in Re K R Short Minor ( 2016 )

STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
In re K. R. SHORT, Minor. September 27, 2016
No. 332110
Wayne Circuit Court
Family Division
LC No. 15-520033-NA
Before: BORRELLO, P.J., and MARKEY and RIORDAN, JJ.
PER CURIAM.
Respondent-father appeals as of right an order terminating his parental rights to his child,
KS, pursuant to MCL 712A.19b(3)(g) (failure to provide care and custody), MCL
712A.19b(3)(h) (incarceration of parent), MCL 712A.19b(3)(i) (parental rights to one or more
siblings terminated), and MCL 712A.19b(3)(j) (reasonable likelihood of harm). For the reasons
set forth in this opinion, we affirm.
I. BACKGROUND
Petitioner initiated child protective proceedings relating to KS, alleging in relevant part
that KS was living with her biological mother who failed to provide adequate care and suitable
housing. According to the petition, respondent did not provide housing or financial assistance,
and he was to be incarcerated until the 2040s.
Respondent-father appeared by telephone at the preliminary hearing, and the court
explained that it would send respondent an affidavit of parentage so that he could become KS’s
legal rather than her putative father. The trial court authorized the petition and arranged for
respondent to appear via video for future hearings. At the pretrial hearing, respondent appeared
by video, but the affidavit of parentage was not yet complete.
At the next hearing, respondent asserted that he had signed and returned the affidavit of
parentage relating to KS. Respondent admitted that he was in prison with the earliest possibility
of release in 2047. He testified that he had been convicted of two counts of kidnapping, two
counts of armed robbery, criminal sexual conduct, possession of a firearm during the
commission of a felony, felonious assault, and possession of a firearm by a felon. But
respondent asserted that he had appealed his convictions, and he believed that he would be
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released “next year or the year after that.”1 Respondent admitted that he was unable to
financially care for KS or provide her with a home. But he testified that his sister wanted to care
for KS. When asked if his sister had contacted the petitioner, respondent asserted that he would
talk to his sister, and the court explained that it would provide respondent with a phone number
and that his sister should contact the petitioner.
Respondent admitted that his parental rights to another child were terminated in 2010.
Caseworker Raven Hoke explained that the treatment plan for respondent would most likely
include supervised parenting time, parenting classes, a psychological assessment, and individual
counseling. However, when the court informed her that respondent was incarcerated, Hoke
stated that parenting time would probably not be requested. The trial court did not order
visitation because respondent’s parental rights to another child had been previously terminated,
but the court stated that respondent would be allowed to send letters and make phone calls. The
court entered an order of adjudication.
At the dispositional hearing, Hoke testified that she mailed respondent a written treatment
plan and that his affidavit of parentage had been filed. She expected him to sign and return the
treatment plan. According to Hoke, she did not know what services respondent could receive in
prison, and she was waiting on respondent’s prison to provide her with information about
available services. The court inquired about the earliest date of release for respondent, and Hoke
explained that it was in 2047. The court stated that petitioner did not need to provide services to
respondent because he was incarcerated. The court explained that it would allow respondent to
contact his child by phone or write letters, but indicated that petitioner “can’t go give him
counseling or parenting classes,” elaborating that “we’re in the reunification business with the
parent who’s not incarcerated [sic] until 2047.” The court explained that respondent could
participate in any services available in prison, but that the petitioner could not go there to provide
him with the services.
Petitioner filed a supplemental petition to terminate respondent’s parental rights based on
the termination of his rights to another child, his incarceration, and his criminal history.
On the first day of the termination hearing, the court adjourned with respect to the
respondent’s termination because it could not secure his appearance by video. On the second
day, the court admitted a 2010 order terminating respondent’s parental rights to a different
daughter, respondent’s biographical information from OTIS, and a 2013 judgment of sentence
indicating that respondent had been convicted of nine criminal counts. The court then took
testimony from the case worker.
