20230105_C361149_36_361149.Opn.Pdf ( 2023 )

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UNPUBLISHED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 Salisbury, Minors. January 5, 2023
Nos. 361149; 361150
Wayne Circuit Court
Family Division
LC No. 2016-522708-NA
In re J Y C Salisbury, Minor. No. 361242
Wayne Circuit Court
Family Division
LC No. 2021-001192-NA
Before: M. J. KELLY, P.J., and MURRAY and RIORDAN, JJ.
PER CURIAM.
Respondents are the parents of AB and JS. In addition, respondent-father is the father of
CS. In Docket No. 361149, respondent-mother appeals as of right the order terminating her
parental rights to AB and JS pursuant to MCL 712A.19b(3)(g) (failure to provide proper care or
custody), (i) (parental rights to a sibling have previously been terminated due to serious and chronic
neglect or physical or sexual abuse), and (j) (reasonable likelihood of harm if returned to the
parent’s home). In Docket No. 361150, respondent-father appeals as of right the order terminating
his parental rights to AB and JS pursuant to the same three subsections. In Docket No. 361242,
respondent-father appeals as of right the order terminating his parental rights to CS pursuant to the
same three subsections as well. In all three appeals, respondents argue that the trial court clearly
erred by finding that the statutory grounds for termination were proven and that termination of
parental rights was in the children’s best interests. We affirm.
I. FACTS
On May 10, 2016, petitioner filed its petition with regard to AB and JS, alleging that
respondents provided improper supervision and based on the history of CPS involvement. The
trial court authorized the petition, stating that “[t]he children are at risk in the care of mother and
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father.” On July 6, 2016, respondents entered a plea to allegations indicating that jurisdiction was
warranted because of “an unfit home environment, by reason of neglect, cruelty, drunkenness,
criminality, or depravity on the part of a parent, guardian, nonparent adult, or other custodian.”
Eventually, in July 2018, the two children were returned to respondent-father’s care.
On March 4, 2019, petitioner filed a supplemental petition requesting that the two children
be removed from respondent-father’s care. The petition stated that “CPS substantiated . . .
allegations and found Preponderance for Improper Supervision, Maltreatment and Physical
Neglect.” An August 2019 dispositional order explained the status of the case as follows:
THE REMAINING BARRIER[S] ARE HOUSING, EMPLOYMENT,
PSYCHOLOGICAL AND PSYCHIATRIC EVALUATION. THE BIGGEST
BARRIER IS HOUSING. . . . THE COURT WILL ALLOW THE FATHER TO
RESIDE IN THE HOME OF THE PATERNAL GREAT GRANDPARENTS
WHERE THE CHILDREN ARE PLACED. MOTHER WAS NOT PRESENT.
DHHS LAST HAD CONTACT WITH THE MOTHER IN JULY. THE MOTHER
INDICATED THAT SHE HAD RELAPSED AND WAS ENTERING INTO
SUBSTANCE ABUSE SERVICES. . . .
The children were returned to respondent-father’s care in October 2019.
In November 2021, the trial court again ordered AB and JS removed from respondent-
father’s care. The temporary order explained that respondents were abusing drugs and that they
did not have a suitable home for the children. At about the same time, petitioner filed a petition
requesting that the trial court terminate respondents’ parental rights to AB and JS, and another
petition requesting that the trial court terminate respondent-father’s parental rights to CS. The
petition concerning AB and JS included numerous allegations regarding respondents’ use of
cocaine and other unspecified drugs in the presence of all three children. The petition alleged that
respondent-father partially owned a home, but he “reported he cannot go back to the house he is
partial owner of in Detroit due to fear of the people [respondent-mother] keeps bringing to the
house.” The petition added that respondents previously lost parental rights to another child in
Florida. The petition concerning CS similarly included numerous allegations regarding
respondent-father’s use of drugs. That petition requested that the trial court assume jurisdiction
over CS and that she be returned to her non-respondent mother.1
Testimony at the bench trial confirmed that respondents were generally abusing drugs
during these proceedings, and that neither respondent had a stable job or a suitable home for the
children. Petitioner had offered services to respondents since 2007, but unfortunately, those
services showed no long-term benefit to either respondent. To his credit, however, respondent-
father left the children in the care of his grandparents in the fall of 2021. He did this after
apparently recognizing that he was incapable of caring for them himself. The paternal great-
grandparents were willing to adopt AB and JS.
1
This is the first petition requesting that the trial court assume jurisdiction over CS. Apparently,
she lived with her mother until October 2020, when custody was awarded to respondent-father.
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The trial court decided to terminate respondents’ parental rights, explaining at the
conclusion of the bench trial that respondents have “been given a number of opportunities to get it
together and yet here we are.” The trial court expressed its hope that respondents would overcome
their respective drug addictions but indicated that the status quo was unacceptable.
These consolidated appeals followed.
