in Re E W Pops Minor ( 2017 )

STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
In re E. W. POPS, Minor. November 14, 2017
No. 337000
Ingham Circuit Court
Family Division
LC No. 14-000732-NA
Before: M. J. KELLY, P.J., and RONAYNE KRAUSE and BOONSTRA, JJ.
PER CURIAM.
Respondent appeals as of right from an order terminating his parental rights to EP, his
son, under MCL 712A.19b(3)(c)(i), (c)(ii), (g), and (j). Because the trial court did not err by
terminating respondent’s parental rights, we affirm.1
I. BASIC FACTS
EP came into care in June 2014 after respondent was pulled over for fleeing and eluding a
police officer while EP, then nine months old, was in the backseat. The police discovered
marijuana and a scale in the vehicle when respondent finally pulled over. Respondent pleaded
no contest to having fled from the police while his son was in the backseat, and the trial court
assumed jurisdiction over EP. In July 2014, at the initial dispositional hearing, petitioner
recommended that respondent participate in random drug screens, a substance abuse evaluation,
parenting classes, and obtain employment, and the trial court adopted petitioner’s
recommendations. While the case was proceeding, respondent was incarcerated, and the court
and petitioner had some concerns about his participation in services. In April 2015, the trial
court ordered petitioner to initiate proceedings to terminate respondent’s parental rights.
Following a July 2015 termination hearing, the trial court found that there was clear and
convincing evidence to terminate respondent’s parental rights under MCL 712A.19b(3)(c)(i),
(c)(ii), (g), and (j). Respondent appealed to this Court, which reversed the termination decision
after concluding that termination was improper under subsection (c)(i) and (g) because an
incarcerated parent can provide proper care and custody by placing the child with a relative, and
1
The trial court also terminated the parental rights of EP’s mother. She has not appealed that
decision.
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although respondent had sought placement of the child with the child’s grandmother, petitioner
failed to properly consider whether the grandmother could become a licensed foster-care
provider. In re Pops, 315 Mich. App. 590, 594-598; 890 NW2d 902 (2016). This Court also
found that termination was improper under subsections (c)(i) and (g) because—contrary to the
trial court’s findings—respondent had participated in services on a meaningful level before he
was incarcerated. Id. at 598-599. In regard to MCL 712A.19b(3)(j), this Court found that the
trial court improperly terminated respondent’s parental rights because petitioner did not present
any evidence that respondent had ever harmed his child or was likely to do so. Id. at 600-601.
Following this Court’s June 2016 reversal of the order terminating respondent’s parental
rights, respondent was again offered services by petitioner, including substance abuse
counseling, random drug screens, parenting time, and individual therapy. Petitioner also re-
considered EP’s grandmother as a placement.2 The record reflects that respondent missed a few
parenting time sessions. Further, as the sessions continued, he appeared to be less engaged with
EP. A family therapist testified that respondent appeared to be distracted by his cell phone
during the sessions. She also testified that, although EP had some difficulty during the sessions
following the restoration of respondent’s parental rights, he was eventually able to identify
respondent as a father figure. However, she did not believe the bond developed to “the point that
I would like it where we would want the strength of, um, parent/child relationships to be.” With
regard to the individual counseling, respondent participated in three sessions, during which he
denied having a history of or problems with substance abuse. Respondent missed two sessions
with his individual counselor. At the termination hearing, the counselor testified that he was
informed by petitioner that respondent was going to participate in substance abuse services
through a different provider, so no additional sessions were offered. With regard to substance
abuse, petitioner presented evidence that since having his parental rights restored, respondent
missed nine random drug screens, tested positive five times for marijuana, and only attended one
substance abuse counseling session.
There was also testimony that respondent was being overwhelmed by the requirements of
the case, and he missed or was unable to fully participate in some services because they
conflicted with his work schedule. His caseworker testified that she attempted to work with him
to make the services less overwhelming, but she stated that he was not satisfied with any plans
that she could come up with. His caseworker also testified that she located a parenting class for
respondent to attend, but, by the time she located the class and heard back from respondent, it
was too late for him to start. She stated that she told respondent that he could just participate in
the next session of parenting classes that was offered. Respondent was also offered a
psychological evaluation, but only attended two out of the four hours required to fully complete
it.
2
EP’s grandmother opted not to pursue having EP placed with her because she was providing
housing to respondent.
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At the termination hearing, respondent testified that he was living with his mother and
that there was room for EP. He also testified that he had obtained fulltime employment
approximately a week after being released from incarceration. Respondent explained that he had
only attended one substance abuse therapy session because his employment made it difficult for
him to get there on time. He also stated that he was told he could “finish up” the psychological
evaluation at a later time and that the doctor would contact him about it but failed to do so.
Respondent indicated that he was willing to participate in parenting classes and stated that he
attended parenting times twice a week. Respondent explained that he used his cell phone during
parenting time to interact with EP by watching videos on it together. Respondent denied other
use of his phone during parenting time except for work-related calls. Respondent testified that
he wanted custody and felt that he was ready. Finally, respondent denied using substances and
stated that he was complying with services “as much as I can.”
The trial court found that termination of respondent’s parental rights was proper under
MCL 712A.19b(3)(c)(i), (c)(ii), (g), and (j), and that termination of respondent’s parental rights
was in EP’s best interests.
II. STATUTORY GROUNDS
A. STANDARD OF REVIEW
This Court reviews a determination of whether statutory grounds exist to terminate
parental rights for clear error. In re Trejo, 462 Mich. 341, 356-357, 373; 612 NW2d 407 (2000).
B. ANALYSIS
Termination under MCL 712A.19b(3)(c)(i) requires a finding that “182 or more days
have elapsed since the issuance of an initial dispositional order,” “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.” The trial court found that 182
days or more had elapsed since the initial dispositional order in 2014 and that respondent had
failed to rectify his substance abuse or benefit from substance abuse services. EP came into care
after respondent fled for 14 blocks from the police while EP was in the vehicle. Thereafter, the
police found marijuana in the vehicle. Thus, one of the initial barriers to reunification was
substance abuse.
Following this Court’s remand to the trial court for further proceedings, respondent was
scheduled for random drug screens. On five occasions, he tested positive for marijuana. He also
missed nine screens, which were counted as positive screens. Respondent denied using
marijuana and made excuses for why he tested positive. For example, he testified that he may
have tested positive because his girlfriend used marijuana and he had kissed her. In addition,
although respondent was scheduled to participate in substance abuse therapy, he only
participated in one session. At the termination hearing, he testified that he only attended one
session because his employment made it difficult to get to the therapy sessions on time.
However, despite respondent’s explanations for why he tested positive and why he was unable to
attend more than one substance abuse counseling session, the record shows that substance abuse
continued to be a problem. EP came into care when he was nine months old. At the time of the
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second termination hearing, he had been in care for about 31 months. Given respondent’s failure
to rectify his substance abuse issues during that 31-month period, and given that he was denying
even having a substance abuse problem despite testing positive for marijuana on multiple
occasions, the trial court did not clearly err by finding termination was proper under MCL
712A.19b(3)(c)(i).3
Affirmed.
/s/ Michael J. Kelly
/s/ Amy Ronayne Krause
/s/ Mark T. Boonstra
3
Because only one statutory ground need be found by clear and convincing evidence, In re
Olive/Metts, 297 Mich. App. 35, 41; 823 NW2d 144 (2012), we need not address whether
termination was proper under MCL 712A.19b(3)(c)(ii), (g), and (j).
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