in Re Bush Minors ( 2017 )

STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
In re BUSH, Minors. August 22, 2017
No. 336729
Genesee Circuit Court
Family Division
LC No. 12-129437-NA
Before: SAAD, P.J., and SERVITTO and GADOLA, JJ.
PER CURIAM.
Respondent-mother, S. Bush, appeals the circuit court’s order that terminated her parental
rights to the minor children, LMB and LEB, pursuant to MCL 712A.19b(3)(c)(i), (c)(ii), (g), and
(j). We affirm the trial court’s finding that a statutory ground for termination was proved by
clear and convincing evidence, but we vacate the trial court’s best-interest ruling and remand for
reconsideration of that issue.
I. STATUTORY GROUNDS
Respondent argues that the trial court erred when it found that a statutory ground for
termination was proven by clear and convincing evidence. We disagree.
“In order to terminate parental rights, the trial court must find by clear and convincing
evidence that at least one of the statutory grounds for termination in MCL 712A.19b(3) has been
met.” In re VanDalen, 293 Mich. App. 120, 139; 809 NW2d 412 (2011). We review “the trial
court’s findings of fact under the clearly erroneous standard.” In re HRC, 286 Mich. App. 444,
459; 781 NW2d 105 (2009). “A finding of fact is clearly erroneous if the reviewing court has a
definite and firm conviction that a mistake has been committed, giving due regard to the trial
court’s special opportunity to observe the witnesses.” In re BZ, 264 Mich. App. 286, 296-297;
690 NW2d 505 (2004).
Termination is proper under MCL 712A.19b(3)(c)(i) if
[t]he 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 that 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.
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The trial court here did not clearly err when it found that § 19b(3)(c)(i) was proven by
clear and convincing evidence. The initial orders of disposition for the two children were
entered on February 13, 2013, and January 9, 2014. The supplemental petition for termination
was filed in October 2016, well beyond the 182-day period for each child. The condition that led
to the adjudication of LMB as a temporary court ward was respondent’s untreated mental health
issues. The conditions that led to the adjudication of LEB as a temporary court ward were
respondent’s lack of parenting skills and her unresolved mental health issues. The trial court
found that respondent’s mental health issues, while appearing to be in remission, were not being
effectively managed with medication and therapy. That finding is not clearly erroneous. In July
2013, Dr. Harold Sommerschield found that respondent “does not have sufficient psychiatric
stability to parent her child independently in a mentally healthy and safe manner.” In March
2014, after respondent had been on her medication, Dr. Sommerschield yet found that respondent
was not “psychologically stable enough to care for her children.” In September 2016, Dr. Cox
found that respondent exhibited signs of mental illness, such as paranoia, “fast paced manic
pressured speech, [and] very disorganized thinking.” Dr. Cox also found that respondent lacked
the capacity to parent the children. At the time of the hearing, respondent appeared well but was
not in therapy or taking her medication. She believed that she was not mentally ill and did not
require treatment. That respondent’s condition had persisted for years and was not being
effectively managed showed that it continued to exist, and the fact that respondent was not
receiving treatment, and had even denied a need for treatment, showed that the condition was not
likely to be rectified within a reasonable time given the children’s ages. Therefore, we are not
left with a definite and firm conviction that the trial court made a mistake when it found that this
ground was supported by clear and convincing evidence.
The trial court also did not clearly err when it found that § 19b(3)(g) had been established
by clear and convincing evidence. Termination is proper under this subsection when “[t]he
parent, without regard to intent, 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.” Here, respondent was unable to provide proper
care or custody for the children due primarily to her mental illness. As discussed in relation to
§ 19b(3)(c)(i), the evidence showed that respondent’s mental illness was not being effectively
managed and that she lacked the capacity to parent her children. The fact that respondent was
not receiving treatment, and had even denied a need for treatment, as well as her persistent
problems managing the children during family visits, showed that she was unlikely to be able to
provide proper care and custody within a reasonable time given the children’s ages.
