in Re barscewski/barscewski-mays Minors ( 2015 )

STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
In re BARSCEWSKI/BARSCEWSKI-MAYS, September 8, 2015
Minors.
No. 325409
Kent Circuit Court
Family Division
LC No. 12-052800-NA;
12-052801-NA;
12-052802-NA
Before: BOONSTRA, P.J., and MURPHY and MARKEY, JJ.
PER CURIAM.
Respondent appeals by right the trial court’s order terminating her parental rights to her
three minor children, BB, IB, and DB, under MCL 712A.19b(3)(c)(i) (conditions that led to the
adjudication continue to exist), (c)(ii) (other conditions to cause the child to come within the
court’s jurisdiction continue to exist), (g) (failure to provide proper care and custody), and (j)
(children will be harmed if returned to parent). We affirm.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
On September 7, 2012, petitioner petitioned the trial court to take jurisdiction over
respondent’s children, remove them from her home, and terminate her and the children’s father’s
parental rights.1 The basis of the petition was that the youngest child, DB, was admitted to the
hospital with multiple rib fractures and respondent failed to provide an explanation for the
fractures. DB was 13 days old at the time. The children were initially placed in foster care; the
oldest child, BB, was later placed with a maternal uncle but was returned to foster care after his
parents had unauthorized contact with him. Respondent entered into a treatment plan with
petitioner that identified her barriers to reunification or needs as emotional stability, substance
abuse, and parenting skills. Respondent was adjudicated in October 2012 and the trial court took
jurisdiction over the children. At the dispositional hearing, it was revealed that the children’s
father had convictions for assault and domestic violence and that respondent had been arrested
three times for domestic violence against the father. At least one domestic violence incident had
1
The children’s father voluntarily released his parental rights to the children on September 23,
2014 and is not a party to this appeal.
-1-
resulted in BB being accidentally hit by a cellular phone, although the record does not indicate
who threw the phone. Respondent had participated in a psychological evaluation and was
diagnosed with major depressive disorder. The caseworker also testified that BB had been
diagnosed with cognitive impairments and impaired motor skills. After the initial dispositional
hearing, the trial court ordered that reasonable efforts be made to reunify respondent and father
with the minor children.
Respondent initially actively participated in many services provided by petitioner,
including parenting classes, individual counseling, and anger management, and tested negative
for substances apart from her prescription medicines. Respondent interacted well with the
children during parenting times. Respondent continued to live with the children’s father.
Respondent and the children’s father denied responsibility for DB’s injuries. Respondent
treatment plan was updated to include among her issues her domestic relationship with the
children’s father. In January 2013, the children’s father was arrested for a domestic incident
where he threw something at respondent; he was jailed for two weeks but the charges were
eventually dropped.
At a permanency planning hearing in July 2013, respondent’s caseworker reported that
respondent was in the process of divorcing the children’s father and that she was actively
engaged in domestic violence treatment. BB was struggling with violent behaviors at school but
was doing well in his foster placement. DB and IB were doing well in their placements.
In October 2013, BB was released to respondent’s home. In January 2014, the
caseworker reported that DB was doing well in his foster care and extended visits with
respondent. The caseworker reported that IB had disclosed that she had witnessed many
instances of domestic violence between respondent and father in the past, and was participating
in counseling. IB had indicated that she was afraid of BB. BB had been prescribed medication
that improved his behaviors and was attending counseling; his school behavior was improving.
At that time, respondent told the caseworker that she was not living with the children’s father
and had minimal contact with him. However, the caseworker conducted an unannounced visit of
respondent’s home in November 2013, and found BB home alone with his father. Respondent
told her that she could not find anyone else to watch BB while she attended a counseling session
and that her neighbor, who normally watched him, had a family emergency. The neighbor
confirmed that she had been at the hospital for most of the day but denied that respondent had
asked her to babysit that day. At some point, IB disclosed to the caseworker that respondent had
hit her, but that allegation had not been investigated at the time of the hearing.
By April 2014, BB was still doing well in respondent’s home and his behaviors were
improving. IB had made two allegations that respondent had hit her during parenting time at her
home; however one of the allegations had not been substantiated and investigation into the other
allegation was ongoing. IB told the caseworker that she did not feel safe during her parenting
times in respondent’s home because BB would fight with respondent. Additionally, respondent
had resubmitted divorce papers after she and the children’s father did not follow through with the
original divorce filing. DB and IB remained placed in foster care with parenting time visits at
respondent’s home.
