering
/s/ Michael J. Kelly
4
Indeed, respondent-father was paroled after the hearing concluded, but before the court issued
its order terminating parental rights.
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