in Re Petoskey Minors ( 2020 )

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UNPUBLISHED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 PETOSKEY, Minors. November 19, 2020
No. 347460
Ingham Circuit Court
Family Division
LC No. 17-001112-NA
17-001113-NA
Before: MARKEY, P.J., and METER and GADOLA, JJ.
PER CURIAM.
Respondent-mother, the mother of the minor children MIP and MEP, and respondent-
father, the biological father of MEP, appeal by delayed leave granted1 the trial court’s order
terminating their respective parental rights to these children pursuant to MCL 712A.19b(3)(c)(i),
(g), and (j).2 We affirm.
I. STATUTORY GROUNDS FOR TERMINATION
Respondents, who are proceeding in propria persona, raise several issues on appeal. We
begin by addressing their argument that the trial court erred in finding that petitioner presented
clear and convincing evidence to establish the statutory grounds for termination. We review for
clear error a trial court’s finding that a statutory ground for termination has been proved by clear
and convincing evidence. In re Hudson, 294 Mich. App. 261, 264; 817 NW2d 115 (2011). “A
finding is clearly erroneous if, although there is evidence to support it, this Court is left with a
definite and firm conviction that a mistake has been made.” Id. When applying this standard,
“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).
1
In re Petoskey, unpublished order of the Court of Appeals, entered March 4, 2020 (Docket No.
347460).
2
MIP’s father was unidentified.
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“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). The trial court found that
grounds for terminating respondents’ parental rights were established under MCL
712A.19b(3)(c)(i), (g), and (j), which allow for termination under the following circumstances:
(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.
With respect to MCL 712A.19b(3)(c)(i), the trial court found that neither respondent had
rectified the conditions that led to the adjudication. The evidence supports this finding. Evidence
was presented that respondents failed to participate in the children’s medical and educational
services, despite having an opportunity to do so. The children’s treatment providers testified about
the children’s medical conditions, their autism, their serious developmental delays, and the
extensive medical, educational, and emotional support services they required in order to progress.
Respondents did little to nothing to address these issues before the children entered care, and apart
from completing a general parenting class, neither respondent meaningfully participated in other
services to allow them to address the children’s special needs. Respondent-mother acknowledged
that she had not participated in the children’s medical appointments while they were in foster care.
Similarly, respondent-father acknowledged that he did not have contact with MIP’s foster parents
and did not attend the children’s medical appointments or autism screenings except for
vaccinations. Although respondents maintained that they were not timely notified of the children’s
appointments, this was contradicted by the children’s caseworker. Moreover, there was no
evidence that respondents seriously attempted to otherwise become involved and engaged in the
children’s treatments. Although MEP’s autism therapy occurred in her foster home, which limited
respondents’ ability to participate in that therapy, respondents never made enough progress to have
the children for overnight or other extended visits. MEP’s therapist explained that she was not
assisting respondents because they were not having home visits, but would be able to assist them
if MEP was returned to their care. Respondents never progressed to that point.
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The trial court’s findings are also supported by the therapist’s opinion that MEP’s success
in treatment depended on consistency, above-average patience, and a strong commitment and
desire that MEP “rise.” The therapist explained the importance for parents to be prepared even if
their child is in foster care because that was an important part of nurturing. Respondents did not
demonstrate a strong commitment to resolving the issues that caused the children to come into
care, much less demonstrate that they were strongly committed to ensuring that the children would
have enough support in the future.
Although respondents had made progress with their housing, the court’s finding that
housing remained a barrier is supported by the testimony. Respondent-father was working, and
respondents had obtained housing, but the stability of their housing remained questionable because
of recent eviction proceedings.
Although respondents had begun consistently attending parenting time, the caseworker and
MEP’s therapist both testified about respondents’ failure to bring supplies for the children. The
caseworker further testified that on occasion respondents were able to manage the children’s
meltdown behaviors, but they still were unable to recognize some of MEP’s other destructive
behaviors. The caseworker had not seen any new behaviors during parenting times that reflected
progress or benefit from parenting classes.
