in Re clayton/hickman Minors ( 2016 )

STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
In re CLAYTON/HICKMAN, Minors. September 27, 2016
No. 331678
Wayne Circuit Court
Family Division
LC No. 10-494553-NA
Before: BORRELLO, P.J., and MARKEY and RIORDAN, JJ.
PER CURIAM.
Respondent father appeals by right a January 27, 2016 order terminating his parental
rights to the minor child JH pursuant to MCL 712A.19b(3)(c)(i), (g) and (j). For the reasons set
forth in this opinion, we affirm.
I. BACKGROUND
In 2010, petitioner, Department of Health and Human Services (DHHS) became involved
with the mother of JH. At the time, the mother had three other children. One of the children
suffered suspected physical abuse and DHHS petitioned to remove the three children. The three
children had three different fathers, none of whom were involved in the children’s lives. After
mother complied with a treatment plan, the children were returned to her care.
On July 16, 2014, mother gave birth to her fourth child, JH. At the time of the birth, JH
and mother had cocaine and opiates in their systems and JH needed treatment to address
withdrawal symptoms. On July 29, 2014, DHHS filed a petition to remove JH and the other
children from mother’s care. DHHS alleged that mother had an ongoing substance abuse
problem that interfered with her ability to provide care for the children. DHHS alleged that
respondent father, who was the putative father at the time, had a lengthy criminal history that
included felony drug convictions and that respondent did not provide for JH. The court
authorized the petition and the children were removed from mother’s care on July 22, 2014, and
placed with the maternal grandmother.
Initially, DHHS was aware that respondent was the putative father of JH, and that
respondent was incarcerated. After he was released on parole, respondent appeared at a
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September 30, 2014, hearing and acknowledged paternity of JH. Paternity was later confirmed
by an affidavit of parentage.1
On October 14, 2014, at a pre-trial hearing, mother admitted that she abused controlled
substances including cocaine while she was pregnant with JH and she admitted that her other
children were previously removed from her care following allegations of physical abuse. At the
hearing, respondent admitted that he was incarcerated during mother’s pregnancy with JH
following a conviction for delivering and manufacturing controlled substances. Respondent was
on parole at the time of the hearing. The court assumed jurisdiction over the children. The
children remained in the care of the maternal grandmother. After the October 14, 2014, hearing,
mother did not appear in court again and her whereabouts were unknown.
Thereafter, the court held several dispositional review hearings. The court ordered
DHHS to provide a parent-agency agreement plan to respondent. DHHS presented the plan to
respondent on November 12, 2014. Under the terms of the plan, respondent needed to secure
suitable housing and suitable income, participate in parenting classes, remain in contact with the
case worker, abide by the terms of his parole, participate in visitations, and attend all court
hearings. The court ordered respondent to comply with these terms. Respondent failed to do so.
On February 5, 2015, the court held another dispositional review hearing. Respondent
was not present and he had absconded from parole. Respondent had not visited JH regularly,
having last visited JH on Thanksgiving 2014. After that, respondent did not have contact with
JH “for some time,” and respondent failed to provide DHHS with a valid address.
On May 4 and June 3, 2015, the court held hearings. Respondent was incarcerated after
violating the terms of his parole. He was released but did not attend the June hearing.
Respondent was not visiting JH and was in non-compliance with the treatment plan. The court
ordered DHHS to file a petition for permanent custody.
Thereafter in September and October 2015, respondent was again incarcerated for
violating the terms of his parole. Respondent was released and resided in a treatment facility for
a short time where he was provided services including substance abuse treatment and mental
health services. Respondent then failed a drug test in violation of his terms of parole and he was
again incarcerated. Meanwhile, JH was “thriving” in his foster home. On September 23, 2015,
DHHS filed a supplemental petition for permanent custody of JH.
The trial court held a termination hearing on January 26, 2016. Respondent was
incarcerated and not in attendance. JH’s maternal grandmother testified that JH was in her care
since birth and that JH was doing well. The grandmother testified that she was willing to adopt
JH. The grandmother testified that for the past two years, respondent was incarcerated on and
off and he had not visited JH more than four times. Respondent did not provide any financial
support for JH and had not provided any necessities for the child.
1
Although the court terminated mother’s parental rights and the rights of the fathers of JH’s
siblings, this appeal only concerns the termination of respondent’s parental rights to JH.
