in Re N Miller Minor ( 2018 )

STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
In re N. MILLER, Minor. August 14, 2018
No. 341344
Calhoun Circuit Court
Family Division
LC No. 2015-003494-NA
Before: MURPHY, P.J., and GLEICHER and LETICA, JJ.
PER CURIAM.
The circuit court terminated respondent-mother’s parental rights to her two-year-old
daughter, NM, based on respondent’s continuing drug use and untreated mental health issues.
Respondent failed to benefit from services and refused offers to provide more intensive
assistance. We affirm.
I. BACKGROUND
Respondent was 16 years old when she gave birth to NM. By that time, respondent had
received multiple mental health diagnoses, including bipolar disorder, borderline personality
disorder, anxiety, and post-traumatic stress disorder. In the first six weeks of NM’s life, Child
Protective Services (CPS) was contacted five times. Respondent had physically assaulted both
of her grandparents, her younger brother, and NM’s father. When respondent attacked her
boyfriend, she was holding the baby. Respondent had also threatened to commit suicide and
abandon NM if her boyfriend ended their relationship. As a result of these conditions, the
Department of Health and Human Services (DHHS) filed a petition to take NM into care.
Respondent admitted to several grounds in the petition, including that she was arrested
twice for physically assaulting her grandparents and had been diagnosed with several mental
health disorders. The DHHS initially placed NM in nonrelative foster care. However, upon
respondent’s plea, the court returned NM to respondent’s custody on the condition that
respondent live with her mother. Three months later, the DHHS filed an emergency petition to
remove NM from respondent’s care. Respondent’s mother had evicted her and she was then
homeless. Respondent reported that she did not feel safe living with her mother but also
admitted that she did not have the means to care for her child.
A month later, the court noted that respondent was not complying with her case service
plan and given respondent’s young age, changed the goal from reunification to adoption. The
court held a termination hearing on January 10, 2017, but had a change of heart. The court then
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allowed respondent additional time to comply with and benefit from services. The court again
noted respondent’s young age, but also cited respondent’s problems with Medicaid rendering her
ineligible for certain services and her past attempts to comply with services.
Another five months later, however, respondent admitted to refusing to take her
prescribed psychotropic medications. Respondent instead self-medicated with marijuana. She
had lost a part-time job at McDonald’s and was working at a strip club. During her employment,
she attempted to buy a drug called Molly from a coworker, who gave her methamphetamine
instead. Respondent then added meth addiction to her list of troubles. Additionally, respondent
had physically assaulted her younger brother, biting him on the chest and drawing blood. As she
was then an adult, respondent was placed on the central registry for child abuse.
Throughout the proceedings, respondent was assisted by case worker Breanna Kevil.
Kevil worked closely with respondent because of her young age and mental health issues. She
personally contacted service providers on respondent’s behalf. She tried to convince respondent
to get her GED, but respondent declined. Kevil even drove respondent to parenting sessions and
other appointments. Despite respondent’s completion of parenting classes, Kevil noted no real
improvement in her interactions with NM during supervised parenting time. Respondent once
cried for 12 minutes while NM watched. On another occasion, respondent told young NM that
she was going to take her away. Ultimately, the parent-child bond was “not good.” NM tried to
escape the room during visits and would cry inconsolably. On the night after visits, NM would
scream, pull out her hair, and scratch herself. As a result of these difficulties, the court
suspended parenting time in July 2017.
Kevil and other service providers also tried to assist respondent in other ways. Kevil
repeatedly warned respondent that her Medicaid benefits were set to expire and attempted to help
her fill out her paperwork, but respondent refused. She refused additional offers of help from
three separate service providers to restart the Medicaid process. Throughout the proceedings,
respondent declined to attend substance abuse counseling. Respondent missed the majority of
her random drug screens and when she did appear, she often tested positive for marijuana or
meth. She admitted at the termination hearing that she remained addicted to meth but claimed
she was attending an outpatient rehabilitation program. Kevil had twice referred respondent to a
Transition-to-Independence program, but she was discharged for refusing to meet with her
counselors. Respondent declined Kevil’s offer to teach her budgeting skills.
Respondent did attend mental health counseling. However, she took her prescribed
medication only once and then determined that it would not help her and stopped. Respondent
continued to self-medicate with marijuana throughout the proceedings despite that she had not
secured her medical marijuana card. At the termination hearing, respondent repeatedly indicated
that she would not discontinue using marijuana. Only after repeated questions did respondent
agree that she would stop using marijuana if necessary for the return of her child.
The court terminated respondent’s parental rights in October 2017, citing respondent’s
untreated mental health issues and continuing substance abuse. Despite months of services,
respondent had shown no improvement in parenting skills and lacked a safe and stable home for
herself and her child. Accordingly, the court terminated respondent’s parental rights pursuant to
MCL 712A.19b(3)(c)(i), (g), and (j).
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II. STATUTORY GROUNDS
Respondent challenges the evidentiary basis for terminating her parental rights. 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). We
review a circuit court’s factual finding that a statutory termination ground has been established
for clear error. 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).
In terminating respondent’s parental rights, the court cited MCL 712A.19b(3)(c)(i), (g),
and (j), which provide:
(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.
