In Re I D Fortune Minor ( 2022 )

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UNPUBLISHED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 I. D. FORTUNE, Minor. April 7, 2022
No. 357678
Wayne Circuit Court
Family Division
LC No. 2014-516286-NA
Before: GLEICHER, C.J., and K. F. KELLY and PATEL, JJ.
PER CURIAM.
Respondent mother appeals as of right the trial court’s order terminating her parental rights
to her son, ID, who tested positive for cocaine at birth in May 2019.1 Finding no error warranting
reversal, we affirm.
I. BASIC FACTS AND PROCEDURAL HISTORY
This case involves respondent’s ongoing struggles with drug addiction, mental illness, and
domestic violence. Along with other issues, such struggles have previously resulted in the
termination of her parental rights to four other children: CR, RC, JR, and IT. The circumstances
concerning those prior terminations are set forth in In re I T Fortune, unpublished per curiam
opinion of the Court of Appeals, issued January 30, 2020 (Docket No. 349154).
It is undisputed that respondent’s minor child, ID, who was born less than three months
after entry of the termination order concerning IT, tested positive for cocaine at birth and at the
time of his removal. It was also discovered that respondent had ID “sleeping in a dresser drawer”
at her residence. Although respondent had stable housing, she had no documented source of
income, and she was not receiving any treatment or medication for her diagnosed psychiatric
problems. Following a bench trial, the trial court found that there were grounds to exercise
jurisdiction over ID. However, the court denied petitioner’s first request to terminate respondent’s
1
The trial court also terminated the parental rights of ID’s father, but he is not a party to this
appeal.
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parental rights to ID at the initial dispositional hearing and allowed respondent to participate in
services aimed toward reunification.
Respondent entered into a parent-agency treatment plan and was referred for various
services, including a psychological evaluation, substance-abuse assessments, parenting classes,
and random drug screens. A series of review hearings were held and, over the course of several
months, respondent made consistent progress toward reunification. By the time of the third review
hearing in July 2020, respondent had given birth to another child, KB, who had not been removed
from respondent. Respondent continued to engage in services and to return negative drug-test
results. Accordingly, her visits with ID—which had originally been supervised at the agency—
were changed to supervised home visits, and then unsupervised overnight visits. Following the
fourth review hearing in September 2020, at petitioner’s recommendation, the trial court ordered
that ID be returned to respondent’s care under a Family Reunification Plan (FRP) or some similar
arrangement.
Following reunification, however, circumstances changed for the worse. At a review
hearing in December 2020, caseworkers informed the trial court that respondent had “admitted to
having a relapse and using cocaine,”2 and Children’s Protective Services from the Michigan
Department of Health and Human Services was investigating the matter. Respondent had also
missed a drug screen on November 25, 2019. And she had gone through a contentious “breakup”
with her ex-boyfriend—KB’s father—who had made threats that left her “really worried about her
safety.” A safety plan was implemented, under which, among other things, respondent was to have
“no contact” with KB’s father. Consistent with petitioner’s recommendations, the trial court
maintained reunification as the permanency planning goal, re-referred respondent for random drug
screens, and ordered the continuation of FRP services pending another review hearing.
In January 2021, respondent admittedly violated the no-contact provision of the safety plan
that had been put in place regarding KB’s father. Because she was upset about threats and insults
he had made regarding KB, including that KB was not his child, that he would “smack her if he
ever s[aw] her,” and that he would “prostitute” the infant, respondent went to his place of
employment and confronted him. An incident involving domestic violence ensued, and respondent
was charged with several criminal offenses as a result, including domestic violence and felonious
assault.3
After respondent was arrested, both ID and KB were removed and placed back into foster
care, and petitioner filed supplemental petitions seeking termination of respondent’s parental rights
to both children, along with termination of the parental rights of each child’s respective father.
Following a termination hearing, the trial court found that, as to respondent, grounds for
termination had each been established by clear and convincing evidence. The court also found
that termination of respondent’s parental rights was in ID’s best interests. This appeal followed.
2
Respondent denied making any such admission.
3
In light of those pending criminal charges, respondent asserted her Fifth Amendment privilege
under the United States Constitution against self-incrimination when questioned regarding the
details of the January 2021 incident.
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II. STANDARDS OF REVIEW
We review for clear error a trial court’s decision whether grounds for termination have
been proven by clear and convincing evidence. In re Medina, 317 Mich App 219, 226; 894 NW2d
653 (2016). We also review for clear error a trial court’s best-interest determination. Id. “A
finding is clearly erroneous if the reviewing court is left with a definite and firm conviction that a
mistake has been made,” with the reviewing court “defer[ring] to the special ability of the trial
court to judge the credibility of witnesses.” In re LaFrance, 306 Mich App 713, 723; 858 NW2d
143 (2014). Any related questions of statutory interpretation are reviewed de novo. Id.II. ANALYSIS
Respondent first argues that the trial court clearly erred by finding that at least one statutory
ground for termination of her parental rights was established by clear and convincing evidence.