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Renita Young, a DHHS foster care worker, testified that, according to the record,
respondent was provided a treatment plan in October 2014. However, Young agreed that she
was not the caseworker at the time and she gave respondent a copy of the treatment plan in
October 2015. She testified that respondent violated the terms of his parole and was incarcerated
from February 17, 2015 to September 2015, when he was released to participate in a Stepdown
program where he received services such as substance abuse counseling. However, during his
time in the Stepdown program, respondent again tested positive for controlled substances and he
was again incarcerated on November 15, 2015. Young testified that, when respondent was not
incarcerated, he failed to comply with his treatment plan. Respondent was referred to parenting
classes, but he did not participate. Respondent did not appear for hearings and he did not submit
any proof of income. When respondent was released on parole, he visited JH twice, but he was
not consistent with his parenting visits. Young testified that DHHS sought termination because
respondent did not spend much time with JH, he was not involved in JH’s life, he had not
provided emotional or financial support, and JH needed permanency. Respondent never came
into compliance with his treatment plan, he violated parole and tested positive for drugs. Young
testified that it was in JH’s best interests to terminate respondent’s parental rights.
The trial court found grounds for termination under MCL 712A.19b(3)(c)(i), (g) and (j).
The court explained as follows:
One gets the feeling that [respondent] is serving a life sentence on the installment
plan. This is very sad. The drugs have him. [Respondent] has a large number of
gang tattoos on him. This is all very sad. It doesn’t take much to become
somebody in our society. It does take a high school diploma, a little bit more
training than that. It takes workplace readiness skills. Really simple stuff.
Knowing enough to show up, be on time, doing what you’re told to, be on time,
leave drugs alone.
[Counsel] tries to take a weakness and turn it into a strength . . . Respondent is
very hard to service because he’s hard to find if he’s not in prison. When he’s in
prison or jail he’s easy to find. He’s tough to provide services to or to get to do
anything.
[] There’s no reasonable likelihood the conditions would be rectified within a
reasonable time considering the child’s age.
It’s my job to try and get people to cross a series of finish lines. It would please
me very much if [respondent] were to whip his addiction, focus on becoming
somebody, get the training necessary to become somebody, become somebody,
make me proud of him, make his child proud of him . . . But based upon what I’ve
seen it simply is not going to happen. He has to make that choice. And he hasn’t
made it.
Further, I’d find grounds under 3(G) and 3(J). [Respondent] he can’t provide
proper care or custody for the child. There’s no reasonable expectation that he’ll
whip the drug problem he has, focus on making something of himself, be a parent
within a reasonable time considering the child’s age. []
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And there’s a reasonable likelihood based upon dad’s, both conduct and capacity
that the child . . . would be harmed if returned to dad. . . .
The court also found that termination was in JH’s best interests, reasoning that
respondent did not “seek his child out,” and finding that the maternal grandmother would
provide stability and permanency for JH. This appeal ensued.
II. ANALYSIS
A. Statutory Grounds for Termination
On appeal, respondent contends that the trial court clearly erred in finding statutory
grounds for termination.
A trial court’s conclusion that there exists a statutory basis to terminate a respondent’s
parental rights is reviewed for clear error. In re Olive/Metts Minors, 297 Mich. App. 35, 40; 823
NW2d 144 (2012). “A finding is clearly erroneous when, although there is evidence to support
it, the reviewing court on the entire record is left with a definite and firm conviction that a
mistake has been committed.” In re Campbell, 170 Mich. App. 243, 253-254; 428 NW2d 347
(1988). In making that determination, “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 Miller, 433
Mich. 331, 337; 445 NW2d 161 (1989); see also MCR 2.613(C).
A trial court’s grounds for terminating parental rights under MCL 712A.19b must be
established by clear and convincing evidence. In re McIntyre, 192 Mich. App. 47, 50; 480 NW2d
293 (1991). The circuit court found grounds for termination under MCL 712A.19b(3)(c)(i) and
(g), which provide that termination is appropriate in relevant part as follows:
(c) [] 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.
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(g) The 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.
In this case, the court removed JH in July 2014 and assumed temporary jurisdiction over
JH in October 2014. The conditions that led to initial dispositional order were substance abuse,
criminality and neglectful parenting. The court terminated respondent’s rights on January 26,
2016, more than 182 days later. There was clear and convincing evidence that the conditions
that led to the adjudication continued to exist and there was no reasonable likelihood that the
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conditions would be rectified within a reasonable time considering JH’s age. MCL
712A.19b(3)(c)(i). There was also clear and convincing evidence that respondent failed to
provide proper care or custody for JH and there was no reasonable expectation that respondent
would be able to provide proper care and custody within a reasonable amount of time. MCL
712A.19b(3)(g).