-2-
On May 1, 2014, IB and DB were returned to respondent’s home. On May 23, 2014, the
children were removed from the home after Amanda Leino, an investigator with petitioner,
found bruising on DB’s face, back, stomach, and side. All three children were placed in foster
care. At a dispositional review hearing in June 2014, Leino reported that CPS had received a
report that respondent and her children had been at a Family Dollar store, that an employee of the
store had heard a “loud slapping noise,” and that the employee had subsequently seen bruises
forming on DB’s face. Respondent told Leino that IB had caused DB’s injuries. IB told the
investigator that, on one occasion, she had hit DB with a board that had a tack in it, and that, on
another occasion, she had hit him in the face with a hose when DB was trying to grab it away
from her; she also reported that BB had kicked DB. A doctor examined DB and concluded that
his injuries were not self-inflicted. Leino could not determine who had caused DB’s injuries.
The caseworker testified that after the minor children were returned to foster care after
being removed from respondent’s home a second time, IB and DB were more aggressive and DB
appeared to be a “little bit skittish” when he got in trouble and would flinch when his foster
parents would come toward him. IB told her foster parents that respondent and BB got into
“crazy” fights and that respondent would hit and bite when she got upset. The caseworker
reported that respondent told her that IB kicked DB in the back, but that respondent told the
investigator that BB kicked DB in the back. Emlie Goldner, program manager of Spectrum
Community Services’ children’s department, testified that she provided services for BB from the
end of October 2013 and was in respondent’s home with him three days a week for
approximately two hours. She had no concerns regarding respondent’s level of supervision or
discipline and did not see respondent ever strike the children.
At a later dispositional review hearing in June 2014, Leino stated her conclusion that
there was a preponderance of the evidence to substantiate physical neglect, failure to protect, and
improper supervision on respondent’s part, but not physical abuse, regarding the Family Dollar
incident. The caseworker recommended that BB alone be returned to respondent’s home
because he had made substantial improvement during the time he spent in respondent’s home
from September 2013 to May 2014. BB was released to respondent’s home on July 3, 2014; IB
and DB remained in foster care. However, that very same day petitioner again requested that the
trial court remove BB after an employee of petitioner visited respondent’s home and found the
children’s father, as well as marijuana, in the home. BB disclosed that his father was living in
the home and that BB was experiencing upset stomachs and incontinence because of his fear of
his father. The trial court ordered BB removed from the home. At the dispositional review
hearing concerning BB’s removal, the caseworker testified that respondent’s treatment plan
required that respondent not allow the children’s father to be around the children because he had
not completed any steps to address his issue with domestic violence. The caseworker reported
that she found several pieces of the children’s father’s clothing in BB’s room, and that when she
spoke with BB regarding his stomach problems, BB initially told her that “he couldn’t tell [the
caseworker] or he wouldn’t be able to see [respondent] anymore.” Respondent and the
children’s father had denied that he was living there or that there was marijuana in the home,
although the father admitted to smoking marijuana outside the home when he came over to get
some clothes and a motorcycle.
The caseworker further testified that approximately 1-1/2 months before the hearing, IB
said that “Daddy is going to live in the trailer with us and it’s a secret.” After BB was returned
-3-
to foster care, he showed the caseworker pictures from June 27, 2014, depicting respondent, BB,
and his father together at a birthday party. The caseworker testified that she spoke with the
children’s father and he told her that he was going to leave the state of Michigan because he
loved respondent and he was not going to be able to stay away from her.
Respondent was referred to a group therapy program designed to help abused or
neglected women reunite with their children. Respondent continued individual therapy. BB’s
stomach issues and incontinence did not occur in his foster care placement.
In September 2014, the caseworker reported that respondent had been resistant to starting
the group therapy program designed to help abused or neglected women reunite with their
children because she felt that it was unfair that she had to participate in another program, and
was now on the waiting list because she had missed her first opportunity to enter the program.