We disagree.
“To terminate parental rights, the trial court must find that at least one of the statutory
grounds for termination in MCL 712A.19b(3) has been proved by clear and convincing evidence.”
In re Ellis, 294 Mich App 30, 32; 817 NW2d 111 (2011). The clear and convincing evidence
standard is “the most demanding standard applied in civil cases[.]” In re Martin, 450 Mich 204,
227; 538 NW2d 399 (1995). Evidence is clear and convincing if it
produces in the mind of the trier of fact a firm belief or conviction as to the truth of
the allegations sought to be established, evidence so clear, direct and weighty and
convincing as to enable the factfinder to come to a clear conviction, without
hesitancy, of the truth of the precise facts in issue. [Id. (quotation marks, citation,
and brackets omitted).]
“Evidence may be uncontroverted, and yet not be ‘clear and convincing.’ ” Id. (quotation marks
and citation omitted). “Conversely, evidence may be ‘clear and convincing’ despite the fact that
it has been contradicted.” Id. (quotation marks and citation omitted).
In support of termination, the trial court relied on four distinct statutory grounds: MCL
712A.19b(3)(c)(i) (failure to rectify conditions that led to adjudication), (c)(ii) (failure to rectify
conditions other than those that led to adjudication), (j) (the child is reasonably likely to be harmed
if returned to the parent’s home), and (l) (parental rights to another child were voluntarily
terminated in a prior proceeding and aggravating circumstances are present). As an initial
consideration, we conclude that even under the “highly deferential” standard of review that applies
here, see People v McSwain, 259 Mich App 654, 683; 676 NW2d 236 (2003), the trial court clearly
erred by finding clear and convincing evidence in support of termination under MCL
712A.19b(3)(l), because that subsection applies only where a parent’s rights to another child were
voluntarily terminated following the initiation of child protective proceedings, and it is undisputed
that respondent’s parental rights to all of her other children were involuntarily terminated. But
because the trial court did not clearly err with regard to all of the statutory grounds it cited, and
only one ground for termination need be proven, the error is harmless. See In re Ellis, 294 Mich
App at 32 (“Only one statutory ground need be established by clear and convincing evidence to
terminate a respondent’s parental rights, even if the court erroneously found sufficient evidence
under other statutory grounds.”).
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Termination of respondent’s parental rights was proper under MCL 712A.19b(3)(j).
Respondent’s sole argument concerning MCL 712A.19b(3)(j) is based on In re Baham, 331 Mich
App 737, 758-759; 954 NW2d 529 (2020), in which we stated: “In light of respondent’s undisputed
progress toward reunification, to the extent that the court found a reasonable probability of harm
to BB if returned to respondent’s care, the court’s finding was clearly erroneous.” Respondent
contends that here, as in In re Baham, the trial court clearly erred by finding that there was a
“reasonable” probability that ID would suffer harm if returned to respondent’s custody. We
disagree.
In re Baham is factually distinguishable from the instant case. In that case, the respondent
was making “undisputed progress toward reunification,” “was compliant with services and was
seeking out additional services,” was incarcerated but showing “exemplary” behavior while in
prison, was “attending vocational school while in prison” and had recently earned her GED
[General Educational Development degree], and had a family that was “supportive of her, both
financially and emotionally[.]” Id. at 758. In contrast here, respondent had already achieved
reunification, but then had ID and KB removed as a result of her admitted relapse into cocaine use
and subsequent arrest following the January 2021 domestic violence incident. Respondent was
also noncompliant with services, having failed to submit to a single court-ordered drug screen for
months before the termination hearing. There was also no evidence that respondent was seeking
to better her position through education or that she had the level of family support that was present
in In re Baham.
We are also unpersuaded by respondent’s contention that there was not sufficient evidence
establishing a reasonable likelihood that ID would suffer harm if returned to her care. It is true
that there is no evidence that ID ever suffered any physical harm in respondent’s care. But there
is ample evidence that respondent is engaged in a pattern of dating—and having children with—
violent, abusive men. Indeed, at the termination hearing, respondent admitted that KB’s father
had recently threatened to physically abuse the child or “prostitute” her. Given respondent’s
pattern of dating such men—and maintaining contact with them even after their abuse is evident—
there is a very real danger that she will continue to expose her children to the risk of physical harm
that such individuals pose. Moreover, for purposes of MCL 712A.19b(3)(j), “the harm in question
need not be physical; a risk of emotional harm can suffice.” In re Pederson, 331 Mich App 445,
473; 951 NW2d 704 (2020) (quotation marks and citation omitted). In this case, there was
evidence that ID had already suffered emotional harm from being reunified with respondent, as
evidenced by generalized fear and “night terrors” that ID exhibited after reunification. And in
light of the evidence concerning respondent’s continued substance abuse4 and her entanglement
4
Although respondent denied continued drug use at the termination hearing, there was strong
evidence that she was continuing to use narcotics, most likely cocaine. A caseworker testified at
length about out-of-court admissions in which respondent stated that she was using cocaine and
had no plans to stop. These admissions were made in January 2021, about five months before the
termination hearing. And it is undisputed that respondent had refused to submit to either voluntary
or court-ordered drug screens since November 2020, even after she was informed that missed
screens were presumed to be positive. Although such evidence is only circumstantial proof of
respondent’s continued drug use, “circumstantial evidence is oftentimes stronger and more
-4-
with violent men, the evidence clearly established that there was a reasonable likelihood that ID
would suffer additional emotional harm if returned to respondent’s care once again. For a young
boy of ID’s age, there is an undeniable risk of psychic trauma in watching one’s mother both abuse
drugs and be abused physically. For those reasons, the trial court’s finding that clear and
convincing evidence supported termination of respondent’s parental rights under MCL
712A.19b(3)(j) was not clearly erroneous.5
Next, respondent argues that the trial court clearly erred by finding that termination of her
parental rights was in ID’s best interests. We disagree.