Respondents’ substance abuse was not a reason for the court’s initial exercise of
jurisdiction. However, the initial service plan contained prohibitions against possessing alcohol
or legal or illegal substances, and it required respondents to report any prescriptions and participate
in drug screenings. Although respondents’ substance abuse is more relevant to the trial court’s
analysis of MCL 712A.19b(3)(g) and (j), the court’s finding that substance abuse remained a
barrier to reunification is not clearly erroneous. Respondent-mother left a rehabilitation program
early and against the advice of the treatment providers, and she thereafter continued to test positive
for cocaine and Xanax. Although respondent-father had made some progress, he continued to test
positive for cocaine in June and August 2018, and he continued to use marijuana without a valid
medical marijuana card. Respondent-father asserts that he received a medical marijuana card on
November 21, 2018, but this was after proofs were closed on November 15, 2018. Although
respondent-father attended some therapy sessions, he acknowledged that he missed a number of
group sessions in October 2018, and he could not recall whether he missed any in August or
September. Thus, to the extent that respondents’ substance use was a factor in why the children
were placed in care, the trial court did not clearly err by finding that this remained a barrier to
reunification.
The trial court also did not clearly err when it found that these conditions would not be
rectified within a reasonable time. Respondents had made minimal progress during the 16-month
period the children had been in foster care. Although substance abuse, standing alone, may not be
sufficient to support terminating parental rights under MCL 712A.19b(3)(c)(i), (g), and (j), see In
re LaFrance Minors, 306 Mich. App. 713, 731; 858 NW2d 143 (2014), the testimony in this case
demonstrated the children’s needs for essentially constant care and that neither respondent was
prepared to meet those needs. Given this testimony, the trial court’s finding that respondent-
mother’s continued drug use would affect her ability to meet the children’s needs and protect the
children from each other is not clearly erroneous. In addition, the psychological evaluations
recommended that both respondents demonstrate six months of sobriety before considering them
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for unsupervised parenting time. At the time of the hearing, neither respondent had achieved that
goal.
Accordingly, the trial court did not clearly err by finding that respondents had not rectified
the conditions that led to the children’s adjudication, and there was no reasonable likelihood that
the conditions would be rectified within a reasonable time considering the children’s ages.
With respect to MCL 712A.19b(3)(g), the trial court found that both respondents were
unable to provide proper care and custody, irrespective of their financial circumstances. The court
noted that the ability to provide proper care and custody goes beyond just the capacity to provide
for a child’s physical needs such as housing, food, and clothing. The trial court again relied on the
evidence of respondents’ inability or unwillingness to attend the children’s medical and
educational appointments, which would have enabled them to better understand and appropriately
address the children’s needs. The court also noted that while respondents had complained about
being given late notice of some of the appointments, there was no indication that they were
proactive in asking about them.
The trial court’s findings are supported by the evidence concerning the children’s medical
needs and respondents’ failure to participate in services offered to the children. In addition, the
court’s finding that respondents were not proactive about attempting to learn how they could care
for or help address the children’s autism is supported by the evidence of their lack of concern about
how their missed parenting time visits upset MIP. Respondents complain about being required to
show up early for parenting time, but this requirement was imposed because of their repeated
failure to show up for scheduled parenting time sessions without notice, which negatively affected
the children. Respondents’ continued substance abuse also demonstrates their continued inability
to provide proper care and custody, especially considering the children’s special needs, which
required constant care. Considering the children’s special needs, the amount of time the children
had been in care, and respondents’ lack of progress, the trial court also did not clearly err by finding
that respondents would not be able to provide proper care and custody within a reasonable time.
