In Re featherly/conant/robinson 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UNPUBLISHED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 FEATHERLY/CONANT/ROBINSON, Minors. October 27, 2022
No. 361495
Montcalm Circuit Court
Family Division
LC No. 2014-000666-NA
Before: SHAPIRO, P.J., and GADOLA and YATES, JJ.
PER CURIAM.
Respondent appeals as of right the trial court’s order terminating her parental rights to her
minor children under MCL 712A.19b(3)(c), (g), and (j). We affirm.
I. FACTS
In October 2020, respondent and her six children were living together with Billy
Robinson,1 the father of five of the children, when Child Protective Services (CPS) investigated
reports of physical neglect and improper supervision of the children. CPS was advised that one of
the children, MR, was missing school, was dirty and without socks when he attended school,
constantly referred to Robinson, as “the devil,” and reported witnessing a physical fight between
Robinson and his stepfather. Respondent had a history of CPS involvement; in 2017, one of the
children tested positive at birth for marijuana, and in 2016, CPS substantiated reports of domestic
violence between respondent and Robinson. In 2020, the youngest child had been removed from
respondent’s care after respondent allegedly abandoned the child at the hospital after she was born.
In November 2020, CPS was informed that respondent was engaged in methamphetamine
use and sex trafficking. CPS workers visited the home and found that although is was 2:00 p.m.,
the children were not in school and they had to wake respondent and Robinson. The youngest
child, then five months old, was without clothes or a diaper and was wet. CPS spoke with the
children, one of whom (MR) reported that he had seen Robinson choke respondent and push her
onto the bed by the throat. CPS learned that during that incident MR called the police for
1
Robinson died in February 2022, while this case was pending before the trial court.
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assistance. Respondent had bruising on her neck, cheeks, and hands consistent with the reported
incident, but denied that the incident had occurred. The CPS workers also learned that Robinson
had been charged earlier that year of carrying a concealed weapon. The CPS workers offered to
provide the family with services and scheduled a Family Team meeting, but respondent declined
to participate.
Petitioner sought an order from the trial court removing the children from respondent’s and
Robinson’s care and authorizing the filing of the petition. The petition outlined a number of
previous investigations involving respondent’s neglect of the children, respondent’s history of
methamphetamine use, and violence in the home involving respondent and Robinson. At the
conclusion of the hearing on December 7, 2020, the trial court authorized the filing of the petition
and ordered that the children be removed from the home.
According to petitioner, the barriers to reunification of the children with respondent were
respondent’s emotional instability, substance abuse, lack of parenting skills, domestic violence,
lack of employment, and lack of resource management. Petitioner offered respondent and
Robinson numerous services to remove the barriers, including supervised parenting time, drug
testing, psychological testing, counseling, domestic violence prevention classes, and parenting
classes. Respondent did not participate in any of the services offered other than supervised
parenting time.
In April 2021, the trial court granted petitioner’s motion to suspend parenting time. At the
hearing on the motion, the foster care caseworker testified that the six children were at that time
between the ages of almost one year old and 13 years old. After the children’s removal from the
home, respondent and Robinson had been provided separate supervised parenting time with the
children. The foster care caseworker testified that the visits were chaotic; the children ran through
the building yelling, screaming, and hitting, biting, and scratching each other. The children did
not listen to nor follow instructions. Respondent exhibited anger and inability to control the
children; she called the foster mother obscene names in front of the children and told the children
that the foster care workers were to blame for the situation. Respondent did not nurture the
children; she instead made angry statements to the children, sometimes grabbed or restrained them
physically, and threatened not to visit them in the future. The children’s foster parents reported
that after the visits, the younger children demonstrated anger and threw tantrums, while the
youngest child regressed in potty training. Respondent blamed the children’s behavior on the
foster homes.
After delays caused by the COVID-19 pandemic, the adjudication trial was held July 7 and
8, 2021, at the conclusion of which the jury determined that the trial court had jurisdiction over
the children. The trial court held a dispositional hearing August 4, 2021, and thereafter adopted
the recommendations of the foster care worker, ordering that the children remain in foster care,
and that respondent participate in a psychological evaluation, counseling if indicated by the
evaluation, domestic violence education and counseling, random drug screening, substance abuse
assessment, substance abuse therapy or counseling if indicated, AA or NA if indicated, and
parenting classes. Respondent also was ordered to maintain adequate housing, obtain and maintain
employment, and participate in Family Team meetings with petitioner.
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At the review hearing held November 2, 2021, the foster care caseworker testified that
respondent had not participated in any of the ordered services. Respondent had participated in
only one drug screen during which she tested positive for amphetamine and methamphetamine.
The trial court cautioned respondent that she would not be reunified with the children unless she
participated in the ordered services.
