20240222_C366069_62_366069.Opn.Pdf ( 2024 )

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UNPUBLISHED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 WASHINGTON/COE, Minors. February 22, 2024
No. 366069
Wayne Circuit Court
Family Division
LC No. 2019-000996-NA
Before: GADOLA, C.J., and BORRELLO and BOONSTRA, JJ.
PER CURIAM.
Respondent appeals as of right the order terminating her parental rights to JMW, JHW, and
PMC (collectively “the children”), pursuant to MCL 712A.19b(3)(a)(ii) (desertion of child for 91
or more days and custody not sought),1 (c)(i) (conditions leading to adjudication continue to exist),
(c)(ii) (failure to rectify other conditions), (j) (reasonable likelihood of harm if returned to parent’s
home), and (k)(i) (abandonment of a young child and reasonable likelihood of future harm if
returned to parent). For the reasons set forth in this opinion, we affirm.
I. BACKGROUND
The minor children who are the subject of this appeal were removed from respondent’s on
May 20, 2019, after they were found alone in what was described as a “filthy house.” Later that
day, petitioner filed a petition seeking temporary custody of the children. A Children’s Protective
Services (CPS) worker testified it was contrary to the welfare of the children to be returned to
respondent because respondent did not provide proper care for her children and respondent’s house
was unsuitable. The trial court authorized the petition. Subsequently, respondent admitted she
had an unsuitable, filthy house, left the children without proper supervision, had untreated mental
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During the November 7, 2022 termination hearing, the referee found that there were grounds to
terminate respondent’s parental rights under MCL 712A.19b(3)(a)(ii). However, the November
8, 2022 order terminating respondent’s parental rights reflects that respondent’s parental rights
were terminated under MCL 712A.19b(3)(a)(i). As the children’s mother, respondent is
identifiable. Thus, it appears that the trial court made a clerical error when it entered an order
terminating respondent’s parental rights under MCL 712A.19b(3)(a)(i).
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health issues, gave birth to a child who tested positive for cocaine, tested positive for cocaine at
that time she gave birth, and was currently in an inpatient rehabilitation facility because of her
cocaine use. Respondent admitted that each of those circumstances negatively affected her ability
to properly parent. Based on those admissions, the trial court took jurisdiction of the children and
ordered respondent to follow a treatment plan that included parenting classes, individual therapy,
substance abuse treatment, weekly drug screens, and a psychological evaluation. Respondent was
also required to obtain and maintain suitable housing and a legal source of income, and to visit the
children weekly.
Nearly four years after the children were removed, respondent had failed to complete or
benefit from her treatment plan. Respondent participated in some services, but showed no benefit
therefrom and provided no support for her children. Respondent missed nearly 70% of the ordered
visits (she missed 103 of the 149 scheduled visits), at times going as long as 91 or more days
between visits. Respondent failed to do most of her drug screening, did not attend substance abuse
counseling, continued to abuse substances, did not attend therapy or take medication for her mental
health issues, never provided proof she obtained suitable housing, missed many court hearings,
was caught stealing and was arrested for prostitution and drug possession, and became involved in
a relationship replete with incidents of domestic violence. The trial court found statutory grounds
to terminate respondent’s parental rights under MCL 712A.19b(3)(a)(ii), (c)(i), (c)(ii), (j), and
(k)(i). The trial court also found it was in the children’s best interests to terminate respondent’s
parental rights because respondent failed to visit the children regularly, obtain suitable housing, or
overcome her substance abuse issues.
II. ANALYSIS
In her appeal, respondent argues there was not clear and convincing evidence to support
termination of her parental rights under MCL 712A.19b(3)(a)(ii), (c)(i), (c)(ii), (j), or (k)(i)
because respondent had made substantial progress toward completing her treatment plan and was
continuing to rectify the issues therein.
“We review for clear error a trial court’s finding of whether a statutory ground for
termination has been proven by clear and convincing evidence. 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 Richardson, 329 Mich App 232, 251; 961 NW2d 499 (2019) (citation omitted).
Parents have a “fundamental right to direct the care, custody, and control” of their children.
In re Ferranti, 504 Mich 1, 21; 934 NW2d 610 (2019). “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).
Pursuant to MCL 712A.19b(3)(a)(ii), a court may terminate parental rights if it finds clear
and convincing evidence that “[t]he child’s parent has deserted the child for 91 or more days and
has not sought custody of the child during that period.” Relative to this finding, the guardian ad
litem agrees with respondent that the trial court erred by finding a statutory ground for termination
under MCL 712A.19b(3)(a)(ii) because respondent had contact with her children after the petition
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was filed and participated in some of the hearings. We conclude that termination was improper
under MCL 712A.19b(3)(a)(ii) because the record does not clearly indicate there was ever a stretch
of 91 days where respondent neglected to visit her children and failed to seek custody of them.
