in Re Jefferson Minors ( 2019 )


Menu:
  •              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    UNPUBLISHED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 JEFFERSON, Minors.                                              February 19, 2019
    Nos. 343470; 343503
    St. Clair Circuit Court
    Family Division
    LC No. 16-000388-NA
    Before: CAVANAGH, P.J., and BORRELLO and REDFORD, JJ.
    PER CURIAM.
    In these consolidated appeals,1 respondents appeal by right the trial court’s order
    terminating their parental rights to the minor children under MCL 712A.19b(3)(c)(i) (conditions
    that led to the adjudication continue to exist), (g) (without regard to intent, failure to provide
    proper care and custody),2 and (j) (reasonable likelihood that the child will be harmed if returned
    to parent). For the reasons set forth in this opinion, we affirm.
    I. BACKGROUND
    Respondents are the parents of two minor children. In May 2015, police and Department
    of Health and Human Services (DHHS) workers were alerted to problems concerning the minor
    children. Initially, one of the minor children was found alone on a playground and no one could
    1
    In re Jefferson Minors, unpublished order of the Court of Appeals, entered May 2, 2018
    (Docket Nos. 343470 and 343503).
    2
    MCL 712A.19b(3)(g) was amended, effective June 12, 2018. See 
    2018 PA 58
    . Under the
    current version of the statute, statutory grounds exist to terminate a parent’s parental rights if the
    court finds by clear and convincing evidence that “[t]he 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.” Because the order terminating parental
    rights was entered on April 4, 2018, before the amendment took effect, the prior language of the
    statute is applicable.
    reach either of their parents. Approximately three days later, respondent-mother was
    incarcerated and one of the minor children was again outside, this time without shoes or
    supervision. Then, in September 2015 police responded to respondents’ residence for a domestic
    abuse call. It was alleged that respondent-father punched respondent-mother who then grabbed a
    knife for protection. All of this occurred in the presence of one of the minor children.
    In June of 2016, after both minor children were found outside late at night without
    supervision, Child and Protective Services (CPS) began an investigation which lead to a
    conclusion that both respondents were addicted to numerous substances, such as heroin, cocaine,
    crack cocaine, prescription pills and marijuana. Prior, police had responded to a call and found
    respondent-mother passed out in the bathroom and unresponsive. Both minor children were
    present when this occurred. Additionally, respondent-father pled guilty to a domestic abuse
    charge and a delivery of narcotics charge during the pendency of this matter.
    Based on its review of the record, the trial court terminated respondents’ parental rights,
    for the basis as stated above. The trial court also found that termination was in the best interests
    of the children. This appeal then ensued.
    II. STANDARD OF REVIEW
    On appeal from termination of parental rights proceedings, this Court reviews the trial
    court’s findings under the clearly erroneous standard. MCR 3.977(K); In re Hudson, 294 Mich
    App 261, 264; 817 NW2d 115 (2011). A finding of fact is clearly erroneous if the reviewing
    court is left with a definite and firm conviction that a mistake was made. In re JK, 
    468 Mich. 202
    , 209-210; 661 NW2d 216 (2003). Further, regard is to be given to the special opportunity of
    the trial court to judge the credibility of the witnesses who appear before it. MCR 2.613(C);
    MCR 3.902(A); In re Miller, 
    433 Mich. 331
    , 337; 445 NW2d 161 (1989). Only one statutory
    ground for termination of parental rights needs to be established by clear and convincing
    evidence. In re Moss, 
    301 Mich. App. 76
    , 88; 836 NW2d 182 (2013).
    Once the petitioner has established a statutory ground for termination by clear and
    convincing evidence, the trial court must find that termination is in the child’s best interests
    before it can order termination of parental rights. MCL 712A.19b(5). Whether termination of
    parental rights is in the best interests of the child must be proven by a preponderance of the
    evidence. In re 
    Moss, 301 Mich. App. at 88-90
    . This Court reviews a trial court’s decision
    regarding a child’s best interests for clear error. In re Laster, 
    303 Mich. App. 485
    , 496; 845
    NW2d 540 (2013).
    III. RESPONDENT-MOTHER
    A. STATUTORY GROUNDS
    In Docket No. 343470, respondent-mother first argues that there was not clear and
    convincing evidence to support the statutory grounds for termination. Respondent-mother’s
    parental rights were terminated under MCL 712A.19b(3)(c)(i), (g), and (j), which provided the
    following at the time of the termination:
    -2-
    (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.
