In Re a R Nethaway Minor ( 2022 )

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UNPUBLISHED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 A. R. NETHAWAY, Minor. June 16, 2022
No. 359418
Clinton Circuit Court
Family Division
LC No. 19-028871-NA
Before: GLEICHER, C.J., and SAWYER and GARRETT, JJ.
PER CURIAM.
The circuit court terminated respondent-father’s parental rights after he failed to cooperate
with services for more than two years. Respondent now contends that termination was not in the
child’s best interests and argues that the court should instead have placed his daughter in a
guardianship instead. Respondent does not have a relationship with his child and made only
minimal efforts to address the many barriers to reunification. Under these circumstances, a
guardianship was not warranted. We affirm.
I. BACKGROUND
AN was born on July 3, 2014 to KN. Her paternity was in question and respondent-father
did not meet AN until she was four. At that time, respondent was on probation in his home state
of Ohio after serving part of his sentence for a 2016 domestic violence incident. Respondent left
Ohio without permission and moved in with KN and AN in Michigan from December 2018
through January 2019. However, KN’s grandmother evicted respondent from the home for
fighting with KN. Respondent had no contact with AN thereafter, until the Department of Health
and Human Services (DHHS) intervened in KN’s home. In June 2019, KN was hospitalized and
she left AN with her maternal aunt and uncle, the Robinsons. The Robinsons had previously had
a guardianship of AN. Respondent quickly signed an acknowledgment of paternity and he was
given a supervised face-to-face parenting-time session in Michigan. The visit initially went well
until AN remembered an incident of domestic violence she had witnessed between her parents.
Respondent made little effort to cooperate with the DHHS throughout these proceedings.
He advised the DHHS that he had completed parenting classes and other services while
incarcerated in 2016, and did not understand why he had to participate in services related to this
case. Despite that recreational marijuana use is illegal in Ohio, respondent admitted to smoking
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marijuana “24/7” for chronic pain and did not have a valid medical marijuana card. Respondent
did not believe he had a substance abuse problem and begrudgingly agreed to cease use if ordered
by the court. Respondent also admitted that he had fathered a total of nine children, none of whom
were in his care. He did not provide child support for any of his children and had minimal
involvement in most of their lives. His youngest child, G, had been removed from her mother’s
care in Ohio and respondent had weekly unsupervised visits with her. The Ohio equivalent of the
DHHS had not given respondent overnight visits because he was living in a pole barn without
running water, an environment deemed unsafe for a child.
From the start of these proceedings, respondent’s attendance and participation were
sporadic. In the fall of 2019, respondent was briefly incarcerated for a probation violation. He
lived three hours away from the Clinton Circuit Court and his driver’s license had been suspended.
Respondent drove anyway, but missed hearings because of unreliable transportation. On one
occasion, respondent falsely told the court that his probation officer would not allow him to attend.
AN’s therapist recommended supervised phone or video visits, instead of in-person, until
AN felt more comfortable with respondent. Respondent engaged in these visits, although they
were short given the child’s age. He also submitted to a psychological evaluation, which revealed
likely narcissistic antisocial disorder, bipolar disorder, and substance abuse issues. The
psychologist opined that respondent was “likely to not conform to the social norms and pretty
much do what he wants rather than follow the generally accepted social norms” and had “issues
with authority figures.” The DHHS ordered respondent to participate in counseling to address his
mental health and substance abuse issues, submit to random drug screens, and complete another
parenting class. Respondent complied with the parenting class requirement but had difficulty
coordinating the others with his health insurance and providers in his area.
When the pandemic struck in March 2020, respondent’s performance under his service
plan became even worse. He stopped attending video parenting-time session and has had no
contact with AN since April 2020. The court suspended respondent’s parenting time until he
appeared before the court to explain his inconsistency. Respondent refused to participate in video
counseling sessions and became hostile with the clinic’s employees, leading to his discharge from
services in May 2020. Respondent’s grandmother evicted him from the pole barn on her property
and he moved in with a friend. Respondent stopped communicating with the DHHS because he
accused them of kidnapping AN and holding her hostage. He tried to fire his court-appointed
attorney and stopped taking his calls. Then in August 2020, respondent was arrested for felonious
assault. During the arrest, the police found residue-covered drug paraphernalia and several guns
in the home.
