In Re Galvan Minors ( 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UNPUBLISHED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 GALVAN, Minors. October 13, 2022
No. 358615
Wayne Circuit Court
Family Division
LC No. 2019-001748-NA
Before: SWARTZLE, P.J., and CAVANAGH and REDFORD, JJ.
PER CURIAM.
Respondent-father1 appeals as of right the trial court’s order terminating his parental rights
to the minor children, EG and SG, under MCL 712A.19b(3)(b)(i) (parent’s act caused sexual abuse
and there is a reasonable likelihood of abuse in the future), (c)(i) (conditions that led to adjudication
continue to exist and will not be rectified within a reasonable time), (c)(ii) (other conditions exist
that have not been rectified), (g) (parent failed to provide proper care and custody), (j) (reasonable
likelihood of harm if child is returned to parent’s home), and (k)(ii) (parent abused the child, the
abuse included criminal sexual conduct involving penetration, and there is a reasonable likelihood
that the child would be harmed in the parent’s care).2 We affirm.
On September 25, 2019, a petition was filed by the Department of Health and Human
Services (DHHS) for temporary custody of RG, EG, and SG, asserting that it was contrary to the
welfare of the children to remain in the care and custody of respondent because of neglect,
abandonment, substance abuse, and improper supervision. The petition stated that Child Protective
Services (CPS) received a complaint on August 28, 2019, alleging improper supervision of RG
and EG after both children were taken to Children’s Hospital under the influence of Xanax. And
when respondent arrived to the hospital, he was obviously under the influence but refused a drug
screen. It was determined that respondent had an extensive CPS history dating back to 1997
1
When these proceedings began, the children’s mother was deceased; she died in 2013.
2
A third child, RG, was also at issue in these proceedings but she turned 18 years old by the time
the termination proceedings concluded, and thus, was not named in the final order. See MCL
722.52(1) (18 is the age of majority in Michigan).
-1-
(involving a son), an extensive criminal history dating back to 1986 (involving over 10 separate
incidents), and an extensive substance abuse history. Respondent admitted that he did not have
suitable housing for his children and that he was homeless. The children had been living with
respondent’s aunt and uncle, and respondent had not been providing any financial support for his
children despite receiving survivor benefits on behalf of the children and food stamps.
A preliminary hearing was held on September 25, 2019, and the petition was authorized.
Respondent had appeared for the hearing from jail. The CPS petitioner, Danielle King, testified
at the hearing that the children were living with respondent’s aunt and uncle. King testified that
two of the children, RG and EG, were taken to Children’s Hospital under the influence of Xanax
and respondent also appeared to be under the influence when he arrived at the hospital but refused
a drug test. King testified that respondent had prior services offered to him which were to address
parenting and substance abuse but respondent did not benefit from those services. King was
requesting supervised visitation for respondent if the court authorized the petition. She was also
requesting trauma screening and counseling for all three children, as well as documentation to
allow them to attend schools in the area where their grandparents live in Detroit. The children
would be living with their grandparents, where they had lived before, and with their half-brother.
King testified that there was nothing short of bringing this case to court that would keep these
children safe. The court held that it was clearly contrary to the welfare of the children to remain
in their home and the children were made temporary wards.
An amended petition, dated October 30, 2019, was filed which indicated that RG and EG
participated in forensic interviews at Kids-Talk and both disclosed that they knew respondent had
a history of abusing drugs, including heroin, and had seen respondent overdose on drugs. EG
admitted that she was with respondent one time when he purchased cocaine and she knew that
respondent was homeless. The petition also stated that respondent had an extensive criminal
history, including six convictions, five of which were felony convictions.
On December 3, 2019, a bench trial on the amended petition seeking temporary custody of
the children was conducted. The DHHS admitted the following exhibits: certified copy of
respondent’s convictions; certified copies of his drug screens from September 4 and 20, 2019; and
guardianship records. The CPS petitioner, Danielle King, testified at the hearing that respondent
had previously attempted to set up a guardianship for the children after the Children’s Hospital
incident but he was unsuccessful. Respondent told her that he was homeless. Respondent told
King that SG had been staying with his brother and sister-in-law since about September of 2018
and he was not providing any care or support for her. Respondent was in arrears on his child
support at least $20,000 he told King. Respondent told King that he was previously addicted to
Vicodin but he had not used substances in many years and did not ever overdose. King testified
that this family had an extensive CPS history with at least 17 contacts and at least three were
substantiated for respondent’s substance abuse. Respondent had previously been provided
referrals for substance abuse treatment but King was unaware if he completed treatment. King
testified that respondent’s substance abuse impaired his ability to care for these children. King
also testified that the children had lived with other relatives over the years, including their maternal
grandparents and their step-sister. At the conclusion of King’s testimony, statements were made
in support of the court taking temporary jurisdiction of the children, including that on September
-2-
20, 2019, respondent tested positive for hydrocodone and benzoylecgonine3 so it appeared that
respondent continued to use drugs. Further, respondent did not have suitable housing and the
children had not been in his care for a long time.