    * * *
    (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.
    A parent’s failure to comply with his or her service plan is evidence that the parent will
    not be able to provide a child with proper care and custody and that the child may be harmed if
    returned to the parent’s home. In re White, 
    303 Mich. App. 701
    , 710-711; 846 NW2d 61 (2014).
    The children, ages 11 and 5 at the time of the termination hearing, were brought into care
    because respondents had failed to provide proper care and custody for them. Respondent-mother
    pleaded to the allegations in the petition that set forth incidents of child neglect, improper
    supervision, drug overdoses, fear that a child had obtained a bag of heroin, and domestic
    violence. While her children were in foster care, respondent-mother was convicted of two
    separate crimes, one involving assault and battery and the other a financial transaction device,
    which resulted in her being placed on probation. She continued her use of illegal drugs. She did
    not address the domestic violence that occurred in her relationship with respondent-father. Her
    failure to comply with the requirements of the treatment plan provided clear and convincing
    evidence that there was no reasonable expectation that she would be able to provide proper care
    and custody for the children within a reasonable time considering their ages.
    Our review of the record evidence reveals that respondent-mother, despite having 15
    months of services, failed to comply or address the issues which led to the trial court taking
    jurisdiction of this matter. Her continued denial that she had any problems with illegal drugs or
    domestic violence, and her subterfuge in trying to dilute her drug screens and have unauthorized
    visitation with the children, ultimately led to the trial court correctly concluding that respondent-
    mother had not advanced to a place where she could be trusted with unsupervised visitation.
    Although respondent-mother admitted an earlier domestic violence incident, she denied a more
    recent incident where she had attacked an ex-girlfriend of respondent-father. Additionally, the
    trial court noted that respondent-mother refused to engage in domestic violence counseling.
    Throughout the case, respondent-mother continued to use illegal substances. Although she
    -3-
    attended many drug screens, she tested positive numerous times, even while she was
    participating in a methadone program. The trial court’s reiteration of her drug screen history
    during this case tells the story of a person who never stopped using illegal substances for more
    than a short period of time and never was able to overcome her substance abuse issues. Despite
    the fact that respondent-mother never missed a visitation, maintained housing that would be
    suitable for the children3, and partially complied with the requirements of the treatment plan, she
    was never trusted with unsupervised visitation. Based on the record before us, the trial court did
    not err when it found that the conditions that led to the adjudication continued to exist. And, as
    the trial court aptly noted, although respondent-mother attended all visitation (though at one
    visitation she slept) and demonstrated her love for her children, during the 15 months this case
    was pending in the trial court, respondent-mother never addressed the issues that led to the
    adjudication. The trial court found clear and convincing evidence to support the conclusion that
    there was no reasonable likelihood that the conditions would be rectified within a reasonable
    time considering the children’s ages. Following our review of the record, we cannot find any
    error in the trial court’s findings. Therefore, we hold that the trial court did not clearly err in
    finding clear and convincing evidence to support termination under MCL 712A.19b(3)(c)(i).
    B. BEST INTERESTS
    Next, respondent-mother contends that the trial court clearly erred in finding by a
    preponderance of the evidence that termination of her parental rights was in the best interests of
    the children.
    In making the best-interest determination, the trial court may consider such factors as
    “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.” In re
    Olive/Metts Minors, 
    297 Mich. App. 35
    , 41-42; 823 NW2d 144 (2012) (internal citations omitted).
    Other considerations include the length of time the child has been in foster care or placed with
    relatives, the likelihood that “the child could be returned to her parents’ home within the
    foreseeable future, if at all,” and compliance with the case service plan. In re Frey, 297 Mich
    App 242, 248-249; 824 NW2d 569 (2012).
    [O]nce a statutory ground for termination is established, i.e., the parent has been
    found unfit, the focus shifts to the child and the issue is whether parental rights
    should be terminated, not whether they can be terminated. Accordingly, at the
    best-interest stage, the child’s interest in a normal family home is superior to any
    interest the parent has. [In re 
    Moss, 301 Mich. App. at 88-89
    (emphasis in
    original).]
    In making its best interest determination, the trial court took into consideration the
    parent’s parenting ability, In re Jones, 
    286 Mich. App. 126
    , 129-130; 777 NW2d 728 (2009), the
    3
    Although the trial court noted that respondent-mother had maintained suitable housing for the
    minor children, the question was left open as to whether respondent-father was living there and
    conducting illegal narcotics sales out of the home.