At the review hearing held February 1, 2022, petitioner and the guardian ad litem (GAL)
informed the trial court that respondent was not participating in the case service plan and, in
connection with criminal charges, had tested positive in the district court for methamphetamine
and amphetamine. The trial court found that respondent was not participating in the case service
plan and cautioned respondent that she had “one last opportunity” to participate in services before
the next review hearing if she wished to avoid termination of her parental rights.
At the review hearing held March 15, 2022, the GAL informed the trial court that
respondent had made efforts to comply with the case service plan after the February hearing by
participating in a psychological evaluation and participating in random drug screens, which were
negative. Respondent also had begun domestic violence counseling in the week before the review
hearing, and had completed two sessions of an online parenting class. The GAL opined that
respondent’s efforts in the days before the hearing were not adequate to rectify the barriers to
reunification. Petitioner similarly reported that respondent had not benefitted from her last-minute
efforts to participate in services and recommended that the goal be changed to termination. At the
conclusion of the review hearing, the trial court ordered that the goal be changed from reunification
to termination. The trial court found that petitioner had made reasonable efforts to reunify
respondent with the children and directed petitioner to end its reunification efforts. The trial court
stated that respondent was no longer ordered to comply with the case service plan, but could
continue to participate in the case service plan if she wished to do so.
The termination hearing was held May 13, 2022. The foster care caseworker testified that
the barriers to reunification for respondent continued to be her emotional instability, substance
abuse, lack of parenting skills, domestic violence, and lack of housing, employment, and resource
management. The foster care caseworker testified that respondent had not substantially completed
any part of the case service plan. Respondent continued to deny her substance use even after
testing positive for methamphetamine, and also denied that the children witnessed domestic
violence in the home, despite the fact that the children reported witnessing the violence. The
caseworker also testified that respondent had been hostile and uncooperative when interacting with
petitioner and that the children would be at risk of harm if returned to respondent’s care.
Respondent testified that she began participating in the offered services after receiving an
“ultimatum” from the trial court at the February 1, 2022 hearing. Respondent testified that she did
not have “any solid excuses” for her failure to participate in the case service plan before
February 2022, but blamed the hostility between herself and the caseworker. Respondent
requested that the trial court focus on her progress in the weeks following the February 1, 2022
hearing and requested that she be given additional time to work on the case service plan.
At the conclusion of the termination hearing, the trial court found that petitioner had made
reasonable efforts to preserve and reunify the family but that those efforts were unsuccessful. The
trial court found that respondent did nothing to remove the barriers to reunification until February
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or March 2022, at which point it was too late for respondent to make the progress necessary before
termination was warranted. The trial court noted that respondent had recently participated in a
psychological evaluation, the results of which indicated that respondent required at least one year
of intense therapy and counseling to address her emotional issues. The trial court found that
statutory bases for termination existed under MCL 712A.19b(3)(c), (g), and (j). The trial court
also found by a preponderance of the evidence that it was in the children’s best interests to
terminate respondent’s parental rights. Respondent now appeals.
II. DISCUSSION
A. REASONABLE EFFORTS
Respondent contends that the trial court erred by determining at the March 15, 2022 review
hearing that petitioner no longer was required to make reasonable efforts to reunify respondent
with the children. We disagree.
Before seeking termination of parental rights, the Department of Health and Human
Services (DHHS) generally has an affirmative duty to make reasonable efforts to reunify a parent
with the child. In re Hicks, 500 Mich 79, 85; 893 NW2d 637 (2017), citing MCL 712A.18f(3)(b)
and (c), and MCL 712A.19a(2). Absent aggravating circumstances under MCL 712A.19a(2),
when a child is removed from a parent’s custody, the petitioner is required to exert reasonable
efforts to rectify the conditions that led to the child’s removal by adopting a service plan outlining
the steps that both the DHHS and the parent will take to rectify the conditions that led to the court’s
involvement and thereby achieve reunification. In re Sanborn, 337 Mich App 252, 258-259; 976
NW2d 44 (2021). “The adequacy of the petitioner’s efforts to provide services may bear on
whether there is sufficient evidence to terminate a parent’s rights.” In re Rood, 483 Mich 73, 89;