With respect to MCL 712A.19b(3)(j), this Court has held that “a parent’s failure to comply
with the terms and conditions of his or her service plan is evidence that the child will be harmed if
returned to the parent’s home.” In re White, 303 Mich. App. 701, 711; 846 NW2d 61 (2014). In
addition, emotional harm to a child is sufficient to support termination under § 19b(3)(j). In re
Hudson, 294 Mich. App. at 268. The trial court’s reliance on § 19b(3)(j) is supported by the
evidence of respondents’ minimal progress in complying with their service plan. The caseworker’s
observations of parenting time also support the court’s finding that respondents lacked the capacity
to manage the children’s special needs or to address their negative behaviors, particularly the
children’s aggression toward each other. When coupled with respondents’ unwillingness to
become involved in medical and educational appointments, the trial court did not clearly err by
finding that the children were reasonably likely be harmed if returned to respondents’ home.
II. BEST INTERESTS
Respondents also argue that the trial court erred by finding that termination of their parental
rights was in the children’s best interests. We disagree. We review for clear error the trial court’s
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finding that termination of parental rights is in a child’s best interests. In re Payne/Pumphrey/
Fortson, 311 Mich. App. 49, 63; 874 NW2d 205 (2015).
“If the court finds that there are grounds for termination of parental rights and 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.” MCL 712A.19b(5). Whether termination of parental rights is in a child’s best interests is
determined by a preponderance of the evidence. In re Olive/Metts, 297 Mich. App. 35, 40; 823
NW2d 144 (2012). Factors to be considered 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.” Id. at 41-42 (citations omitted). A court may also consider
whether it is likely “that the child could be returned to her parents’ home within the foreseeable
future, if at all.” In re Frey, 297 Mich. App. 242, 248-249; 824 NW2d 569 (2012).
The trial court found that the children’s bond with respondents was slight, with MEP a little
more bonded to respondent-father. The court also found that the children did not have a sibling
bond. The court again noted that respondents had made little progress in improving their parenting
abilities, and believed that respondents still had not acknowledged their previous neglect of the
children’s medical and developmental needs, which had been harmful to the children. The court
also observed that testimony had been presented regarding the children’s strong needs for
permanency, finality, and stability, and noted that the children had been out of respondents’ home
since July 2017. The court noted that although respondents had asked for another reporting period,
this had actually occurred over the course of the termination hearing, and respondents still had not
demonstrated that they were anywhere close to being able to provide the necessary stability. The
court observed that the children were advancing in their development in their foster placements,
where their needs were being met, which favored termination, and it noted that the children were
not in relative placements, which also weighed in favor of termination.
The trial court did not clearly err by finding that termination of respondents’ parental rights
was in the children’s best interests. As discussed earlier, the court did not clearly err when it found
that respondents had made minimal progress in addressing the barriers to reunification during the
16 months the children were in foster care. More significantly, trauma assessments performed
after the children’s removal in August 2017, revealed that both children had suffered from trauma
and had significant developmental delays. MEP’s therapist testified about the strides the child had
made while in foster care. MEP was well adjusted to her foster home, knew the routine, and
seemed very satisfied in her day-to-day activities. MEP’s therapist thought the foster home was a
stable environment where MEP’s routine was consistent. MEP considered the foster placement to
be her home and her therapist testified that this stability was important for MEP’s continued
success.
MIP’s therapist testified that MIP’s behaviors had also improved in foster care. He was
talking more, was less aggressive, his tolerance for his peers had grown, and he was recovering
from his earlier developmental delays. MIP seemed bonded with his foster parents, his
environment with them was stable and consistent, and it was a good environment for MIP to be in.
MIP’s foster-mother also had experience working with autistic individuals. Although respondent-
father asserts that the trial court unfairly held his continued marijuana use against him, it is evident
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that the trial court was more focused on the children’s special needs and respondents’ inability to
meet those needs within a reasonable time.
In sum, a preponderance of the evidence supports the trial court’s finding that termination
of respondent’s parental rights was in the children’s best interests.
III. REASONABLE EFFORTS
Respondents also argue that petitioner did not make reasonable efforts to reunify them with
their children, including by failing to consider placement of the children with relatives. We
disagree.