Hoke testified that KS was three years old, and was placed in a foster home. Hoke
explained that she sent respondent a treatment plan and her contact information, but she did not
receive anything back from respondent. According to Hoke, KS’s mother indicated that
1
Respondent’s convictions and sentences were affirmed in People v Howard James McKnight,
unpublished opinion per curiam of the Court of Appeals, issued April 21, 2015 (Docket No.
319979) lv den 498 Mich. 907 (2015).
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respondent had never had a relationship with KS before he was incarcerated, and he had not had
contact with KS after going to prison. Hoke testified that it was in KS’s best interest to terminate
parental rights because respondent could potentially be incarcerated until 2080, he provided no
financial support, and he was unable to parent. She also indicated that respondent’s parental
rights to another child were previously terminated, and that his criminal record for kidnapping
and first-degree criminal sexual conduct concerned her.
Hoke testified that respondent’s treatment plan called for parenting classes, counseling,
and supervised parenting time if allowed in prison. She explained that she contacted
respondent’s prison counselor and exchanged emails, but no one had informed her whether
services could be provided to respondent at the prison. Hoke explained that she was unsure if
respondent had received individual counseling from his prison counselor, and she agreed that
neither parenting classes nor supervised parenting time were arranged for respondent. Hoke
testified that respondent posed no risk of harm to KS because he would be incarcerated for the
entire time that she would be a minor.
Respondent testified that he had previously been incarcerated, and that he had only been
out of prison for “three or four months” after KS was born. According to respondent, he
provided diapers and formula for KS “two or three times,” was “around her every day,” and
babysat for her twice. Respondent admitted that his earliest release date was 2047, but he
claimed that he was in contact with the Innocence Project and he believed that DNA evidence
would result in his convictions being overturned. He testified that he felt he was innocent, that
his attorney did not call an alibi witness, and that he planned to file an appeal with a federal
court. Respondent testified that he received the treatment plan and sent back a response but that
it was returned because there was something wrong with the address. Respondent testified that
he had not been able to take parenting classes or get individual counseling, and he did not know
of any opportunities to do so while in prison. Respondent testified that his mother and sister
wanted to see KS and could provide her with love and support.
Respondent admitted that his parental rights to another daughter were terminated in 2010,
explaining that this occurred because he “wasn’t there,” did not show up to court, and could not
attend parenting classes because he was “in and out of jail.” Respondent testified that the
daughter came under the court’s care because her mother “shook her up,” but he was not present
when that happened. He agreed with the court’s statement that the mother had admitted to
shaking the child because she was mad at respondent. According to respondent, the child was
ultimately adopted by her maternal grandfather. Respondent asserted that this was the first time
he had been imprisoned, but he had been in and out of jail since 2008. According to respondent,
he could not contact the caseworker if he did not have funds for the prison phone, and he could
not send anything to KS because he did not know where she was. He explained that he was
arrested in 2008 for assaulting and resisting a police officer and was arrested again in 2012 for
unarmed robbery.
The trial court found that respondent would be incarcerated for at least 30 years and
potentially longer if not released at the earliest opportunity. The court also found that it was
uncontroverted that respondent’s parental rights to another child had been terminated in 2010,
and that there was nothing respondent could do to provide proper parenting for KS. The court
determined that the petitioner had proved that termination was proper under MCL
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712A.19b(3)(g) because respondent was unable to provide custody and could not do so within a
reasonable time because he would be incarcerated for at least 30 years. The court also found that
termination was proper under MCL 712A.19b(3)(h) for the same reason. The court determined
that termination was proper under MCL 712A.19b(3)(i) because of the evidence adduced that
respondent’s parental rights to his other child had been terminated involuntarily. The court
asserted that under MCL 712A.19b(3)(j) there was a reasonable likelihood based on respondent’s
conduct that the child would be harmed. The court also found that it was in KS’s best interests to
terminate respondent’s parental rights. The court entered a written order on March 7, 2016. This
appeal ensued.
II. STATUTORY GROUNDS FOR TERMINATION
Respondent argues that the trial court clearly erred when it found that petitioner
established multiple statutory grounds for termination by clear and convincing evidence.