763 NW2d 587 (2009).
Although the DHHS must “expend reasonable efforts to provide services to secure
reunification” of the parent and the child, the respondent parent has a “commensurate
responsibility . . . to participate in the services that are offered,” In re Atchley, ___ Mich App ___,
___; ___ NW2d ___ (2022) (Docket Nos. 358502; 358503); slip op at 2, quoting In re Frey, 297
Mich App 242, 248; 824 NW2d 569 (2012). The parent also must demonstrate that he or she
sufficiently benefitted from the services. In re Atchley, ___ Mich App at ___; slip op at 2
In this case, petitioner provided respondent with numerous services to reunify respondent
with her children. The barriers to reunification were respondent’s substance use, emotional
instability, lack of parenting skills, domestic violence, and economic instability. To address those
barriers, petitioner offered respondent numerous services including psychological evaluation, drug
testing, counseling, parenting classes, and domestic violence counseling. The record supports the
trial court’s finding that respondent failed to participate in the services offered until approximately
three months before the termination hearing, at which time respondent participated in a
psychological evaluation, drug testing, two sessions of a parenting class, and began domestic
violence counseling. These efforts, begun shortly before termination, were not adequate to remove
the barriers to reunification. Respondent thus failed in her commensurate duty to participate in
and benefit from the offered services. See In re Atchley, ___ Mich App at ___; slip op at 2.
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Respondent argues, however, that regardless of whether petitioner made reasonable efforts,
the trial court erred when, at the conclusion of the March 15, 2022 hearing, the trial court changed
the goal from reunification to termination and directed petitioner to stop making reasonable efforts
toward reunification. We observe, however, that the DHHS is required “to make reasonable efforts
to reunify a family before seeking termination of parental rights.” In re Hicks, 500 Mich at 85
(emphasis added). As noted, reasonable efforts begin with the creation of a case service plan to
rectify the conditions that led to the removal of the children with the goal of reunification. Id. at
85-86. Here, petitioner made reasonable efforts to reunify the family before seeking termination
of respondent’s parental rights and created a case service plan; respondent declined to participate
in the reunification efforts. After respondent failed to make progress for over 15 months, the trial
court changed the goal from reunification to termination. Under these circumstances, the trial
court did not err by directing petitioner to no longer pursue the goal of reunification. We also
observe that the trial court did not preclude respondent from continuing to comply with the case
service plan. Rather, the trial court advised respondent that although the trial court no longer was
ordering respondent to participate in the case service plan, she could “continue to participate in
[the] case service plan if she so desires.”
In sum, respondent raises no valid challenge to the reasonableness of petitioner’s efforts.
Petitioner offered respondent numerous services aimed at removing the barriers to reunification of
respondent with her children, but respondent declined to participate in the offered services until
shortly before termination. The trial court did not err by directing petitioner to discontinue its
efforts toward reunification after the goal was changed to termination.
B. STATUTORY BASIS
Respondent contends that the trial court erred by finding that clear and convincing evidence
demonstrated a statutory basis for termination of her parental rights. We disagree.
We review for clear error the trial court’s determination that clear and convincing evidence
demonstrates a statutory basis to terminate parental rights, as well as the trial court’s factual
findings. In re Keillor, 325 Mich App 80, 85; 923 NW2d 617 (2018). The trial court’s factual
findings are clearly erroneous if we are firmly and definitely convinced that the trial court made a
mistake. Id. We will not conclude that a trial court’s finding is clearly erroneous unless it is more
than possibly or probably incorrect. In re Ellis, 294 Mich App 30, 33; 817 NW2d 111 (2011).
To terminate parental rights, the trial court must find that at least one basis for termination
under MCL 712A.19b(3) has been proven by clear and convincing evidence. In re Keillor, 325
Mich App at 85. In this case, the trial court found clear and convincing evidence to support
termination of respondent’s parental rights under MCL 712A.19b(3)(c),2 (g), and (j), which
provide:
2
The trial court did not specify that it was ruling under subsection (i) of MCL 712A.19b(3)(c), but
the trial court’s findings relate to that subsection.
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(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:
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(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, 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.
We note that the termination of parental rights requires the petitioner to establish only one
statutory basis under MCL 712A.19b(3). In re Martin, 316 Mich App 73, 90; 896 NW2d 452(2016). Here, the record supports the trial court’s findings that termination was warranted under
MCL 712A.19b(3)(c)(i), (g), and (j). The barriers to respondent’s reunification with her children
remained the same at the time of termination as they had been when the children were removed
from her care in late 2020. Respondent failed to participate in the offered reunification services
until the eve of termination and realized no benefit from the services, warranting termination under
subsection (c)(i). A parent’s failure to benefit from services is evidence that the parent will not be
able to provide the child with proper care and custody within a reasonable time, warranting
termination under subsection (g). See In re White, 303 Mich App 701, 710-711; 846 NW2d 61(2014). In addition, a parent’s failure to benefit from a service plan is evidence that the child will
be harmed if returned to the parent’s home, warranting termination under MCL 712A.19b(3)(j).