Although petitioner “has a responsibility to expend reasonable efforts to provide services
to secure reunification, there exists a commensurate responsibility on the part of respondents to
participate in the services that are offered.” In re Frey, 297 Mich. App. at 248. “Not only must
respondent[s] cooperate and participate in the services, [they] must benefit from them.” In re TK,
306 Mich. App. 698, 711; 859 NW2d 208 (2014). We review for clear error a trial court’s decision
regarding reasonable efforts. In re Fried, 266 Mich. App. 535, 542-543; 702 NW2d 192 (2005).
The trial court’s findings that petitioner made reasonable efforts to reunify respondents
with their children is not clearly erroneous. The caseworker testified regarding the many services
that were offered to respondents, which included psychological evaluations, substance abuse
assessments, substance abuse treatment, drug testing, individual and couples therapy, and
parenting classes. Indeed, respondent-father testified that he was offered and allegedly
participated in a number of services, including the psychological examination, substance abuse
testing, parenting classes, parenting time, and substance abuse and group therapy. Although
respondent-father denied that he was provided with the results of his psychological evaluation and
denied being referred for therapy, he acknowledged that he had signed paperwork stating that a
referral had been made for individual therapy the day before he completed his psychological
evaluation.
The trial court also did not clearly err when it found that respondents failed to participate
in or benefit from the services offered. Respondents’ psychological evaluations were delayed until
April 2018, because of respondents’ failure to cooperate with earlier appointments. Similarly, the
caseworker explained that substance abuse assessments were delayed because respondents initially
refused to admit to any drug use. Although respondent-mother eventually entered a detoxification
and rehabilitation program, she left after two weeks without completing the program, against the
recommendations of the treatment providers. Afterward, she continued to test positive for THC,
cocaine, and Xanax. Although respondent-father claimed that MEP’s service providers never
involved him with her services, the caseworker testified that respondents were provided with
information about an education plan meeting and respondent-father said they would attend, but
then they did not appear. At the time of the permanency planning hearing, respondents also had
not recently met with the autism therapist. When asked by respondent-father’s counsel whether
there were additional specialized skills or training that respondent-father could obtain in dealing
with the children’s autism, the caseworker stated that respondents would have to become involved
in MIP’s individual education program and then other conversations would occur with service
providers as to what they could provide. However, she also testified that respondent-father would
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need to be working toward sobriety. With respect to respondents’ claim that they were unfairly
treated during parenting time and forced to arrive 30 minutes to an hour early for visits, the record
discloses that this requirement was imposed because of respondents’ history of no-shows.
In sum, the record does not support respondents’ argument that petitioner failed to make
reasonable efforts to reunify respondents with their children. Rather, reasonable reunification
services were offered, but respondents failed to participate in or benefit from those services.
We also reject respondents’ claim that petitioner and the trial court failed to explore the
possibility of relative placement. Respondents offered respondent-father’s mother and
respondent-father’s grandmother as placement options. Petitioner investigated those placements
and determined that respondent-father’s mother was not a viable placement option because she
was on the Central Registry because of her criminal history. Respondent-father’s grandmother
was found to be an unsuitable placement option because of concerns about her health and her age,
particularly given the special needs of the children, who required around-the-clock care. This
claim of error is without merit.
IV. INEFFECTIVE ASSISTANCE OF COUNSEL
Next, respondents both argue that they did not receive the effective assistance of counsel.
“The principles applicable to claims of ineffective assistance of counsel in the arena of criminal
law also apply by analogy in child protective proceedings . . . .” In re Martin, 316 Mich. App. 73,
85; 896 NW2d 452 (2016). Because this issue was not raised in an appropriate motion in the trial
court, our review of this issue is limited to errors apparent from the record. People v Lopez, 305
Mich. App. 686, 693; 854 NW2d 205 (2014); People v Matuszak, 263 Mich. App. 42, 48; 687 NW2d
342 (2004).