The trial court’s decision that a ground for termination of parental rights has been proven
by clear and convincing evidence is reviewed for clear error. In re BZ, 264 Mich. App. 286, 296;
690 NW2d 505 (2004). “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.” Id. at 296-297.
Under MCL 712A.19b(3)(i), termination of parental rights is proper if “[p]arental rights
to 1 or more siblings of the child have been terminated due to serious and chronic neglect or
physical or sexual abuse, and prior attempts to rehabilitate the parents have been unsuccessful.”
MCL 712A.19b(3)(i). “The clear language of the statute requires the court to determine the
success of prior rehabilitation efforts as of the date of the termination hearing.” In re Gach, ___
Mich App ___, ___; ___ NW2d ___ (2016) (Docket No. 328714); slip op at 5.
It is undisputed that respondent’s parental rights to another child, DM, were previously
terminated in 2010. Respondent first contends that there is no evidence, aside from his own
testimony, that prior efforts to rehabilitate him failed before the 2010 termination. At the
termination hearing in the present case, respondent testified about treatment and remedial
services during the 2010 case, stating that he went “to a couple parenting classes.” According to
respondent, his parental rights to DM were terminated because he “wasn’t there,” did not attend
court hearings, and did not attend parenting classes because he was “in and out of jail.”
Respondent’s testimony establishes that previous efforts at rehabilitation failed. In any event,
the court in the 2010 case terminated respondent’s parental rights to DM in part based upon
MCL 712A.19b(3)(c)(ii), which provides:
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.
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The trial court was required to find that respondent failed to rectify adverse conditions despite
notice and a reasonable opportunity to do so. Thus, the failure of the previous effort to
rehabilitate respondent was one of the very reasons that the court terminated his parental rights to
DM.
Respondent also argues that there is no evidence that his parental rights to DM were
terminated because of serious or chronic neglect, or physical or sexual abuse by him.
Respondent asserts that DM’s mother physically abused her, and he testified that he was not
present at the time of the abuse. However, the record shows that respondent neglected the child.
The trial court terminated his parental rights to DM in part based upon MCL 712A.19b(3)(a)(ii),
which states: “The child’s parent has deserted the child for 91 or more days and has not sought
custody of the child during that period.” Thus, the trial court previously determined that
respondent abandoned DM for 91 or more days. Accordingly, the trial court in this case did not
clearly err by terminating respondent’s parental rights under MCL 712A.19b(3)(i).
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).
III. SUFFICIENCY OF SERVICES
Respondent next argues that petitioner did not make reasonable efforts to provide him
with reunification services. Respondent also asserts that the trial court improperly determined
that petitioner was not required to provide respondent with services because respondent would be
incarcerated until 2047. We disagree.
“The time for asserting the need for accommodation in services is when the court adopts
a service plan, not at the time of a dispositional hearing to terminate parental rights.” In re
Terry, 240 Mich. App. 14, 27; 610 NW2d 563 (2000). Here, respondent never asserted that
petitioner failed to make reasonable efforts to provide services and thus, did not preserve this
argument. Review of unpreserved issues is limited to plain error affecting substantial rights.
Kern v Blethen-Coluni, 240 Mich. App. 333, 336; 612 NW2d 838 (2000). “To avoid forfeiture
under the plain error rule, three requirements must be met: 1) error must have occurred, 2) the
error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights.” People v
Carines, 460 Mich. 750, 763; 597 NW2d 130 (1999).
“Generally, when a child is removed from the parents’ custody, the petitioner is required
to make reasonable efforts to rectify the conditions that caused the child’s removal by adopting a
service plan.” In re HRC, 286 Mich. App. 444, 462; 781 NW2d 105 (2009). “Reasonable efforts
to reunify the child and family must be made in all cases except those involving aggravated
circumstances. . . .” Id. (internal quotation marks omitted, emphasis in original). The issue of
whether reasonable services were offered to a respondent ultimately relates to the issue of
sufficiency of the evidence for termination of parental rights. In re Fried, 266 Mich. App. 535,
541; 702 NW2d 192 (2005).