The DHHS supported termination under factor (c)(i). NM had been in care for nearly 18
months by the time of the termination trial and respondent had been receiving services for almost
two years. Despite these services, the conditions that led to adjudication persisted. Respondent
still declined treatment for her severe mental health issues. Respondent refused to take her
prescribed medication and instead self-medicated with marijuana even though she did not
possess a medical marijuana card. Respondent continued to exhibit angry outbursts as a result of
her untreated mental health issues and had been placed on the central registry for physically
attacking her younger brother. And respondent had become addicted to meth during the
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proceedings, exacerbating rather than eliminating the substance abuse problems that led to
adjudication.
Termination was further supported under factor (g). Respondent incorrectly cites a newly
amended version of this statutory factor that did not take effect until June 12, 2018. See 2018
PA 58.1 At the time of respondent’s proceedings, a parent’s intent in failing to provide adequate
care and custody for his or her child was irrelevant. The record evidence supports that
respondent had not provided proper care and custody for NM and would be unable to do so
within a reasonable time. Respondent had custody of NM for the first six weeks of her life, but
was unable to adequately care for the child given her untreated mental health issues.
Respondent’s refusal to accept mental health treatment led to her eviction from her mother’s
home and the re-removal of NM from her care. Respondent continued to refuse to take her
prescribed medication and instead used marijuana. Although respondent attended parenting
classes, she exhibited no benefit. As a result, respondent’s supervised parenting time sessions
continued to go badly and were ultimately suspended. By the time of the termination hearing,
respondent was still substituting marijuana for her prescribed medication, was still addicted to
meth, and had yet to benefit from mental health and substance abuse counseling. Accordingly,
the court did not err in finding that respondent would be unable to provide proper care and
custody for her child within a reasonable time.
Finally, termination was supported under factor (j). Respondent had exhibited violent
behavior toward her grandparents, her younger brother, and her boyfriend. Respondent
attempted to assault her boyfriend while holding NM. As noted, by the time of the termination
hearing, respondent still was not taking her psychotropic medication. She had recently assaulted
her younger brother. Moreover, respondent continued to use marijuana and remained addicted to
meth, ensuring that she would not be able to safely raise her child in the near future.
III. BEST INTERESTS
Respondent further contends that termination of her parental rights was not in NM’s 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-
1
The newly enacted MCL 712A.19b(3)(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.”
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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). The court
may also consider the likelihood that “the child could be returned to her 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 in the proceedings, the best interests of the child in having “a normal family home
is superior to any interest the parent has.” Moss, 301 Mich. App. at 89.
In finding that termination of respondent’s parental rights was in NM’s best interests, the
court noted that NM was “in an extremely stable home” and that her foster parents wished to
adopt. NM had been placed in that home at six weeks old and had only been returned to
respondent’s care for three months since that time. NM was “thriving in that home” and
considered her caregivers to be her parents. The court acknowledged that respondent’s focus on
her child was likely the only thing preventing her from completely “spiral[ling] downward.”
However, the court correctly noted that the focus in the best interest determination is on the child
and not the parent. Respondent had not complied with her service plan, had not addressed her
mental health issues, and remained addicted to marijuana and meth. Given this record, we
discern no error in the lower court’s conclusion that termination of respondent’s parental rights
was in her daughter’s best interests.
IV. ADEQUACY OF SERVICES
Finally, respondent contends that the DHHS failed to provide adequate reunification
services. The right time to object to the adequacy of services is when those services are
provided. Frey, 297 Mich. App. at 248. In this case, however, the DHHS did provide adequate
services, despite respondent’s failure to object or to request more in-depth assistance.
“Reasonable efforts to reunify the child and family must be made in all cases” except
under certain circumstances not present in this case. MCL 712A.19a(2). When a parent suffers
from a disability, the DHHS must make “reasonable modifications to the services or programs
offered” to accommodate that disability and give the parent an opportunity to benefit and
succeed. In re Hicks/Brown, 500 Mich. 79, 86; 893 NW2d 637 (2017). The DHHS met its
burden in this case.2
Kevil testified that she went above and beyond to assist respondent in complying with her
service plan and achieving her goals. Kevil recognized that respondent was extremely young
and suffered from several mental health conditions that impaired her ability to singlehandedly
tackle her plan. Kevil contacted service providers on respondent’s behalf, attempted to help her
find housing, and personally drove her to parenting time sessions. Kevil and other service
providers offered on several occasions to provide additional in-depth assistance with completing
tasks, but respondent refused. Although the DHHS “has a responsibility to expend reasonable
2
We note that the court also recognized respondent’s personal need for more individualized
assistance. Early in the proceedings, the court changed the goal from reunification to adoption of
NM, but later granted respondent additional time to comply with her service plan.
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efforts to provide services to secure reunification, there exists a commensurate responsibility on
the part of respondents to participate in the services that are offered.” Frey, 297 Mich. App. at
248. The service providers reached out their hands but respondent would not take them.
Ultimately, the DHHS provided respondent with two referrals to TIP, a referral to a
parent bonding program, two psychological evaluations, individual counseling, medication
reviews, random drug screens, substance abuse services, supervised parenting time, parenting
classes, and in-home therapy. Respondent was discharged from multiple services for failure to
participate and cooperate. She frequently failed to appear for drug screens and only started
substance abuse counseling on the eve of termination. Respondent completed a parenting skills
class but showed no benefit. Even with the additional help provided by Kevil, respondent simply
did not take her services plan seriously.
We affirm.
/s/ William B. Murphy
/s/ Elizabeth L. Gleicher
/s/ Anica Letica
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