Given the limited progress of both parents, the DHHS changed its goal and sought
termination of both parents’ rights. A termination hearing was conducted in September 2020, but
the court declined to terminate mother’s rights because she had begun to show progress again. On
March 5, 2021, AN was returned to KN’s care and custody. Things went very well until April 30,
2021, when KN suddenly passed away. AN returned to the Robinsons’ home at that point and
began a new round of counseling to address her grief.
The court adjourned respondent’s September 2020 termination hearing in the hope
respondent could be physically present in the near future. However, respondent pleaded guilty in
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Ohio to felonious assault and was sentenced a minimum term of 2½ years imprisonment, and his
earliest release date is February 2023. The DHHS encouraged respondent to participate in services
in prison, and he later began a cognitive-behavioral therapy counseling program. In the meantime,
however, respondent started writing letters to AN that could not be delivered because of the
suspension of his parenting time. His phone conversations with DHHS workers were ineffectual,
with respondent either trying to convert the workers to his “flat-earth” beliefs or screaming at the
workers for kidnapping his daughter. Respondent used postage-paid envelopes sent to him by the
DHHS to submit bizarre articles about subjects irrelevant to his case.
Upon learning that no writ could be secured to transport respondent from his Ohio prison
to Michigan for a termination hearing, the court determined that the proceeding must be conducted
by video. Respondent refused to participate, leaving the prison’s polycom room and returning to
his cell. The court heard testimony from a caseworker and her supervisor about respondent’s
limited participation in and lack of benefit from services. They described that despite having
sufficient funds to do so, respondent never secured appropriate housing, impacting not only this
case but also his bid for custody of G. The witnesses further detailed respondent’s poor attendance
at parenting time and failure to meaningfully address his mental health and substance abuse issues.
Respondent’s continued criminality was also a main concern.
The circuit court ultimately terminated respondent’s parental rights under MCL
712A.19b(3)(c)(ii) (failure to rectify barriers to reunification that arose after the filing of the initial
petition), (g) (failure to provide proper care or custody despite being financially able to do so), (h)
(imprisonment for such a period that the child will be deprived of a normal home life for a period
exceeding two years), and (j) (reasonable likelihood the child will be harmed if returned to the
parent’s home). The court further determined that termination of respondent’s parental rights was
in AN’s best interests. The court noted that the Robinsons were willing to provide permanence
for AN through adoption. Although AN was in relative placement, the court declined to pursue a
guardianship as respondent had no real relationship with AN and had never provided support. The
court noted that respondent “is hostile and difficult to deal with and he’s provided no continuity,”
a poor combination with AN’s need for strong emotional support. Terminating respondent’s rights
would have no impact on AN’s family ties, the court determined. AN had no relationship with
respondent’s other children and the Robinsons could continue a relationship with AN’s paternal
grandmother if they deemed it in the child’s best interests.
II. ANALYSIS
Respondent does not challenge the statutory grounds supporting termination. Instead, he
focuses on the court’s best-interest analysis. Respondent contends that he demonstrated his desire
to have custody of AN by completing parenting classes while incarcerated before these
proceedings even began and later beginning substance abuse and mental health services. He
emphasizes that he advocated for face-to-face, rather than virtual, parenting time so he could
develop a bond with AN. Moreover, respondent urges, as AN is in the care of maternal relatives,
the parent-child bond could have been fostered during a guardianship.
“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
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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 76, 90; 836 NW2d 182 (2013). We review the court’s
factual findings in this regard for clear error. In re JK, 468 Mich 202, 209; 661 NW2d 216 (2003).
When determining whether termination is in the best interests of the children, the focus is
on the child, not the parent. In re Schadler, 315 Mich App 406, 411; 890 NW2d 676 (2016).
Factors relevant to the best-interest determination include “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.” Olive/Metts, 297 Mich App at 41-42
(citations omitted). “The trial court may also consider a parent’s history of domestic violence, the
parent’s compliance with his or her case service plan, the parent’s visitation history with the child,
the children’s well-being while in care, and the possibility of adoption.” In re White, 303 Mich
App 701, 714; 846 NW2d 61 (2014). “[T]he likelihood that the child could be returned to her
parents’ home within the foreseeable future, if at all,” is also relevant. In re
Payne/Pumphrey/Fortson, 311 Mich App 49, 64; 874 NW2d 205 (2015) (quotation marks and
citation omitted).