Parents have a right to counsel in parental rights termination cases. In re Williams, 286
Mich. App. 253, 275-276; 779 NW2d 286 (2009). “The right to counsel includes the right to
competent counsel.” In re Simon, 171 Mich. App. 443, 447; 431 NW2d 71 (1988). To establish
ineffective assistance of counsel, respondents must show that: (1) counsel’s representation “fell
below an objective standard of reasonableness”; and (2) but for counsel’s deficient performance,
there is a reasonable probability that the outcome of the proceeding would have been different.
People v Vaughn, 491 Mich. 642, 670; 821 NW2d 288 (2012), citing Strickland v Washington, 466
U.S. 668, 688-694; 104 S. Ct. 2052; 80 L. Ed. 2d 674 (1984). “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. Respondents
must “overcome the strong presumption that counsel’s performance was born from a sound trial
strategy.” People v Trakhtenberg, 493 Mich. 38, 52; 826 NW2d 136 (2012). Because respondents
bear the burden of demonstrating both deficient performance and prejudice, they necessarily bear
the burden of establishing the factual predicate for their claims. People v Carbin, 463 Mich. 590,
600; 623 NW2d 884 (2001).
Respondents cite no authority and provide very little argument in support of their
ineffective-assistance claims. Respondents assert that respondent-mother’s attorney was
“overworked,” which they claim compromised his representation “due to him forgetting key facts
and mixing up cases.” Respondents do not provide any record citations in support of this claim
and they do not otherwise explain what facts counsel allegedly forgot or how counsel “mixed up
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cases” or seemed confused. Because respondents have failed to provide any underlying factual
support for their claim that respondent-mother’s attorney performed deficiently, this claim cannot
succeed. Carbin, 463 Mich. at 600.
Respondent-father does not assert that the attorney who represented him at the termination
hearing performed deficiently. Rather, the basis for his claim is that he was represented by three
other attorneys in earlier proceedings. He asserts that the outcome would have been different if
his final attorney had represented him during the entire case. Respondent-father’s first attorney
ceased representing respondent-father because that attorney was also representing respondent-
mother and the trial court determined that separate counsel was necessary to avoid a conflict of
interest. Respondent-father’s second attorney died during the proceedings. His third attorney
represented respondent-father only briefly before being allowed to withdraw due to an out-of-state
conflict on the date of the scheduled termination hearing.
Although respondent-father’s last attorney was appointed a couple of weeks before the
termination hearing began, the trial court adopted procedures to ensure that counsel had adequate
time to subpoena any witnesses for respondent-father and to ensure that counsel was prepared to
confront petitioner’s witnesses. Counsel identified only one witness listed by petitioner whom he
needed more time to investigate. The trial court instructed petitioner not to call that witness on the
first day of the hearing. The witness did not testify until the second day of the hearing, which was
held more than a month later, and there was no contention that counsel was unprepared to address
the witness’s testimony at that time. The court also stated that the hearing would be continued on
future dates to allow counsel time to subpoena any witnesses he wanted to call on behalf of
respondent-father. As noted by petitioner, counsel did not call any witnesses until two months
after the first day of the hearing. Later, when counsel requested an adjournment to enable
respondent-father to call another witness, the court granted counsel’s request. Ultimately,
however, respondent-father decided not to call the witness.
In sum, the record does not support respondent-father’s suggestion that counsel’s late
appointment prevented counsel from effectively representing respondent-father at the termination
hearing. Respondent-father does not identify any witnesses who counsel failed to call or any
evidence that counsel failed to present, and he does not otherwise explain how counsel was
unprepared to address petitioner’s witnesses and evidence, or performed deficiently. Moreover,
any argument that the outcome would have been different if respondent-father’s last attorney had
been appointed earlier is pure speculation, especially considering that respondent-father fails to
explain how his prior attorneys performed deficiently. For these reasons, we reject respondent-
father’s claim that he was denied the effective assistance of counsel.