Accordingly, the trial court did not clearly err when it found that this statutory ground supported
termination.
Likewise, the evidence supports the trial court’s finding that § 19b(3)(j) was also
established by clear and convincing evidence. Termination under § 19b(3)(j) is appropriate
when “[t]here is a reasonable likelihood, based on the conduct of the child’s parent, that the child
will be harmed if he or she is returned to the home of the parent.” Respondent had mental health
and cognitive limitations that affected her ability to parent the children. The evidence showed
that respondent was unable to keep her children from running out of the visiting area and that
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respondent did not recognize this as a problem. Accordingly, the trial court did not clearly err
when it relied on this ground for the termination of respondent’s parental rights.1
As part of her argument, respondent contends that petitioner did not meet its obligation to
provide her with reasonable services. The record does not support this argument. On the
contrary, the record establishes that respondent was provided with such services as parenting
classes, a psychological evaluation, and assistance from Easter Seals. She also received mental
health treatment at Training and Treatment Innovations (TTI). Services were discontinued in
January 2016 after the filing of a supplemental petition for termination of respondent’s parental
rights, but that petition was dismissed and the parties agreed to resume reunification services.
Respondent’s argument is principally based on the testimony Denise Davidson, a foster-care
worker, at the first termination hearing. Davidson testified that she took over the case from the
previous caseworker in November 2015, the same month the amended supplemental petition for
termination was filed. Although Davidson did not personally offer services to respondent, she
did not testify that respondent was never provided with services. Rather, she testified that during
the pendency of the case, respondent completed two sets of parenting classes, she was offered
family visits, she was referred to TTI four times but did not maintain contact with her mental
health providers, she was provided with assistance from an Infant Mental Health specialist, she
completed a psychological evaluation, and she was referred to Pat Green but refused to
participate in services with her. Respondent also claims that she was not offered any one-on-one
services to accommodate her intellectual disabilities, but Sara Harvey, an Infant Mental Health
specialist from Easter Seals, testified that she began working with respondent at family visits in
March 2013, and the foster-care worker at the time testified that “Ms. Harvey . . . works very
intently with her one-on-one on her parenting skills.” Therefore, we hold that the record does
not support respondent’s argument that petitioner failed to provide her with adequate
reunification services.
II. BEST-INTERESTS DETERMINATION
Respondent also argues that the trial court erred when it found that termination of her
parental rights was in the best interests of the children. We review a trial court’s decision
regarding a child’s best interests for clear error. In re White, 303 Mich. App. 701, 713; 846
NW2d 61 (2014).
“Once a statutory ground for termination has been proven, the trial court must find that
termination is in the best interests before it can termination parental rights.” In re Olive/Metts,
297 Mich. App. 35, 40; 823 NW2d 144 (2012); see also MCL 712A.19b(5). Whether termination
is in the child’s best interests is determined by a preponderance of the evidence. In re Moss, 301
Mich. App. 76, 90; 836 NW2d 182 (2013). The trial court is to consider evidence introduced by
any party. In re Trejo, 462 Mich. 341, 353; 612 NW2d 407 (2000). Relevant factors include how
1
It is unclear what “other conditions” the trial court relied on in support of termination under
§ 19b(3)(c)(ii). Assuming that the trial court erred when it relied on this additional statutory
ground, the error was harmless in light of the evidence supporting termination under
§§ 19b(3)(c)(i), (g), and (j). See In re Powers, 244 Mich. App. 111, 118; 624 NW2d 472 (2000).