    -4-
    child’s need for permanency, stability, and finality, In re VanDalen, 
    293 Mich. App. 120
    , 141-
    142; 809 NW2d 412 (2011), and the advantages of a foster home over the parent’s home, In re
    Foster, 
    285 Mich. App. 630
    , 634-635; 776 NW2d 415 (2009). “If the court finds that there are
    grounds for termination of parental rights and that termination of parental rights is in the child’s
    best interests, the court shall order termination of parental rights and order that additional efforts
    for reunification of the child with the parent not be made. MCL 712A.19b(5); see also MCR
    3.977(E)(4).” Olive/Metts 
    Minors 297 Mich. App. at 42
    . The trial court noted there was evidence
    of a very strong bond between respondent-mother and the children. As previously indicated,
    respondent-mother never missed a visit with her children, which demonstrated her strong
    feelings towards them. In addition, the chances for adoption of the 11-year-old child were not
    favorable given his age. However, there was clear and convincing evidence that the conditions
    that brought the children into care would not be rectified within a reasonable time and the
    children had been in foster care for almost 16 months. Respondent-mother had demonstrated
    that she would not seriously address her drug addiction problem. She continued to use illegal
    substances during the entirety of this case, other than for a few weeks. She attempted to dilute
    her drug screens and lied about her drug use. She had been convicted of two crimes while the
    children were in foster care, and one was an assaultive crime. She never addressed the domestic
    violence issues between her and respondent-father and even denied that they existed. Her failure
    to comply with her treatment plan was evidence that she would not be able to parent these
    children. Taking all of the trial court’s findings and the record evidence into consideration, we
    conclude that the trial court correctly found, by a preponderance of the evidence that termination
    of respondent-mother’s parental rights was in the best interests of the minor children.
    Accordingly, respondent-mother is not entitled to relief.
    IV. RESPONDENT-FATHER
    A. STATUTORY GROUNDS
    In Docket No. 343503, respondent-father raises the same issues raised by respondent-
    mother. He first contends that the trial court committed clear error in finding that statutory
    grounds for termination of his parental rights were established by clear and convincing evidence.
    Respondent-father’s parental rights were terminated under the same grounds as respondent-
    mother—MCL 712A.19b(3)(c)(i), (g), and (j).
    The respondent-father maintained employment and continued to financially support his
    children through payroll withdrawal and paying out-of-pocket expenses throughout this case. He
    also attended the hearings and every visitation except for when he was incarcerated, and there
    were no negative reports concerning his parenting. Nevertheless, as with respondent-mother, the
    trial court found that by clear and convincing evidence, the statutory grounds for termination of
    his parental rights were established.
    The conditions that existed regarding respondent-father when the children were removed
    were substance abuse, domestic violence, and improper supervision. Respondent-father never
    addressed these issues and did not comply with his treatment plan. In fact, the record reveals
    that respondent-father stopped working with DHHS after his last probation violation. Despite his
    failure to comply with any of his treatment plan, respondent-father argues that he always
    properly cared for his children. Perhaps in his mind that was so, however, the evidence showed,
    -5-
    and respondent-father admitted to the allegations, that the children were being cared for by
    respondent-father when the youngest child, then aged two, was found outside with no
    supervision and improperly dressed for the weather. Later both children were found outside at
    9:00 p.m. without adult supervision. Respondent-father acknowledged a domestic violence
    incident against respondent-mother in 2015, for which he was arrested, but denied that there had
    been any domestic violence involved in his relationship with respondent-mother since that time,
    despite the fact that he had pleaded guilty to domestic violence, incidents were noted in several
    police reports, and it was one of the convictions for which he was on probation.
    With regard to substance abuse, respondent-father continually denied his use of illegal
    drugs. However, in June 2017 he was arrested for possession of cocaine, oxycodone, and heroin,
    and he had $817 in cash on his person at the time. He tested positive for those drugs but
    contended that he tested positive for cocaine because he kissed his girlfriend and she used
    cocaine. After testing positive, he stopped doing drug screens, stating that they were incorrect.
    Then, at the termination hearing, he contended that he never had any drugs in his possession
    when he was arrested in June 2017, even though it was in the police report and he pleaded guilty
    to those charges.
    Furthermore, respondent-father never had his own residence. He did, however, provide
    DHHS with several addresses where he allegedly lived. When DHHS workers went to verify
    these addresses, none of the people present in the homes were familiar with respondent-father.