V. JURISDICTION
Respondents also challenge the trial court’s decision to exercise jurisdiction over the
children following a bench trial. We review the trial court’s decision to take jurisdiction in child
protective proceedings “for clear error in light of the court’s findings of fact[.]” In re BZ, 264
Mich. App. 286, 295; 690 NW2d 505 (2004). To properly exercise jurisdiction, the trial court must
find that a preponderance of the evidence supports a statutory basis for jurisdiction. Id.; MCR
5.972(C)(1).
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MCL 712A.2(b) provides, in pertinent part:
Jurisdiction in proceedings concerning a juvenile under 18 years of age
found within the county:
* * *
(2) Whose home or environment, by reason of neglect, cruelty,
drunkenness, criminality, or depravity on the part of a parent, guardian, nonparent
adult, or other custodian, is an unfit place for the juvenile to live in. As used in this
sub-subdivision, “neglect” means that term as defined in section 2 of the child abuse
and neglect prevention act, 1982 PA 250, MCL 722.602.
One of the reasons the children were removed from respondents’ care was because
respondents were homeless and the children were staying with an aunt, who struck MEP in the
face causing an injury. The aunt notified respondents of this and they were able to see the bruising
on MEP’s face, but returned the children to the aunt’s care. The aunt’s testimony was corroborated
by the person with whom respondents were living at the time and by a text message that the aunt
had sent to respondent-mother. Respondents appear to argue that this testimony was insufficient
to support the court’s exercise of jurisdiction because these witnesses were not credible.
Respondents claim that the aunt and her husband were motivated to testify falsely to lessen their
criminal culpability, and the person with whom they were living was biased against them because
he had stolen respondents’ belongings in an attempt to blackmail them. The trial court, however,
found that these witnesses provided credible testimony. This Court ordinarily defers to a trial
court’s findings regarding credibility. In re Miller, 433 Mich. at 337; MCR 2.613(C).
Moreover, respondents do not cite anything in the record to suggest that the person with
whom they were staying had stolen anything from them, had blackmailed them, or was in any way
hostile to them. With respect to the aunt, the trial court noted that she had nothing to gain by
admitting that she had slapped MEP so hard that it left a significant bruise and that the aunt would
not have simply left the children at her home when going to respondents’ home. The aunt’s
testimony was also corroborated by the testimony of the Child Protective Services worker who
reviewed the text message that the aunt sent to respondent-mother shortly after the aunt struck
MEP. Thus, respondents have failed to demonstrate any clear error in the trial court’s decision to
find these witnesses credible with respect to whether respondents allowed the children to return to
the aunt’s home after learning that the aunt had struck MEP and they had seen the injuries to the
child.
In addition, respondents do not discuss the additional bases for the trial court’s finding that
a statutory ground for jurisdiction was established. The court also found that petitioner had shown
by a preponderance of the evidence that respondents had neglected the children’s medical needs
associated with their developmental delays. This finding, coupled with respondents’ admission
that they were essentially homeless, was also sufficient to permit the court to take jurisdiction over
the children even without the evidence that respondents had allowed the children to return to the
aunt’s home. Accordingly, there is no merit to respondents’ challenge to the trial court’s exercise
of jurisdiction over the children.
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VI. RIGHT TO APPEAL
Respondents also argue that they were denied due process because the trial court failed to
advise them of their right to appeal the jurisdictional decision. Although there is no indication in
the record that the trial court advised respondents of a right to appeal the court’s jurisdictional
decision, the remedy for such an error is to allow a respondent to challenge the court’s
jurisdictional decision in an appeal of a later order terminating parental rights. Cf. MCR 3.972(G).
Respondents have challenged the trial court’s jurisdictional decision in this appeal and we have
addressed and decided that issue. Because respondents have been afforded the opportunity to
challenge the court’s jurisdictional decision, this claim of error is moot. Gleason v Kincaid, 323
Mich. App. 308, 314; 917 NW2d 685 (2018); Barrow v Detroit Election Comm, 305 Mich. App. 649,
659; 854 NW2d 489 (2014). Therefore, it is not necessary to further consider this issue.
Affirmed.
/s/ Jane E. Markey
/s/ Patrick M. Meter
/s/ Michael F. Gadola
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