in Re M D Ashburn Minor ( 2018 )

STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
December 11, 2018
In re M. D. Ashburn, Minor.
No. 343080
Macomb Circuit Court
Family Division
LC No. 2017-000003-NA
Before: GLEICHER, P.J., and BORRELLO and BECKERING, JJ.
PER CURIAM.
The circuit court terminated respondent-mother’s parental rights to her young daughter,
MDA, after a 15-month child protective proceeding for failure to adequately participate in and
benefit from services. Respondent challenges the factual findings underlying the court’s ruling.
We discern no error and affirm.
I. BACKGROUND
In early December 2016, Child Protective Services removed respondent’s five-year-old
daughter, EZ, from her care due to physical abuse, neglect, and substance abuse. CPS had
intervened with respondent’s family several times since her daughter’s 2011 birth based on
respondent’s arrests for domestic violence, untreated mental health issues, and substance abuse.
The Department of Health and Human Services placed EZ with her father, who eventually was
awarded sole custody in family court. No court has terminated respondent’s rights to EZ.
On December 28, 2016, respondent gave birth to her second child, MDA. MDA tested
positive for cocaine and opiates at birth and remained hospitalized during treatment for
withdrawal symptoms. After MDA’s release, she was placed in nonrelative foster care near
respondent’s Macomb County home. MDA’s father signed an acknowledgment of paternity
shortly after her birth and began participating in services. As of the filing of this appeal, it
appeared that MDA’s father would soon earn custody of his child.
In January 2017, the DHHS referred respondent for a psychological evaluation,
counseling, a CARE assessment, drug screens, substance abuse therapy, infant mental health
services, and supervised visitation. From the start, respondent failed to appear for drug screens
and she delayed in scheduling and attending intake appointments for services. Respondent did
not regularly attend supervised parenting time sessions at the Macomb County DHHS office. An
April 12, 2017 report noted that respondent had attended only five out of 11 visits.
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By May 4, 2017, respondent had submitted to a psychological evaluation. Respondent
made excuses for her children being in care and denied any drug use. The evaluator diagnosed
respondent as having “borderline intellectual functioning” and with moderate “persistent
depressive disorder.” He recommended parenting classes, drug testing, supervised visitation,
and “supportive psychotherapy.” However, respondent was still noncompliant with drug testing
and had not arranged a substance abuse therapy intake appointment. Respondent had attended
only six out of 13 visits with MDA. Respondent blamed her attendance issues on her lack of
transportation and was given bus passes. To her credit, respondent secured employment at a
retail establishment.
Despite her documented lack of compliance from the onset of the proceedings,
respondent now contends that events occurring in June 2017 stymied her progress. That month,
MDA’s paternal great-grandparents took custody of the baby, moving her from Macomb County
to Dearborn. Respondent’s grandmother also became gravely ill, and ultimately passed away in
November. Respondent contends that as she relied on family members for rides, these events
limited her transportation pool. Respondent also asserts that the paternal great-grandmother was
hostile and made visits uncomfortable.
Between May and September 2017, respondent visited MDA only three times.
Respondent missed all but one random drug screen, at which she tested positive for
Hydrocodone and Tramadol. Although respondent claimed to have prescriptions for these
medications, she provided only one 30-day prescription for Tramadol during the proceedings.
Respondent refused to take a drug test when asked at an August 24, 2017 review hearing.
Respondent did not begin substance abuse counseling or individual therapy, repeatedly
cancelling appointments. Respondent also did not enroll in court-ordered parenting classes.
The DHHS then referred respondent to Orchard Family Services, which would provide
hands-on parenting coaching during visits as well as free transportation to the visits. Respondent
was terminated from the program on October 28, 2017, for lack of participation. Although
respondent visited MDA on September 29, 2017, she attended no further visits before a
December 21 hearing. She again failed to appear for any drug screens and again cancelled intake
appointments for counseling and substance abuse treatment, resulting in her termination from
that service provider. While respondent remained employed, she had been living in the homes of
relatives who would not allow the DHHS to enter for a home study.
Respondent now contends that after her grandmother’s death in November 2017, her
family members were better able to provide her transportation and she made renewed efforts to
comply with her case service plan. Yet, respondent did not start parenting classes until January
30, 2018, more than a year into the proceedings. She missed too many sessions and was
removed from the program. Respondent completed an intake appointment for mental health and
substance abuse therapy on December 26, 2017. She scheduled and canceled several therapy
sessions, attending only one group session on January 11, 2018, and one individual session on
January 16. Respondent did not visit MDA for Christmas or her birthday but did spend 1.5 hours
with her daughter on January 1. Respondent attended no further visits in January. Respondent
continued to avoid drug testing into the new year.
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Ultimately, the DHHS filed a supplemental petition seeking termination of respondent’s
parental rights on December 26, 2017, and after a three-day termination hearing, the court
terminated her rights on March 13, 2018. During this time, respondent attended a parenting time
session at MDA’s great-grandparents’ home. Respondent and her grandfather, who
accompanied her, described that MDA was loving and affectionate toward her mother and did
not want her mother to leave. The great-grandmother and the caseworker painted a different
picture, however. Respondent spent a significant amount of time using her cell phone and did
not react when MDA fell and bumped her head. The caseworker denied that MDA showed any
distress, or even any reaction, when respondent left. The caseworker also never observed any
hostility from the great-grandmother toward respondent, challenging respondent’s credibility in
this regard.