The caseworker testified that IB said that respondent told her to be bad in her foster home, that
respondent told her that she was a “bitch” and that respondent hit her and her siblings during
unsupervised visits and when they were placed in respondent’s home. The caseworker was
concerned that respondent was coaching IB not to report incidents of domestic violence. IB’s
therapist testified that respondent had expressed animosity toward IB’s foster parents to IB, and
IB was confused as a result, as she felt that she had to choose between her biological parents and
her foster parents. The caseworker also reported that BB had hit respondent during parenting
times and called her names. BB also said that respondent told him not to look at his foster
parents and that his foster parents did not care about him. The trial court ordered the goal for the
minor children to be changed to adoption and ordered petitioner to initiate proceedings to
terminate parental rights. The trial court suspended respondent’s parenting time. The children’s
father voluntarily released his rights shortly thereafter.
Petitioner filed a supplemental petition requesting termination of respondent’s parental
rights to the minor children pursuant to MCL 712A.19b(3)(c)(i), (c)(ii), (g), and (j). At the
termination hearing, respondent’s therapist, Bethany Bertapelle (also IB’s therapist) reported that
respondent had initially benefited from therapy from May 2013 to November 2013, but had
ceased therapy and declined her invitation to resume it. Bertapelle reported that IB had
nightmares about respondent trying to kill her and preferred to have parenting time in a
supervised environment rather than respondent’s home. Bertapelle felt that IB did not feel safe
with respondent and that respondent instructed her children to keep secrets about what happened
in her home. Bertapelle testified that she believed that the minor children would be at a risk of
harm if they were returned to respondent. Bertapelle also testified that IB was bonded with her
foster parents.
The caseworker testified regarding respondent’s completed services. Despite the
numerous services completed by respondent, the caseworker felt that DB’s injuries in her care, as
well as the continued presence of the children’s father in their lives, indicated that respondent did
not provide her children with proper supervision. She testified that respondent had told IB to
keep secrets. The caseworker testified that she did not believe that respondent could make
enough progress regarding parenting for the minor children to be returned to her care within a
reasonable time because respondent did not understand how her relationship with his father
affected BB, respondent did not understand how IB still needed counseling for emotional
regulation and coping skills, and respondent was not able to internalize what she learned during
-4-
counseling to the extent necessary to be capable of meeting the minor children’s needs as a
group. The caseworker did not believe that respondent was able to handle the stress and
responsibility of having all three of the minor children in her care at the same time. The
caseworker believed that emotional stability was a barrier to reunification for respondent.
The caseworker further testified that while respondent and the children’s father’s divorce
was finalized in July 2014, they were still in contact, even after the father’s parental rights were
terminated. The caseworker testified that domestic violence remained a barrier for respondent
and that the barrier could not be addressed within a reasonable time.
The caseworker also testified that termination of respondent’s parental rights was in the
minor children’s best interests based on respondent’s history regarding parenting, emotional
stability, and domestic relations, the minor children’s need for permanency, the lack of a positive
bond between the children and respondent, the advantages of the minor children’s respective
foster homes, and the foster families’ willingness to adopt. During cross-examination, the
caseworker stated that respondent’s bond with IB was “pretty positive,” but that it did not appear
that respondent had a strong, positive bond with IB and DB, although she believed that
respondent loved the minor children.
A home care nurse for respondent’s grandmother testified to an incident that occurred
approximately 8 to 10 months before the termination hearing. She stated that respondent and the
children’s father had argued over who would sell respondent’s prescription drugs, that this
argument took place in BB’s presence, and that respondent had screamed loudly. The
caseworker testified that she counted the number of respondent’s prescription pills and it
appeared that respondent was taking her medicine appropriately.
Goldner testified that she felt respondent was bonded to her children and that she had
never witnessed any evidence of abuse in respondent’s home.