Thereafter, the trial court concluded that the evidence was sufficient for the court to
exercise jurisdiction and the children were made temporary wards of the court and the agency was
ordered to complete a parent-agency treatment plan. DHHS had a parent-agency treatment plan
already prepared and it was admitted as an exhibit. The plan provided for respondent to obtain
and maintain employment and suitable housing, participate and benefit from substance abuse
services, as well as participate in random drug screens and drug counseling therapy. The plan
further provided for respondent to take a psychological evaluation and follow the
recommendations, in addition to attending all scheduled parenting times, completing parenting
classes, attending court dates, and maintaining contact with DHHS.
On June 24, 2020, a dispositional review and permanency planning hearing was conducted.
Counsel for petitioner indicated that the conditions that brought the children into care had not been
rectified. SG and EG were placed with their maternal uncle, while RG was placed with her 19-
year-old sister. There were concerns with RG’s placement as she had been AWOL a few times
and was pregnant, expecting a child in December of 2020. Respondent was terminated from the
substance abuse program because of an inability to locate him. He was also ordered to comply
with drug screening and only submitted to one on January 30, 2020, which was positive for Xanax
and cocaine. Respondent failed to keep two appointments for a psychological examination and
was terminated by the service provider. Respondent also did not demonstrate appropriate
parenting skills and demonstrated an inconsistency with the visitations. Arrangements were made
for him to have parenting time closer to his home but he missed all scheduled visits. Respondent
only attended 2 of 14 parenting classes and he was terminated from the program twice due to
absences. His income and housing remained uncertain. He also was inconsistent with
communication with the foster care service workers and CPS. Respondent was deemed to be “in
complete non-compliance with everything in his Parent-Agency Treatment Plan.” The court
ordered a re-referral for all of the services and that respondent essentially start the parent-agency
treatment plan all over. The court found that the permanency plan was a concurrent plan for
reunification and guardianship for SG and EG with their uncle and his spouse. The permanency
plan for RG was changed to APPLA, i.e., Another Planned Permanent Living Arrangement which
is a stable living arrangement that includes relationships with significant adults in the child’s life.
RG was ordered to complete a trauma assessment and to participate in a maternal infant health
program.
On November 13, 2020, a dispositional review and permanency planning hearing was
conducted. The foster care worker, Porsha Smith, testified on behalf of petitioner and indicated
that the conditions that brought the children into care had not been rectified. Respondent had not
made any progress and was not in compliance with the parent-agency treatment plan. Smith
3
Benzoylecgonine is a compound excreted by the human body following consumption of cocaine.
See Hamilton, H.E., Cocaine and Benzoylecgonine excretion in humans. (J. Forensic Science,
October 1977). 301 Mich App 76, 80;
836 NW2d 182 (2013). A finding is clearly erroneous when we are left with a definite and firm
conviction that a mistake was made. In re Ellis, 294 Mich App 30, 33; 817 NW2d 111 (2011).
“In applying the clear error standard in parental termination cases, regard is to be given to the
special opportunity of the trial court to judge the credibility of the witnesses who appeared before
it.” In re Schadler, 315 Mich App 406, 408-409; 890 NW2d 676 (2016) (quotation marks and
citation omitted).
A trial court must terminate a parent’s parental rights if it finds that a statutory ground
under MCL 712A.19b(3) has been established by clear and convincing evidence and that
termination is in the child’s best interests. In re White, 303 Mich App 701, 713; 846 NW2d 61(2014). The trial court terminated respondent’s parental rights under MCL 712A.19b(3)(b)(i),
(c)(i), (c)(ii), (g), (j), and (k)(ii), which provide:
-7-
(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:
* * *
(b) The child or a sibling of the child has suffered physical injury or physical or
sexual abuse under 1 or more of the following circumstances:
(i) The parent’s act caused the physical injury or physical or sexual abuse and the
court finds that there is a reasonable likelihood that the child will suffer from injury
or abuse in the foreseeable future if placed in the parent’s home.
* * *
(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 . . .
(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.
(ii) Other conditions exist that cause the child to come within the court's
jurisdiction, the parent has received recommendations to rectify those conditions,
the conditions have not been rectified by the parent after the parent has received
notice and a hearing and has been given a reasonable opportunity to rectify the
conditions, and there is no reasonable likelihood that the conditions will be rectified
within a reasonable time considering the child’s age.
* * *
(g) 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.
* * *
(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.
* * *
(k) The parent abused the child or a sibling of the child, the abuse included 1 or
more of the following, and there is a reasonable likelihood that the child will be
harmed if returned to the care of the parent:
-8-
* * *
(ii) Criminal sexual conduct involving penetration, attempted penetration, or
assault with intent to penetrate.