The trial court did not identify when this window allegedly took place, and there is no evidence of
such in the record. During closing argument, petitioner’s attorney stated termination was proper
under MCL 712A.19b(3)(a)(ii) because respondent had not seen her children in more than 91 days,
but did not mention respondent’s efforts to gain custody during that time. Therefore, the trial court
clearly erred by finding termination was proper under MCL 712A.19b(3)(a)(ii).
Pursuant to MCL 712A.19b(3)(c)(i), a court may terminate parental rights if the respondent
was in a proceeding pursuant to 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 . . . [t]he
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.” Here,
respondent had nearly four years to rectify the issues which led to the adjudication before her
parental rights were terminated. The conditions that led to the adjudication were respondent’s
unsuitable house, improper supervision of the children, untreated mental health issues, and drug
abuse. The trial court found respondent failed to rectify any of those conditions. We glean nothing
from the record evidence presented to us to dispute this finding.
Rather, the record clearly reveals that respondent did not rectify her inappropriate housing
situation. When the children were removed, respondent’s home was unsuitable and dirty.
Respondent admitted that her house was filthy and unsuitable for her children. Throughout the
duration of the case, respondent never made it possible for petitioner to inspect her living
environment. The foregoing indicates respondent failed to show she ever rectified her housing
situation.
Additionally, the record indicates that respondent’s failure to properly supervise her
children was another issue that led to the adjudication and her behavior during visits indicated she
continued to struggle with properly supervising her children. Early on in the case, respondent was
reportedly behaving appropriately during visits. However, at the next dispositional review hearing,
the caseworker testified respondent had to be told multiple times to end phone calls during her
visit, and respondent ultimately ended the visit early. During one visit, respondent became upset
at the children, and she slept through another visit. Though she completed parenting classes,
respondent did not demonstrate an ability to appropriately parent and supervise her children.
Furthermore, as previously indicated, respondent’s compliance with parenting times was
“extremely spotty.” Accordingly, we conclude respondent failed to rectify her issue of
inappropriate supervision.
Respondent also failed to remedy her mental health issues. Respondent was diagnosed
with bipolar disease, anxiety, PTSD, schizophrenia, and trichotillomania, but she was not
compliant with taking her prescription medication. Respondent admitted that she had mental
health issues that were not being properly treated. Respondent’s mental health needs were not
being met at the time of the termination hearing. Therefore, the trial court did not err by finding
respondent failed to rectify her mental health issues.
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Throughout the duration of the case, respondent tested positive for cocaine and marijuana.
Accordingly, the trial court ordered respondent to participate in random drug screens and substance
abuse therapy. Respondent missed 102 of 104 drug screens. Respondent never completed any of
her substance abuse counseling. Respondent admitted to abusing drugs, including cocaine, and
admitted her drug use negatively affected her parenting ability. Respondent was even arrested on
a drug-related offense in 2019. Respondent overdosed on drugs in December, 2021. Accordingly,
since respondent failed to participate in the drug screens or otherwise show she had resolved her
substance abuse issue, she failed to show her substance abuse issue had been rectified or likely
would be in the near future. See In re Atchley, 341 Mich App 332, 339; 990 NW2d 685 (2022)
(“[A] respondent-parent must both participate in services and demonstrate that they sufficiently
benefited from the services provided.”) (quotation marks and citation omitted). In summary,
respondent failed to rectify any of the issues which led to the adjudication. Therefore, the trial
court did not err by terminating respondent’s parental rights under MCL 712A.19b(3)(c)(i).
Pursuant to MCL 712A.19b(3)(c)(ii), a court may terminate a parent’s parental rights if the
following is established:
(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 . . . :
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(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.
Again, the guardian ad litem agrees with respondent that termination was improper under
MCL 712A.19b(3)(c)(ii) because the record did not substantiate the existence of any additional
conditions causing the children to come within the trial court’s jurisdiction. When the referee
found termination was proper under MCL 712A.19b(3)(c)(ii), he did not identify what other issues
existed. When the trial court terminated respondent’s parental rights, it only stated that respondent
failed to have meaningful contact with her children or complete her treatment plan. Petitioner
argued the basis for the trial court terminating respondent’s parental rights under MCL
712A.19b(3)(c)(ii) was respondent’s failure to obtain appropriate housing. However, respondent’s
housing issue was part of the trial court’s original assumption of jurisdiction, making that condition
inapplicable to an analysis under MCL 712A.19b(3)(c)(ii).