After the close of proofs, the trial court issued its opinion from the bench. The court
found that there was clear and convincing evidence of a ground for termination under
MCL 712A.19b(3)(c)(i) because a condition that led to adjudication continued to exist in regard
to respondent’s inappropriate parenting based on continued problems with physical abuse and
inappropriate physical discipline and there was no reasonable likelihood that the condition would
be rectified within a reasonable time. The trial court found that there was clear and convincing
evidence of a ground for termination under MCL 712A.19b(3)(c)(ii) because other conditions
that caused the minor children to come within the court’s jurisdiction continued to exist in regard
to domestic violence and respondent’s sale of her prescription drugs and there was no reasonable
likelihood that the conditions would be rectified within a reasonable time. The trial court found
that under MCL 712A.19b(3)(g), there was clear and convincing evidence that respondent failed
to provide proper care and custody for the minor children and that there was no reasonable
expectation that respondent would be able to provide proper care and custody within a
reasonable time considering the children’s ages. The trial court also found that under
MCL 712A.19b(3)(j), there was clear and convincing evidence of a reasonable likelihood of
harm to the minor children if they were returned to respondent because DB was harmed after the
minor children were previously returned to respondent. The trial court also found by a
preponderance of the evidence that it was in the minor children’s best interests to terminate
-5-
respondent’s parental rights based on respondent’s history with domestic violence and physical
abuse, the minor children’s need for permanency, respondent’s inability to provide the children
with an appropriate home for “many months,” and the possibility for adoption. The trial court
entered an order terminating respondent’s parental rights. This appeal followed.
II. STATUTORY GROUNDS FOR TERMINATION
Respondent argues that the trial court erred in finding statutory grounds for termination.
We disagree. To terminate parental rights, a trial court must find the existence of a statutory
ground for termination has been met by clear and convincing evidence. MCL 712A.19b; In re
McIntyre, 192 Mich. App. 47, 50; 480 NW2d 293 (1991). A trial court’s factual findings in
terminating parental rights are reviewed for clear error. MCR 3.977(K); In re Trejo Minors, 462
Mich. 341, 356-357; 612 NW2d 407 (2000). Only one statutory ground for termination must be
established. Trejo Minors, 462 Mich. at 360.
Here, the trial court found statutory grounds for terminating respondent’s parental rights
under MCL 712A.19b(3)(c)(i), (c)(ii), (g), and (j), which provide:
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:
* * *
(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.
(ii) 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.
* * *
(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.
* * *
-6-
(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.
Regarding MCL 712A.19b(3)(c)(i), the first dispositional order was entered on
November 19, 2012. The termination hearing occurred on December 3, 2014, well over 182
days after the first dispositional order. At the time of the adjudication, the trial court found
statutory grounds for taking jurisdiction of the minor children under MCL 712A.2(b) because
respondent failed to provide necessary care and respondent’s home was an unfit environment,
based on DB’s injuries that occurred just 13 days after his birth. In its opinion, the trial court
found a ground for termination under MCL 712A.19b(3)(c)(i) based on its finding that a
condition that led to adjudication continued to exist in regard to respondent’s inappropriate
parenting based on continued problems with physical abuse and inappropriate physical
discipline. The trial court based that finding on the fact that on May 22, 2014, DB was found
with bruises on his face, ears, side, back, and stomach. Although respondent argues on appeal
that IB caused DB’s injuries rather that respondent, they occurred at a time when respondent was
responsible for DB’s care and support the trial court’s conclusion that respondent had failed to
rectify the conditions that lead to adjudication despite the passage of two years and her
participation in extensive services. Further, IB reported that respondent hit her during parenting
time, and multiple persons testified that BB and respondent fought physically. The trial court
thus did not clearly err in finding that this statutory ground was proven by clear and convincing
evidence. MCR 3.977(K); Trejo Minors, 462 Mich. at 356-357.
Regarding MCL 712A.19b(3)(c)(ii), the trial court found that respondent was still
permitting the children’s father to contact them and still had issues with domestic violence
concerning the children’s father, even after respondent’s plan was updated to require that she not
allow such contact, and even after the children’s father’s rights were terminated. This finding
was supported by clear and convincing evidence and was not clearly erroneous. Although
respondent argues on appeal that the trial court erred in concluding that the children’s father had
not moved to Florida and that the parents would remain in contact, the trial court found, based on
the evidence presented, that the children’s father had contact with respondent throughout this
case and that he still had contact with respondent at the time of the termination hearing, and that
the evidence supported the inference they would remain in contact. This finding was also not
clearly erroneous and supports the trial court’s finding of a statutory ground for termination
under MCL 712A.19b(3)(c)(ii).2 MCR 3.977(K); Trejo Minors, 462 Mich. at 356-357.