Id. In this case, until shortly before her parental rights were terminated, respondent refused to
participate in services to address her substance abuse, lack of parenting skills, and domestic
violence. She denied her substance use and the domestic violence in the home, and blamed the
foster care workers and the foster parents for the children’s trauma. The trial court therefore did
not clearly err by finding that clear and convincing evidence supported termination of respondent’s
parental rights under MCL 712A.19b(3)(c)(i), (g), and (j).
Respondent acknowledges that barriers to reunification continued to exist at the time of
termination, but argues that after the trial court warned her at the February 1, 2022 review hearing
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that she had one last chance to participate in services before the goal was changed to termination,
she was not given sufficient time to demonstrate that she could improve through services. The
question, however, is not whether respondent had ample time to rectify the situation after the
February 1, 2022 review hearing; rather, the question is whether a statutory basis for termination
was established by clear and convincing evidence, which may be established by a parent’s failure
to comply with a case service plan. Here, respondent did not participate in nor benefit from
services to remove the barriers to reunification after the children were removed from her care in
late 2020, and continued to refuse to participate in services after the trial court ordered her to
comply with services at the dispositional hearing in August 2021. Though frequently cautioned
by the trial court that her failure to participate in and benefit from services would lead to
termination of her parental rights, respondent did not begin to participate in services until February
2022, shortly before the trial court ordered that the goal be changed from reunification to
termination.
Respondent argues that her lack of participation should be excused because disposition in
this matter did not occur until eight months after removal due to delays caused by the COVID-19
pandemic, leaving only seven months after the disposition before the goal was changed to
termination. However, under MCL 712A.19b(3)(c)(i), the trial court may terminate the
respondent’s parental rights if 182 days, i.e., six months, have elapsed since the issuance of the
dispositional order if the conditions that led to adjudication continue to exist. Moreover, the
children were removed from respondent’s care in December 2020, yet respondent did not make
any effort to regain custody of the children until February 2022. We conclude that respondent has
not established that the trial court erred by finding a statutory basis to terminate her parental rights.
C. BEST INTERESTS
Respondent also contends that the trial court clearly erred because it failed to sufficiently
explain its determination that termination of respondent’s parental rights was in the best interests
of the children. We disagree.
Once a statutory basis for termination has been demonstrated, the trial court is required to
terminate the parent’s parental rights if a preponderance of the evidence establishes that
termination is in the best interests of the child. MCL 712A.19b(5); In re Medina, 317 Mich App
219, 237; 894 NW2d 653 (2016). We review for clear error the trial court’s decision regarding a
child’s best interests. Id. at 226.
When determining whether the termination of a parent’s rights is in the best interests of the
child, the trial court should weigh all the available evidence, and consider a variety of factors that
may include the parent-child bond, the parenting ability of the parent, the child’s need for
permanency, stability, and finality, the advantages of a foster home over the parent’s home, the
parent’s compliance with the case service plan, the child’s well-being in the foster home, and the
possibility of adoption. In re White, 303 Mich App at 713. The trial court also should consider
the child’s safety and well-being, including the risk of harm to the child if returned to the parent’s
care. See In re VanDalen, 293 Mich App 120, 142; 809 NW2d 412 (2011). Additional
considerations are the parent’s history of domestic violence, the parent’s visitation history with the
child, and the child’s well-being while in care. In re White, 303 Mich App at 713-714; see also In
re Payne/Pumphrey/Fortson, 311 Mich App 49, 64; 874 NW2d 205 (2015). Although the trial
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court should consider each child individually, the trial court is not required to make “individual”
and “redundant” factual findings if the best interests of the children do not differ. In re White, 303
Mich App at 715-716.
In this case, a review of the record demonstrates that the trial court considered relevant
factors when determining the best interests of the children. The trial court specifically considered
the trauma the children had experienced from witnessing domestic violence in the home and
respondent’s denial that it had occurred, respondent’s lack of parenting ability, respondent’s
substance abuse and her denial of the problem, respondent’s lack of employment or other source
of income, and her refusal to participate in the case service plan to rectify these problems. The
trial court specifically found that the four oldest children had witnessed violence in respondent’s
home, resulting in post-traumatic stress disorder, but respondent continued to deny that the
violence occurred. Regarding the two youngest children, the trial court determined that it was in
their best interests to terminate respondent’s parental rights because it was not safe for them to
return to respondent’s care and custody in light of her failure to participate in the case service plan
and her denial of her lack of parenting skills. Although respondent argues that the trial court should
have specifically considered additional factors in determining the children’s best interests, she
does not specify which additional factors the trial court should have considered and why those
factors are relevant or determinative in this case. We therefore conclude that the trial court did not
clearly err by determining that termination was in the best interests of the children.
Affirmed.
/s/ Douglas B. Shapiro
/s/ Michael F. Gadola
/s/ Christopher P. Yates
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