Nevertheless, the assertions of respondent and the guardian ad litem are incorrect
statements of law because termination was proper under MCL 712A.19b(3)(c)(ii) due to
respondent’s failure to comply with the parts of her treatment plan that were separate from the
issues that led to the adjudication. A respondent’s failure to comply with their treatment plan and
make the changes necessary to be reunited with their children support termination under MCL
712A.19b(3)(c)(ii). In re Sours, 459 Mich 624, 640; 593 NW2d 520 (1999). In her treatment plan,
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respondent was ordered to visit her children weekly. As previously stated, respondent missed 103
out of 109 visits. Thus, she clearly failed to comply with her treatment plan. Since respondent
violated a condition of her treatment plan that was not a basis for the trial court’s assumption of
jurisdiction, we conclude the trial court did not clearly err when it found termination was proper
under MCL 712A.19b(3)(c)(ii).
Pursuant to MCL 712A.19b(3)(j), a court may terminate parental rights if it finds clear and
convincing evidence that “[t]here 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.”
Exhibiting behavior that would put a child at a risk of harm is sufficient to justify terminating
parental rights under MCL 712A.19b(3)(j). In re White, 303 Mich App 701, 713; 846 NW2d 61(2014). The trial court did not clearly err by finding a statutory ground to terminate respondent’s
parental rights under MCL 712A.19b(3)(j) because, as discussed earlier with regard to MCL
712A.19b(3)(c)(i) and (c)(ii), respondent failed to comply with the terms of her treatment plan.
See In re Kaczkowski, 325 Mich App 69, 77; 924 NW2d 1 (2018) (holding that failure to comply
with a treatment plan is evidence that the child will be harmed if returned to the parent’s home).
Concluding that there was a reasonable likelihood that the children would be harmed if
returned to respondent’s home was also not clearly erroneous because of respondent’s continued
drug use, her mental health issues and her inability to remain out of jail. The use of powerful
drugs, like cocaine, could debilitate a caregiver from providing proper care to her child.
Respondent admitted that her drug use negatively affected her ability to care for her children.
Further, respondent’s failure to address her mental health issues also indicated the children would
likely be harmed if returned to respondent. Kaczkowski, 325 Mich App at 78. Finally, as discussed
earlier, respondent failed to demonstrate she had appropriate housing, which could also lead to the
children being harmed if they were returned to respondent.
Pursuant to MCL 712A.19b(3)(k)(i), a court may terminate parental rights if it finds clear
and convincing evidence that the parent abandoned the young child or sibling, and “there is a
reasonable likelihood that the child will be harmed if returned to the care of the parent[.]” The
guardian ad litem also agrees with respondent that termination was improper under MCL
712A.19b(3)(k)(i) because there was insufficient evidence showing respondent abandoned her
children.
When analyzing MCL 712A.19b(3)(k)(i), this Court defined abandon as “to leave
completely and finally; forsake utterly . . . .” Moore v Prestige Painting, 277 Mich App 437, 449;
745 NW2d 816 (2007). When the children were taken into custody, they were living with
respondent. Though respondent was inconsistent with visiting her children throughout the case,
she still attended 46 visits and even brought snacks with her, albeit sugary ones. Therefore, it is
evident that respondent never manifested an intent to leave her children completely or utterly
forsake them. Accordingly, we conclude the trial court clearly erred by finding statutory grounds
to terminate respondent’s parental rights under MCL 712A.19b(3)(k)(i). However, we also
conclude that the trial court did not clearly err in finding statutory grounds to terminate
respondent’s parental rights under MCL 712A.19b(3)(c)(i), (c)(ii) and (j).
Respondent also argues the trial court erred by finding it was in the children’s best interests
to terminate respondent’s parental rights because respondent was complying with her treatment
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plan, continuing to work on her treatment plan, and had a special bond with her children. The
record does not support any of these assertions made by respondent.
We review a “trial court’s determination regarding the children’s best interests” for clear
error. White, 303 Mich App at 713. Clear error exists when the reviewing court has a firm and
definite conviction that a mistake was made. In re Benavides, 334 Mich App 162, 167; 964 NW2d
108 (2020).
“Once a statutory basis for termination has been shown by clear and convincing evidence,
the court must determine whether termination is in the child’s best interests.” In re Keillor, 325
Mich App 80, 93; 923 NW2d 617 (2018) (citation omitted). “Best interests are determined on the
basis of the preponderance of the evidence.” Id. (citation omitted). The trial court should consider
all of the evidence when determining whether it is in the child’s best interests to terminate parental
rights. White, 303 Mich App at 713. The trial court should 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. (citation 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.” Id. at 714. “A parent’s substance-abuse history is also
relevant to whether termination is in the child’s best interests.” In re Rippy, 330 Mich App 350,
361; 948 NW2d 131 (2019) (citation omitted).