2
We do not find that the trial court’s reference to the alleged sale of respondent’s prescription
drugs would have satisfied this statutory ground. The home health nurse’s testimony was that
respondent and the children’s father had one argument, 8 to 10 months before the termination
hearing, concerning who would sell her prescription drugs. On the other hand, numerous pill
counts conducted by caseworkers, as well as drug screens, seemed to indicate that she was taking
her prescription drugs as prescribed. In sum, evidence of respondent’s sale of her prescription
drugs was considerably less than “clear and convincing.” See In re Martin, 450 Mich. 204, 227;
533 NW2d 399 (1995), cert den sub nom Martin v Martin, 516 U.S. 1113; 116 S. Ct. 912; 133 L Ed
-7-
Regarding MCL 712A.19b(3)(g), there was evidence that at the time of the termination
hearing respondent had not rectified her issues with physical abuse and domestic violence.
Additionally, respondent allowed unapproved contact between the children and their father,
failed to understand how harmful this contact was for IB, coached IB and BB about what they
should not say to caseworkers, and interfered with IB and DB’s relationships with their foster
parents. A trial court may rely on a respondent’s history of failing to provide care and custody in
finding that there was no reasonable expectation that the respondent would be able to provide
proper care and custody within a reasonable time. In re Archer, 277 Mich. App. 71, 75-76; 744
NW2d 1 (2007). The trial court did not clearly err in finding a statutory ground for termination
under MCL 712A.19b(3)(g). MCR 3.977(K); Trejo Minors, 462 Mich. at 356-357.
Finally, the trial court also found that under MCL 712A.19b(3)(j), there was clear and
convincing evidence of a reasonable likelihood of harm to the minor children if they were
returned to respondent because DB was harmed after the minor children were previously
returned to respondent. As discussed above, there was significant evidence that respondent
allowed father, a person who struggled with domestic violence and drugs and who had not
participated in his treatment plan, to have unauthorized contact with BB. And there was
evidence that respondent (at a minimum) failed to prevent significant injury to DB while he was
in her care. A trial court may rely on a parent’s history in determining that a child would be
harmed if returned the parent’s home. Archer, 277 Mich. App. at 75-76. Further, Bertapelle
testified that she believed that the minor children would be at a risk of harm if they were returned
to respondent. The trial court did not clearly err in finding a statutory ground for termination
under MCL 712A.19b(3)(j). MCR 3.977(K); Trejo Minors, 462 Mich. at 356-357.
Although respondent argues that she completed her agency agreement and was able to
show significant improvement in removing the barriers to reunification, mere participation and
benefit from services is insufficient; rather, a parent must demonstrate sufficient compliance with
and benefit from services to address the problem targeted by those services. In re Frey, 297
Mich. App. 242, 248; 824 NW2d 569 (2012). As discussed above, respondent did not address the
problems targeted by her services in regard to parenting and domestic violence. Further, she
failed to comply with the portions of her treatment plan regarding contact between the children
and their father. We find no clear error in the trial court’s findings regarding the statutory
grounds for termination. MCR 3.977(K); Trejo Minors, 462 Mich. at 356-357.
III. BEST-INTEREST DETERMINATION
Although not raised by respondent, we note that the trial court did not clearly err in
finding that termination of respondent’s parental rights was in the minor children’s best interests.
MCR 3.977(K); Trejo Minors, 462 Mich. at 356-357. The trial court found by a preponderance
of the evidence that it was in the minor children’s best interests to terminate respondent’s
parental rights based on respondent’s history with domestic violence and physical abuse, the
minor children’s need for permanency, respondent’s inability to provide the children with an
2d 843 (1996) (defining clear and convincing evidence). However, even removing this factor
from consideration, sufficient evidence remained to support the trial court’s finding concerning
this statutory ground.
-8-
appropriate home for “many months,” and the possibility for adoption. See In re Olive/Metts
Minors, 297 Mich. App. 35, 41-42; 823 NW2d 144 (2012); In re Moss, 301 Mich. App. 76, 90; 836
NW2d 182 (2013). We see no error in such a finding.
Affirmed.
/s/ Mark T. Boonstra
/s/ William B. Murphy
/s/ Jane E. Markey
-9-