“[T]he fact that the children are in the care of a relative at the time of the termination
hearing is an explicit factor to consider in determining whether termination was in the children’s
best interests.” Olive/Metts, 297 Mich App at 43 (quotation marks and citation omitted). Under
the right conditions, a court may forego termination and instead place the child in a guardianship.
A guardianship allows the children “to keep a relationship with the parent when placement with
the parent is not possible.” In re TK, 306 Mich App 698, 705; 859 NW2d 208 (2014). However,
a circuit court is not required to establish a guardianship in lieu of terminating parental rights if it
is not in the child’s best interests to do so. MCL 712A.19a(9)(c); In re COH, 495 Mich 184, 197;
848 NW2d 107 (2014); TK, 306 Mich App at 704-705.
The circuit court did not err in finding that termination is in AN’s best interests.
Respondent is an absentee father who put his own interests before those of his child. Respondent
did not meet AN until she was four years old. After respondent and KN broke up in January 2019,
respondent did not maintain contact with AN. During these child protective proceedings,
respondent visited AN in person only once. The court permitted supervised phone and video visits
to foster the parent-child relationship given that respondent lived three hours away. Respondent
missed many of those visits. Despite that he had earlier requested telephonic visits in lieu of in
person, respondent participated in only one video visit at the start of the pandemic. Respondent
claimed that COVID was a government hoax, the DHHS had lied about his marijuana use, and the
DHHS had kidnapped his child. Respondent turned the focus on himself and refused to participate
in the proceedings and his child’s life because he felt he was treated unfairly. As a result of his
own behavior, respondent has no relationship or bond with AN.
Respondent similarly declined to address the barriers to reunification based on his personal
feeling of inequity. Respondent took no responsibility for AN being in care, shifting all blame on
KN. Respondent refused to acknowledge that his absence left AN unprotected. As respondent
saw himself as blameless, he was frustrated by the services he was required to participate in. While
respondent eventually took a parenting class, he delayed counseling services. Although
respondent’s psychological evaluation revealed several major areas of concern, respondent refused
to address those issues. He began substance abuse counseling, but continued to smoke marijuana
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“24/7” and saw no need to stop. And again, respondent refused to continue these services after
they were adjusted for COVID protocols.
Respondent also knew that he needed to find housing suitable for a child. Respondent was
gainfully employed for a large portion of the proceedings and had adequate funds to rent a
residence. Yet respondent never did so. He continued to live in a pole barn with no bathroom and
no bedroom for a child until his grandmother had him removed.
Further, respondent’s criminal behavior would put AN at risk if she was placed in his care.
Respondent acknowledged that he has a long criminal history dating back to his childhood.
Respondent did not see his juvenile history as problematic. Despite that his 2016 conviction arose
from stalking his wife and causing property damage at her boyfriend’s home, respondent
adamantly denied a history of domestic violence. Early in the proceedings, respondent repeatedly
violated the conditions of his probation and was reincarcerated.1 Respondent smoked marijuana
without a valid medical marijuana card in violation of Ohio law, and often drove without a valid
license. And then in August 2020, respondent committed another violent crime, resulting in a 2½-
year prison term.
Imprisoned and with time on his hands, respondent suddenly had a resurgence of parental
feeling and wrote several letters to AN. As his parenting time had been suspended, the caseworker
held these letters for later delivery. Beyond these letters, respondent continued to focus his energy
on challenging the system. He continued to believe that the DHHS had exceeded its authority and
screamed at the foster care supervisor on the phone. He researched his belief that the Earth is flat
and sent articles on this and other strange topics to the caseworker, instead of working on his
mental health and substance abuse issues.
Although AN is placed with relatives, she was only seven at the time of termination. She
required a permanent, stable home. AN could not wait in limbo for respondent to participate in
and benefit from services. It was not in AN’s best interests to place her in a guardianship, building
up hope that respondent would make necessary changes to safely parent his child. That termination
of respondent’s parental rights was in AN’s best interests was more than adequately supported.
We affirm.
/s/ Elizabeth L. Gleicher
/s/ David H. Sawyer
/s/ Kristina Robinson Garrett
1
Respondent insisted that he should not have been on probation in the first place and threatened
to call his senator to rectify the situation.
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