The trial court’s finding, that it was in the children’s best interests to terminate respondent’s
parental rights, was not clearly erroneous because, as discussed earlier, respondent failed to rectify
the issues which led to the trial court taking jurisdiction of the children, did not rectify the other
issues the trial court ordered respondent to rectify, and there was a reasonable likelihood the
children would be harmed if returned to respondent. Overall, respondent’s failure to comply with
her case service plan suggests it would be in the children’s best interests to terminate respondent’s
parental rights. See White, 303 Mich App at 713 (holding a respondent’s degree of compliance
with her treatment plan should be considered in a best-interests analysis).
Respondent’s failure to submit to drug screens and continued abuse of controlled
substances also supported the trial court’s finding that it was in the children’s best interests to
terminate respondent’s parental rights. See Rippy, 330 Mich App at 361 (holding a respondent’s
history of substance abuse suggests it would be in the child’s best interests to terminate the
respondent’s parental rights). Additionally, respondent’s failure to obtain stable and suitable
housing weighed in favor of terminating her parental rights. See In re Olive/Metts Minors, 297
Mich App 35, 43; 823 NW2d 144 (2012) (holding a trial court should consider whether a parent
can provide a child with a stable environment when making a best-interests finding).
When the children were removed, respondent had left them home alone in a filthy house,
clearly demonstrating her lack of parenting skills and improper supervision. Though respondent
participated in parenting classes, she provided no proof she benefitted from the parenting classes.
See White, 303 Mich App at 713 (holding the parent’s parenting ability is a factor the trial court
should consider when making a best-interests finding); see also Atchley, 341 Mich App at 339
(“[A] respondent-parent must both participate in services and demonstrate that they sufficiently
benefited from the services provided.”) (quotation marks and citation omitted). Respondent’s
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failure to address her mental health issues also indicated the children would likely be harmed if
returned to her. See Kaczkowski, 325 Mich App at 78 (holding a parent’s ongoing mental health
issues and refusal to take medication evidences the child would likely be harmed with that parent).
Additionally, respondent sent the foster parent a text solicitation for sex with nude pictures in
March, 2022, and was caught stealing and arrested for drug possession and prostitution in the
summer of 2019. Such lewd and criminal behaviors also indicated it was in the children’s best
interests to not be placed with respondent. Respondent’s involvement in a domestic violence
relationship also weighed in support of termination. See White, 303 Mich App at 714. Stating the
obvious, during the nearly four-year pendency of this matter, respondent displayed little, if any,
effort to reunite with her children. Coupled with the fact that she missed nearly 70% of her
scheduled visits with her minor children is not demonstrative of a parent who has a bond with their
children.
As to respondent’s lack of a bond with the minor children, the caseworker opined there
was no bond between respondent and her children because of respondent’s many missed visits.
Respondent missed 103 of the 149 scheduled visits with her children, and was sometimes
distracted during the visits or ended them early. While it is true that JMW gave a thumbs up when
she was asked about her feelings regarding respondent, JMW also gave a thumbs up with regard
to the foster parent. Additionally, JMW seemed to believe respondent did not love her and her
siblings because she rarely visited them, evidencing a breakdown in JMW’s bond with respondent.
Though JHW was happy to see respondent, he identified the foster parent as his real parent, and
respondent as the foster parent.
We recognize that a child’s bond with the parent is an important best-interests factor. See
White, 303 Mich App at 713. However, in this matter, the reality is that these children had not
lived with respondent in nearly four years by the time of the termination hearing and did not have
regular contact with respondent over those years. Even assuming a bond existed, the record clearly
reveals it could not be characterized as a strong one.
When respondent did visit, the children often exhibited negative behaviors afterwards. The
children experienced anxiety and resorted to behaviors like food hoarding. In general, the children
were frightened and misbehaved after visits with respondent. Further, respondent’s outburst at the
last visit upset each of her other children. The negative effect the children experienced after visits
with respondent weighed in support of terminating respondent’s parental rights.
Finally, the children needed permanency, stability, and finality—things they would
seemingly only get if respondent’s parental rights were terminated. See White, 303 Mich App at
713 (holding that a child’s need for permanency, stability, and finality should be considered when
making a best-interests finding). The foster parent’s willingness to adopt the children weighed in
favor of terminating respondent’s parental rights. See id. at 714 (holding that the possibility of
adoption is a factor to consider in a best-interests analysis). Considering the entirety of the record
in this case, we conclude the trial court did not clearly err when it found termination was in the
children’s best interests.
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Affirmed.
/s/ Michael F. Gadola
/s/ Stephen L. Borrello
/s/ Mark T. Boonstra
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