    Respondent-father admitted that maintaining suitable housing was one of the requirements
    placed on him for the return of the minor children to his care. During the pendency of these
    proceedings, because respondent-father never had suitable housing, he never had a place where
    he could bring his children. As previously indicated, although he testified that he did not live
    with respondent-mother after her home was designated as Section 8 housing, he was often found
    there, he gave that address to his probation officer, and the Drug Task Force witnessed several
    narcotics buys from him at that house before he was arrested.
    Although respondent-father attended visitations, he had never reached the point where he
    was granted unsupervised visitation. Whenever services were mentioned to him respondent-
    father stated that he was not interested and did not need them. Before the filing of the
    termination petition, he did not engage in any counseling or treatment program. After the
    petition for termination was filed, he signed up for domestic violence counseling and attended
    eight classes. For 15 months, petitioner offered and referred services, provided help, held family
    team meetings, and facilitated and supervised his visitation. During this time, respondent-father
    refused to participate in services or drug tests. It was a clear sign of his attitude towards his
    treatment plan that, at the termination hearing, he testified that he would comply if petitioner
    would “be willing to work with me,” i.e., do things his way. Only then, would he “try to take the
    test again.”
    The trial court took all of the factors into consideration and found that after 15 months,
    there was clear and convincing evidence that the conditions that led to the adjudication continued
    to exist and there was no reasonable likelihood that they would be rectified within a reasonable
    time considering the children’s ages. MCL 712A.19b(3)(c)(i). Based on our review of the
    record, we cannot find that such findings constituted error by the trial court.
    -6-
    In addition, there was clear and convincing evidence to support termination of
    respondent-father’s parental rights under MCL 712A.19b(3)(g) and (j). Respondent-father had
    failed to provide proper care and custody for his children and there was no reasonable
    expectation that he would be able to do so within a reasonable time considering the children’s
    ages. His failure to comply with his treatment plan was further evidence that he would not be
    able to provide his children with proper care and custody and that they may be harmed if
    returned to him. In re 
    White, 303 Mich. App. at 710-711
    . Respondent-father had done nothing
    during the time that his children were in foster care to demonstrate that he was ready or willing
    to accept his responsibilities and comply with the requirements to work toward reunification.
    Accordingly, we hold that the trial court did not clearly err in finding that clear and convincing
    evidence supported the statutory grounds for termination of respondent-father’s parental rights.
    B. BEST INTERESTS
    Next, respondent-father argues that the trial court clearly erred in finding that termination
    of his parental rights was in the best interests of the children. MCL 712A.19b(5); In re 
    Laster, 303 Mich. App. at 496
    ; In re 
    Moss, 301 Mich. App. at 88-90
    ; In re 
    Hudson, 294 Mich. App. at 264
    .
    In making its findings on best interests, the trial court noted that respondent-father had a
    strong bond with the children. He attended all visits except when he was incarcerated. There
    were no negative reports about his appropriateness with the children. Although it was apparent
    to the trial court that the children would be seriously negatively affected by the termination, the
    trial court noted there were there are other factors to consider. First, the foster parent, a relative,
    would not be a candidate for guardianship because she was concerned about the hostile
    interactions of respondents toward her, and no other name had been mentioned. Additionally,
    respondent-father had demonstrated throughout this case that he would not comply with the
    requirements for reunification; he would only do what he wanted to do, which was to work and
    to visit the children. He would not accept the consequences of his own actions or address his
    lifestyle. He would not drug test, attend programs, or participate in counseling. He waited until
    after the termination petition was filed to attend a domestic violence class. In addition, he was
    not a credible witness. There was no likelihood that the children could be returned to him within
    the foreseeable future, if at all. He gave petitioner and the trial court no reason to believe that he
    would change his attitude and start to comply if provided more time.
    The children had already been in limbo for 15 months. At this stage in the proceedings,
    their needs superseded any interest respondent-father had in maintaining parental rights. The
    children were entitled to stability, permanency, and safety. Based on this record, the trial court
    did not clearly err in finding that a preponderance of the evidence established that termination of
    respondent-father’s parental rights was in the best interests of the children.
    Affirmed.
    /s/ Mark J. Cavanagh
    /s/ Stephen L. Borrello
    /s/ James Robert Redford
    -7-
    

Document Info

Docket Number: 343503

Filed Date: 2/19/2019

Precedential Status: Non-Precedential

Modified Date: 4/17/2021