However, reasonable efforts to reunify a parent and child are not required if “[t]he parent
has had rights to the child’s siblings involuntarily terminated.” MCL 712A.19a(2)(c).
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Respondent’s parental rights to another child were previously terminated in 2010; thus,
reasonable efforts were not required under MCL 712A.19a(2)(c). Reasonable efforts are also not
required if “[t]he parent is required by court order to register under the sex offenders registration
act.” MCL 712A.19a(2)(d). Respondent was convicted of first-degree criminal sexual conduct
and is a registered sex offender. Thus, reasonable efforts were not required under MCL
712A.19a(2)(d). Moreover, petitioner did make a service plan in this case, sent the plan to
respondent in prison, and contacted the prison to inquire about what services were available to
respondent. Respondent has not shown plain error relating to the lack of services provided
where the petitioner was not required to provide any services.
Respondent also asserts that the trial court erred by stating that petitioner could not
provide services to respondent because respondent was incarcerated. Indeed, “[t]he state is not
relieved of its duties to engage an absent parent merely because that parent is incarcerated.” In
re Mason, 486 Mich. 142, 152; 782 NW2d 747 (2010). However, while the trial court did inform
the petitioner that it could not provide services based upon the respondent’s incarceration, the
court elaborated, explaining that it merely meant that respondent could only utilize whatever
services were available in prison. Therefore, there is no indication that the trial court improperly
barred petitioner from attempting to engage respondent and respondent has not shown plain
error.
IV. BEST INTERESTS
Finally, respondent asserts that the trial court clearly erred in its determination that it was
in the KS’s best interests to terminate his parental rights.
“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) citing MCL 712A.19b(5).
When considering whether termination of parental rights is in the child’s best interests, the court
may consider “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.”
Id. at 41-42 (citations omitted). “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, 714; 846 NW2d 61 (2014).
The trial court’s decision regarding the child’s best interests is reviewed for clear error.
In re Trejo, 462 Mich. 341, 356-357; 612 NW2d 407 (2000). “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. at 296-297.
Respondent asserts that the trial court clearly erred by failing to consider that KS was
placed with a relative. Failure to consider a child’s placement with a relative renders the factual
record inadequate and requires reversal. Olive/Metts Minors, 297 Mich. App. at 43. However,
there is no record evidence that KS was placed with a relative. Our review of the record,
including foster care reports, indicates that KS was placed in an unrelated licensed foster home.
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Thus, the factual basis of respondent’s argument is absent, and we cannot conclude that the trial
court clearly erred on this basis.
Respondent also argues that the trial court clearly erred because finality and permanence
cannot be achieved by terminating only his parental rights where KS could still be returned to her
mother. But the court has the power to terminate the parental rights of only one parent. In re
Marin, 198 Mich. App. 560, 565-566; 499 NW2d 400 (1993). Respondent fails to cite any
authority requiring the trial court to terminate the parental rights of both parents. Further,
termination of respondent’s parental rights will bring finality and permanence with respect to
respondent’s own claim of parental rights. Thus, we are not persuaded that the trial court clearly
erred on this point.
Finally, respondent asserts that the trial court clearly erred in its best interest
determination because respondent requested that his sister or mother care for KS, and petitioner
allegedly made no effort to investigate these potential relative caregivers. This argument is
unrelated to the child’s best interests; instead, it concerns respondent’s ability to provide care and
custody despite incarceration. To that end, it relates to the trial court’s termination of parental
rights under MCL 712A.19b(3)(g) and (h). But we decline to address termination under these
grounds having already determined that termination was proper under MCL 712A.19b(3)(i). In
re Utrera, 281 Mich. App. at 24.
In sum, the trial court did not clearly err in finding that termination was in KS’s best
interests where respondent could not provide the care and custody that KS needed, where KS
needed stability and long-term planning, where respondent had a history of criminality, where
respondent would not be released from prison for a substantial amount of time, and where
respondent did not benefit from services offered in a prior termination proceeding. In re Trejo,
462 Mich. at 356-357.
Affirmed.
/s/ Stephen L. Borrello
/s/ Jane E. Markey
/s/ Michael J. Riordan
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