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long the child has been in foster care, In re Payne/Pumphrey/Fortson, 311 Mich. App. 49, 64; 874
NW2d 205 (2015); the parent’s history of mental health issues, In re AH, 245 Mich. App. 77, 89;
627 NW2d 33 (2001); the parent’s parenting ability, In re Jones, 286 Mich. App. 126, 129-130;
777 NW2d 728 (2009); the parent’s visitation history with the child and the child’s bond to the
parent, In re White, 303 Mich. App. at 713-714; the parent’s compliance with her case service
plan, id.; the child’s safety and well-being, In re VanDalen, 293 Mich. App. 120, 142; 809 NW2d
412 (2011); and the child’s “need for permanency, stability, and finality,” In re Gillespie, 197
Mich. App. 440, 446-447; 496 NW2d 309 (1992).
While consideration of these criteria may have supported a finding that termination of
respondent’s parental rights was in the children’s best interests, the trial court failed to explicitly
address whether termination was appropriate in light of the fact that the children were placed
with a relative. It is established that “[a] trial court’s failure to explicitly address whether
termination is appropriate in light of the children’s placement with relatives renders the factual
record inadequate to make a best interests determination and requires reversal.” In re
Olive/Metts, 297 Mich. App. at 43. Accordingly, we vacate the trial court’s best-interests
determination and remand for redetermination of that issue.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
Respondent argues that trial counsel was ineffective when she failed to call respondent’s
therapist and psychiatrist as witnesses. Because respondent did not raise this issue in a motion
for an evidentiary hearing or request for a new trial in the trial court, our “review is limited to
mistakes apparent from the record.” People v Lane, 308 Mich. App. 38, 68; 862 NW2d 446
(2014).
A respondent in a child protective proceeding has a due process and equal protection
right to counsel. In re Powers, 244 Mich. App. 111, 121; 624 NW2d 472 (2000). This entails the
right to the effective assistance of counsel. In re EP, 234 Mich. App. 582, 597-598; 595 NW2d
167 (1999), overruled in part on other grounds by In re Trejo, 462 Mich. at 353 n 10. “[T]he
principles of effective assistance of counsel developed in the context of criminal law apply by
analogy in child protective proceedings.” Id. at 598. In the criminal context, the general rule is
that effective assistance of counsel is presumed and the defendant bears a heavy burden of
proving otherwise. People v Eloby (After Remand), 215 Mich. App. 472, 476; 547 NW2d 48
(1996). To establish a claim of ineffective assistance of counsel, the defendant must “show both
that counsel’s performance fell below objective standards of reasonableness, and that it is
reasonably probable that the results of the proceeding would have been different had it not been
for counsel’s error.” People v Frazier, 478 Mich. 231, 243; 733 NW2d 713 (2007).
“Decisions regarding what evidence to present and whether to call or question witnesses
are presumed to be matters of trial strategy.” People v Rockey, 237 Mich. App. 74, 76; 601 NW2d
887 (1999). However, the trial strategy must be sound, and “a court cannot insulate the review
of counsel’s performance by calling it trial strategy.” People v Trakhtenberg, 493 Mich. 38, 52;
826 NW2d 136 (2012).
Respondent received mental health services at TTI. Petitioner’s witnesses testified that
after services were reinstated in 2016, respondent’s case at TTI was closed because her insurance
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lapsed and the case manager was unable to contact respondent. Respondent testified that (1) her
therapist determined, in essence, that she did not need treatment and (2) her psychiatrist told her
that she did not need to take her medication on a regular basis.
Although respondent had a therapist and psychiatrist at TTI who could have offered
testimony regarding respondent’s compliance with mental health services, the record does not
show whether counsel contacted these potential witnesses to learn what information they had, or,
more importantly, what testimony these potential witnesses would have offered if called.
Respondent admits that she does not know what testimony either witness would have offered.
Because the record does not show that counsel made a serious error when she failed to call these
witnesses or that the witnesses’ testimony would have been helpful to respondent, her claim of
ineffective assistance of counsel necessarily fails.
Affirmed in part, vacated in part, and remanded for proceedings consistent with this
opinion. We do not retain jurisdiction.
/s/ Henry William Saad
/s/ Deborah A. Servitto
/s/ Michael F. Gadola
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