Respondent now appeals the termination decision, claiming that the circuit court relied on
a skewed version of the evidence, undermining the statutory and best-interest interest findings.
II. STATUTORY GROUNDS
Pursuant to MCL 712A.19b(3), a circuit court “may terminate a parent’s parental rights
to a child if the court finds, by clear and convincing evidence” that at least one statutory ground
has been proven by the DHHS. MCR 3.977(A)(3); In re Trejo, 462 Mich. 341, 350; 612 NW2d
407 (2000). When termination is sought in a supplemental petition, the DHHS must present
legally admissible evidence in support. In re DMK, 289 Mich. App. 246, 258; 796 NW2d 129
(2010). We review for clear error a circuit court’s factual finding that a statutory termination
ground has been established. In re Rood, 483 Mich. 73, 90-91; 763 NW2d 587 (2009). “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 Moss, 301 Mich. App. 76, 80; 836 NW2d 182 (2013) (quotation marks and
citation omitted). “Clear error signifies a decision that strikes us as more than just maybe or
probably wrong.” In re Williams, 286 Mich. App. 253, 271; 779 NW2d 286 (2009).
The court terminated respondent’s parental rights pursuant to MCL 712A.19b(3)(c)(i),
(g), and (j), which at the time of the termination hearing provided:
(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 either of the following:
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(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, 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.
* * *
(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.[1]
Although these proceedings were short, respondent was given well over 182 days to
rectify the conditions that led to adjudication. The main conditions that led to adjudication were
respondent’s untreated mental health and substance abuse issues. Respondent did not begin
counseling for these issues until January 2018, after the termination petition had been filed.
Even then, she attended only one group and one individual session. Respondent persistently
failed to participate in random drug screens during these proceedings, and when she did, she
tested positive for prescription medications. Although respondent claimed to have valid
prescriptions for these drugs, she provided only one 30-day prescription form. Termination is
appropriate under factor (c)(i) when the respondent has “not accomplished any meaningful
change in the conditions existing [at] the time of the adjudication.” Williams, 286 Mich. App. at
272. The parent must participate in and benefit from services to demonstrate her ability to safely
parent her children. In re Gazella, 264 Mich. App. 668, 676; 692 NW2d 708 (2005). As
respondent made little attempt, she could show no benefit and could not demonstrate that she
would be able to safely parent MDA within a reasonable time.
Similarly, termination was supportable under factor (g). Respondent had never provided
any care or custody for MDA. Although she had secured employment, respondent had achieved
no other goal to ensure her ability to provide proper care and custody in the future. Only on the
eve of the termination hearing did respondent attempt to comply with her court-ordered services
plan, and even then, respondent’s participation was minimal to nonexistent. Given her failure to
follow through with services, it is unlikely respondent would be able to provide proper care or
1
Effective June 1, 2018, subsection (g) provides:
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. [See 2018 PA 58.]
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custody for MDA in the future. As termination was supported under factors (c)(i) and (g), we
need not speculate whether MDA would be in harm’s way if placed in respondent’s care.
III. BEST INTERESTS
“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.” In re
Olive/Metts, 297 Mich. App. 35, 40; 823 NW2d 144 (2012), citing MCL 712A.19b(5).
“[W]hether termination of parental rights is in the best interests of the child must be proven by a
preponderance of the evidence.” Moss, 301 Mich. App. at 90. The court should weigh all the
evidence available to it in determining the child’s best interests. Trejo, 462 Mich. at 356-357.
Relevant factors include “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). “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, [and] the children’s well-
being while in care. . . .” In re White, 303 Mich. App. 701, 714; 846 NW2d 61 (2014). The
advantages of the child’s foster placement over placement with the parent are a relevant
consideration. In re Foster, 285 Mich. App. 630, 634-635; 776 NW2d 415 (2009). However, a
child’s placement with relatives weighs against termination, MCL 712A.19a(6)(a), and the court
must expressly consider the child’s relative placement in making its best-interest determination.
Olive/Metts, 297 Mich. App. at 43.
Respondent contends that termination of her parental rights was not in MDA’s best
interests, noting that the court had not terminated her parental rights to her older daughter when
she was placed in her father’s care and MDA would similarly be placed in her father’s care.
However, in child protective proceedings, the court must consider the best interests of each child
individually. Olive/Metts, 297 Mich. App. at 42. EZ’s father was ready and able to care for his
child as soon as EZ was removed from respondent’s care. In a separate custody matter, the
family court granted the father sole custody of EZ. EZ’s best interests were protected in that
proceeding and the family court could exercise continuing jurisdiction in the custody action. In
this matter, MDA’s father was not immediately able to provide care and custody for his child.
Just like respondent, he required rehabilitative services geared toward reunification. But unlike
her sister, MDA’s best interests would not be subject to on-going consideration and possible
supervision in a child custody proceeding. As such, it was not necessarily in MDA’s best
interests to retain respondent’s parental rights.
Moreover, termination was in MDA’s best interests because she has no bond with her
mother. The DHHS took MDA into care immediately after birth. During the first 15 months of
MDA’s life, respondent visited her approximately once each month. Although respondent and
her relatives described a loving bond between parent and child, the caseworker observed no such
relationship. And respondent had not participated in parenting classes and therapy to improve
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her chances of bonding with MDA. MDA requires stability and permanence. Waiting for
respondent to demonstrate some benefit from services was not in the child’s best interests, even
considering that the child has been placed with relatives.
We affirm.
/s/ Elizabeth L. Gleicher
/s/ Stephen L. Borrello
/s/ Jane M. Beckering
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