“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). As explained in In re Medina:
Although a reviewing court must remain cognizant that the fundamental liberty
interest of natural parents in the care, custody, and management of their children
does not evaporate simply because they have not been model parents or have lost
temporary custody of their children to the State, at the best-interest stage, the child’s
interest in a normal family home is superior to any interest the parent has.
Therefore, once a statutory ground for termination has been established by clear
and convincing evidence, a preponderance of the evidence can establish that
termination is in the best interests of the child. [In re Medina, 317 Mich App at 237
(quotation marks, citations, and brackets omitted).]
“In making its best-interest determination, the trial court may consider the whole record,
including evidence introduced by any party.” Id. at 237 (quotation marks and citation omitted).
We have explained:
[T]he 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
satisfactory than direct evidence.” See People v Wolfe, 440 Mich 508, 526; 489 NW2d 748 (1992)
(quotation marks and citation omitted). Hence, the trial court’s finding that there was clear and
convincing evidence that respondent was still using illicit drugs was not clear error.
5
In light of that conclusion, we need not address respondent’s claims of error concerning the other
statutory grounds for termination cited by the trial court. See In re Ellis, 294 Mich App at 32
(“Only one statutory ground need be established by clear and convincing evidence to terminate a
respondent’s parental rights, even if the court erroneously found sufficient evidence under other
statutory grounds.”). In the interest of judicial efficiency, however, we note that, were we to
address the issue, we would also find no clear error in the trial court’s reliance on MCL
712A.19b(3)(c)(i) (failure to rectify conditions that led to adjudication), as a ground supporting
termination in this case.
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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)
(quotation marks and citations omitted).]
At the time of termination, ID and KB were placed together in the same preadoptive foster
care placement where ID had resided for most of his young life, and the foster family included
ID’s brother, IT, whom the foster parents had already adopted. A caseworker testified that ID had
a strong bond with both the foster parents and IT, whereas ID had developed only “a minimal
bond” with respondent. In addition, the evidence indicated that ID had thrived in that foster care
placement. In sum, it is clear that ID’s placement represented a safe, stable, loving environment
for him, and one that offered the promise of permanence.
On the other hand, although respondent was able to maintain suitable housing and a small
stream of legal income throughout this case, she offered ID very little hope in terms of safety and
permanency. Despite the attendant risks to herself and her children, she persisted in dating abusive
men. And as already noted, the trial court did not clearly err by finding that she had failed to
overcome her addiction issues, was again using cocaine, and had no plans to cease doing so.
Respondent was also facing several serious criminal charges related to the January 2021 incident,
and there was no evidence indicating that she would have been able to provide for ID’s care and
custody if she was ultimately convicted of those charges and sentenced to a term of imprisonment.
Indeed, standing alone, the January 2021 incident belies any claim that respondent has
benefited from the myriad services that she has received in the past—or is likely to benefit from
additional services in the future. Assuming that the allegations concerning what KB’s father said
to instigate the January 2021 incident are true, it is altogether understandable that respondent
became upset and angry. Rather than reporting the purported threats to the police, her trial counsel,
or caseworkers, respondent chose to drive to KB’s father’s place of employment—with an infant
in her care—where she accosted him and spit on him. Her conduct provoked a violent response
and the situation rapidly escalated. Respondent suffered serious injuries and ultimately chased
KB’s father with a car and used it to strike him and his vehicle. Over the years, respondent has
repeatedly engaged in conduct that betrayed similar irrationality and poor decision-making, and
she has continued to do so despite numerous interventions by petitioner and the repeated provision
of services aimed to assist her. On this record, there is no basis to conclude that respondent is
capable of providing a safe, suitable, permanent home for ID. For those reasons, we find no clear
error in the trial court’s finding by a preponderance of the evidence that termination of
respondent’s parental rights was in ID’s best interests.
Affirmed.
/s/ Elizabeth L. Gleicher
/s/ Kirsten Frank Kelly
/s/ Sima G. Patel
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