If this Court concludes that the trial court did not clearly err by finding one statutory ground for
terminating respondent’s parental rights, this Court does not need to address the additional
statutory grounds in support of termination. In re HRC, 286 Mich App 444, 461; 781 NW2d 105(2009).
Respondent first argues on appeal that termination was improper because he “was willing
to complete a treatment plan and did not sexually abuse his daughter.” This argument is
unavailing.
Termination of parental rights is proper under MCL 712A.19b(3)(c)(i) when “the totality
of the evidence amply supports that [the parent] had not accomplished any meaningful change in
the conditions” that led to the court taking jurisdiction over the minor, In re Williams, 286 Mich
App 253, 272; 779 NW2d 286 (2009), and “there is no reasonable likelihood that the conditions
will be rectified within a reasonable time considering the child’s age,” MCL 712A.19b(3)(c)(i).
In this case, respondent—who had an extensive CPS history dating back to 1997 and thus was
familiar with child protective proceedings—was provided a parent-agency treatment plan in
December 2019. He was ordered to obtain and maintain employment and suitable housing, as well
as to participate in and benefit from parenting classes, substance abuse services that included drug
screens and drug counseling, and undergo a psychological evaluation and follow related
recommendations. Respondent was also required to attend all scheduled parenting times and court
dates, and to maintain contact with DHHS. Despite extensive services being offered to respondent
from December 2019 to the time he went to prison in January 2021, respondent was in complete
non-compliance with the parent-agency treatment plan—meaning he basically did almost nothing.
And not only did respondent fail to work toward reunification with his children, he also failed to
provide any financial support for them despite receiving money and food stamps as survivor
benefits for the children’s loss of their mother. That respondent was purportedly “willing to
complete a treatment plan” while he was in prison is of little to no consequence under the
circumstances of this case. The trial court did not clearly err in finding by clear and convincing
evidence that the conditions that led to the adjudication continued to exist and there was no
reasonable likelihood that the conditions would be rectified within a reasonable time considering
the children’s ages.
Respondent also challenges the grounds for termination that were based on his sexual
assaults against SG, denying that he sexually assaulted SG. Those grounds for termination
included MCL 712A.19b(3)(b)(i), (c)(ii), (g), (j), and (k)(ii). The trial court specifically found that
there was clear and convincing evidence that respondent sexually assaulted SG on three separate
occasions involving penetration and based on his conduct there was a reasonable likelihood that
both SG and EG would be harmed if returned to respondent’s care. The trial court did not err in
finding that termination was justified under these grounds. SG testified at length about
respondent’s sexual assaults—three incidents involving penetration—and the trial court found her
testimony credible. We afford due deference to the trial court’s judgment of the credibility of the
witnesses who appeared before it. See In re Schadler, 315 Mich App at 408-409. Moreover, we
-9-
agree with the trial court’s determination that respondent—who denied having any prior criminal
history, using illegal drugs, and committing the sexual assaults—was not credible. Because
respondent sexually assaulted SG, he did not provide proper care of her or EG under MCL
712A.19b(3)(g) and there was no reasonable expectation that he would in the future. Respondent
also exposed SG to physical and emotional harm under MCL 712A.19b(3)(j) and there was a
reasonable likelihood that both SG and EG would be harmed if returned to his care. Given the
evidence, the trial court properly terminated respondent’s parental rights under MCL
712A.19b(3)(b)(i), (c)(ii), (g), (j), and (k)(ii).
And although not challenged by respondent on appeal, we conclude that the trial court also
did not err in its best-interest determination under MCL 712A.19b(5). “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 Minors, 297 Mich App 35, 40;
823 NW2d 144 (2012). “[W]hether termination of parental rights is in the best interests of the
child must be proved by a preponderance of the evidence.” In re Moss, 301 Mich App at 90. This
Court reviews for clear error the trial court’s determination of best interests. Olive/Metts, 297
Mich App at 40.
When determining whether termination is in the best interests of the child, the trial court’s
focus is on the child, not the parent. In re Schadler, 315 Mich App at 411. “[T]he court may
consider 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 other facts, such as “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). In addition, the trial court may consider the parent’s
substance abuse problems. In re AH, 245 Mich App 77, 89; 627 NW2d 33 (2001).
In this case, the trial court properly considered that SG was sexually assaulted by
respondent. The court noted that both SG and EG would be at risk of future abuse and neglect
from respondent and that adoption, rather than guardianships, would be the best way to protect
them from future unwanted access and contact with respondent. The court also recognized that
both SG and EG needed permanency, stability, and finality which they would have with the
caregivers who had consistently provided a safe and loving home for them. The trial court did not
clearly err in its best-interest determination.
Affirmed.
/s/ Brock A. Swartzle
/s/ Mark J. Cavanagh
/s/ James Robert Redford
-10-