Here, contrary to respondent’s contention on appeal, respondent was provided a treatment
plan well before the termination hearing such that he had time to rectify the problems that led to
the initial adjudication and to show that he could provide proper care and custody of JH. He
failed to do so. Specifically, DHHS provided the treatment plan to respondent on November 12,
2014, at a hearing. Respondent was informed of what he needed to do to obtain custody of JH.
Respondent was informed that he needed to obtain suitable housing and suitable income, abide
by the terms of his parole, participate in parenting classes, remain in contact with the caseworker,
attend all hearings, and participate in visitations. The record reflects that respondent failed with
respect to all of these responsibilities. In particular, less than three months after receiving the
treatment plan, respondent absconded from parole. This was the first of many times that
respondent failed to abide by the terms of his parole, which led to a damaging pattern of
respondent being released from prison only to be re-incarcerated shortly thereafter.
Respondent’s behavior showed that he had not rectified the conditions that led to the
adjudication and that there was no likelihood he would do so in a reasonable amount of time.
Moreover, respondent’s actions showed that he failed to provide proper care or custody
of JH and that there was no reasonable expectation that he would be able to do so within a
reasonable amount of time. During the time that he was on parole, respondent did not visit JH
regularly and respondent never provided anything for JH. He did not provide financially and he
did not provide any necessities such as clothing for JH. The grandmother’s testimony showed
that respondent was not invested in JH’s life. Although respondent acted properly during visits,
his conduct overall showed that he was not committed to providing the care and support that JH
needed. Instead, respondent repeatedly made choices that were neither in his nor JH’s best
interests. Respondent was given the opportunity to reform himself, but he did not take advantage
of the opportunity. For example, when he was discharged into a Stepdown program where he
was provided substance abuse counseling and other services, he left the center and then returned
and failed drug tests and was re-incarcerated. Finally, at the outset, respondent was referred for
parenting classes and he did not participate and respondent did not present any proof of suitable
income or a suitable living arrangement.
In short, the record shows that respondent had not overcome his drug addiction or the
criminality that resulted in his felony convictions and incarceration that led to the initial
adjudication in this case. Respondent had nearly 15 months to change his behavior and comply
with his treatment plan, but he failed to do so and there was no evidence to support that
respondent would rectify the conditions within a reasonable amount of time considering JH’s
age. MCL 712A.19b(3)(c)(i). Similarly, the same evidence supported the trial court’s finding
that respondent failed to provide proper care or custody of JH and that there was no likelihood
that he would be able to do so within a reasonable amount of time considering JH’s age. MCL
712A.19b(3)(g). Given our conclusion that one ground for termination was established by clear
and convincing evidence, we need not address the trial court’s other grounds for termination. In
re Utrera, 281 Mich. App. 1, 24; 761 NW2d 253 (2008).
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B. Best Interests
Next, respondent argues that the court erred in concluding that termination was in the
JH’s best interests.
We review for clear error a trial court’s conclusion that terminating a respondent’s
parental rights is in the child’s best interests. In re Olive/Metts Minors, 297 Mich. App. at 40.
If the circuit court determines that clear and convincing evidence supports a statutory
basis for the termination of parental rights, “it shall order termination of parental rights if it finds
‘that termination of parental rights is in the child’s best interests[.]’” In re Jones, 286 Mich. App.
126, 129; 777 NW2d 728 (2009), quoting MCL 712A.19b(5). “[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).
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. 701, 713-714; 846 NW2d 61
(2014) (internal quotation marks and citation omitted).]
In this case, the circuit court did not clearly err in finding that termination was in JH’s
best interests. At the time of the termination, JH had lived with his maternal grandmother since
his birth and she was interested in adopting him. The record indicated that JH was “thriving” in
the grandmother’s care. The grandmother provided a stable home environment and the
permanency that JH needed and, contrary to respondent, the grandmother was wholly invested in
JH’s life. In contrast, respondent did not provide anything for JH and was not invested in JH’s
life. He did not provide financial or emotional support and when he was on parole he did not
visit the child on a regular basis. Respondent had not made progress with his substance abuse
problem and he could not conform his behavior to the terms of his parole. Respondent
absconded from parole and repeatedly failed drug screenings. He did not offer proof of suitable
income or suitable housing. The record showed that respondent could not offer the care and
long-term stability that JH needed. Accordingly, the trial court did not clearly err in finding that
termination was in JH’s best interests. In re Moss, 301 Mich. App. at 90.
Affirmed.
/s/ Stephen L. Borrello
/s/ Jane E. Markey
/s/ Michael J. Riordan
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