II. GROUNDS FOR TERMINATION
“This Court reviews for clear error the trial court’s factual findings and ultimate
determinations on the statutory grounds for termination.” In re Keillor, 325 Mich App 80, 85; 923
NW2d 617 (2018) (quotation marks and citation omitted). “A trial court’s findings of fact are
clearly erroneous if we are definitely and firmly convinced that it made a mistake.” Id. (quotation
marks and citation omitted). “To terminate parental rights, the trial court must find that at least
one of the statutory grounds for termination in MCL 712A.19b(3) has been proved by clear and
convincing evidence.” In re Ellis, 294 Mich App 30, 32; 817 NW2d 111 (2011).
MCL 712A.19b(3) provides, in relevant part, as follows:
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:
(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.
***
(i) Parental rights to 1 or more siblings of the child have been terminated
due to serious and chronic neglect or physical or sexual abuse, and the parent has
failed to rectify the conditions that led to the prior termination of parental rights.
(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 question whether the trial court properly found that MCL 712A.19b(3)(g) was proven
by clear and convincing evidence, given the minimal testimony and evidence concerning
respondents’ financial status. We also question whether the trial court properly found that MCL
712A.19b(3)(i) was proven by clear and convincing evidence, given that the circumstances
surrounding the previous termination of parental rights in Florida were not detailed.
However, with regard to MCL 712A.19b(3)(j), the trial court did not clearly err. The
testimony at the bench trial showed that respondents were generally unemployed and often
homeless. Although respondent-father partially owned a home in Detroit, the individuals
frequenting that home were so threatening that respondent-father himself was afraid to reside or
bring the children there. Thus, even though respondents nominally had a home, it was not, per
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respondent-father’s statements, suitable for the children. Further, as the trial court detailed in its
opinion and order, the evidence showed that respondent-mother used drugs in the presence of all
three children, and respondent-father gave CS drugs to temporarily hold for him. This suggests
that the three children would be continuously exposed to drug use and possession if they were
returned to either respondent’s care. The facts that respondent-mother could not be contacted
during the most recent proceedings, presumably because she was regularly abusing drugs and not
living in a stable household, and respondent-father was unwilling to provide the trial court with
the name of his purported long-term rehabilitation program, reinforce the trial court’s conclusion.
Even if exposure to drug use and possession would not necessarily result in physical harm to the
children, it invariably would result in some type of mental or emotional harm to the children. See
In re Pederson, 331 Mich App 445, 473; 951 NW2d 704 (2020) (“For purposes of [subsection (j)],
the harm in question need not be physical; a ‘risk of emotional harm’ can suffice.”) (citation
omitted). Simply put, respondents’ drug abuse and resultant household instability over the course
of several years despite petitioner’s repeated involvement created “a reasonable likelihood” that
the three children would be “harmed if . . . returned to the home of [respondents].” MCL
712A.19b(3)(j). The trial court did not clearly err by finding that this statutory ground for
termination was proven by clear and convincing evidence. Further, because the trial court did not
clearly err by finding that one statutory ground for termination was proven by clear and convincing
evidence, any error with regard to the other two grounds for termination, MCL 712A.19b(3)(g)
and (i), was harmless. See In re Ellis, 294 Mich App at 32.
III. BEST INTERESTS
“We review for clear error the trial court’s determination regarding the children’s best
interests.” In re White, 303 Mich App 701, 713; 846 NW2d 61 (2014). “[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 76, 90; 836 NW2d 182 (2013).
“If a statutory ground for termination is established and the trial court finds ‘that
termination of parental rights is in the child’s best interests, the court shall order termination of
parental rights and order that additional efforts for reunification of the child with the parent not be
made.’ ” In re Ellis, 294 Mich App at 32-33, quoting MCL 712A.19b(5).
To determine whether termination of parental rights is in a child’s best interests,
the court should consider a wide variety of factors that may 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.
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 at 713-714 (cleaned up).]
In this case, respondents had an extensive history with CPS, including multiple
substantiated allegations of neglect. The trial court looked at drug abuse as the primary issue that
caused this neglect and that issue clearly had not been resolved by the time the instant termination
proceedings were initiated or by the time the termination orders were entered. Further, before the
three children were removed from respondent-father’s care, they were repeatedly exposed to
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respondents’ drug problems. Throughout these proceedings, the whereabouts of respondent-
mother were unknown, and respondent-father admitted that he had no home or job. Unfortunately,
respondents showed little promise of being able to resolve their drug problems within a reasonable
time, given that respondent-father refused to identify his rehabilitation program for the trial court,
and respondent-mother candidly admitted to a caseworker that she would continue to use drugs
until she was subjected to a drug test.
As the trial court observed, all three children had far superior alternatives to remaining in
respondents’ unstable care. AB and JS were to be adopted by their paternal great-grandparents,
and CS was released to the care of her mother, who was not a respondent in these proceedings. In
light of these facts, as well as respondents’ repeated inability to successfully resolve their drug
problems, the trial court did not clearly err by finding that termination of respondents’ parental
rights was in the children’s best interests.
IV. CONCLUSION
The trial court did not clearly err by finding that MCL 712A.19b(3)(j) was proven by clear
and convincing evidence or by finding that termination of respondents’ parental rights was in the
children’s best interests. We affirm.
/s/ Michael J. Kelly
/s/ Christopher M. Murray
/s/ Michael J. Riordan
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