In Re Nevers Minors ( 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UNPUBLISHED
August 15, 2024
In re NEVERS, Minors.
No. 368144
Wayne Circuit Court
Family Division
LC No. 2021-000792-NA
Before: O’BRIEN, P.J., and CAVANAGH and SHAPIRO*, JJ.
PER CURIAM.
Respondent appeals as of right the trial court’s order terminating her parental rights to the
minor children, KDN and MAN, under MCL 712A.19b(3)(b)(i) (parent’s act caused injury or
abuse), (b)(ii) (parent had opportunity to prevent injury or abuse but failed to do so), (g) (failure
to provide proper care or custody), (j) (reasonable likelihood of harm if returned to parent), (k)(iii)
(parent’s abuse of child included battering, torture, or other severe physical abuse), (k)(iv)
(parent’s abuse of child included loss or serious impairment of organ or limb), and (k)(v) (parent’s
abuse of child included life-threatening injury). On appeal, respondent challenges only the trial
court’s best-interest findings. We affirm.
I. FACTUAL BACKGROUND
Respondent is the mother of KDN and MAN. Respondent is also the mother of JXN, who
died on August 11, 2021; the cause of JXN’s death was ultimately determined to be
diphenhydramine1 toxicity. CDN is the biological father of all three children.2 The trial court
acquired jurisdiction over KDN and MAN in September 2021 after the Department of Health and
Human Services (DHHS) filed a petition for child protective proceedings when JXN died. At the
time of JXN’s death, JXN had injuries on his face, back, arms, and legs evidencing physical abuse.
1
Diphenhydramine is the active ingredient in Benadryl.
2
CDN was a respondent to the petition to terminate parental rights, but is not a party to this appeal.
*
Former Court of Appeals judge, sitting on the Court of Appeals by assignment.
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On the same date, KDN and MAN underwent physical abuse examinations. They were observed
to have healed marks, burns, and abrasions on their bodies, and were diagnosed with failure to
thrive. The following day, KDN and MAN participated in forensic interviews, in which both
children disclosed that CDN beat the children with a broom. At the time of JXN’s death, all three
children resided with CDN. Respondent admitted to seeing marks on the children previously but
believed the marks were attributable to age-appropriate play accidents. At the time the petition
was filed, respondent was in a psychiatric hospital after she experienced a mental health episode
while KDN and MAN were in her care. On the same date the petition was filed, the trial court
entered an order taking the children into protective custody and placing the children with the
DHHS for care and supervision.
The DHHS subsequently filed an amended petition seeking to terminate respondent’s
parental rights to the children under MCL 712A.19b(3)(b)(i), (b)(ii), (g), (j), (k)(iii), (k)(iv), and
(k)(v). In addition to the allegations set forth in the initial petition, the amended petition alleged
that respondent was arrested in August 2021 and petitioned to inpatient mental health treatment
after she was observed having a mental health episode at a mall. KDN and MAN were present
when the episode occurred. Respondent reported to Child Protective Services (CPS) that she was
diagnosed with schizophrenia in 2017, but was no longer receiving treatment because she did not
believe she was still schizophrenic. The amended petition alleged that respondent could not
provide the children with proper care and custody because of her mental health and lack of suitable
housing. The amended petition further alleged that respondent failed to provide adequate food,
clothing, shelter, or medical care for the children despite being financially able to do so, and
respondent either caused the children’s injuries or failed to protect the children from physical
abuse. Following a preliminary hearing, the trial court found probable cause that one or more of
the allegations in the petitions were true, and that reasonable efforts to prevent or eliminate the
children’s removal from respondent’s care were not required because of aggravated circumstances,
i.e., the killing of a sibling and failure to protect. The trial court found that the permanency
planning goal of adoption was appropriate and authorized the petition.
At an adjudication hearing, respondent pleaded no contest as to jurisdiction and the
statutory grounds for termination. To establish the factual basis for the plea, respondent stipulated
that KDN and MAN disclosed physical abuse by CDN and respondent was aware of the children’s
injuries, but respondent failed to act. Relying on respondent’s no-contest plea, the trial court
entered an order finding statutory grounds to exercise jurisdiction over the children and statutory
grounds to terminate respondent’s parental rights under MCL 712A.19b(3)(b)(i), (b)(ii), (g), (j),
(k)(iii), (k)(iv), and (k)(v).
Subsequently, a best-interests hearing was held. After the presentation of evidence and
closing arguments, the trial court found that termination of respondent’s parental rights was in the
children’s best interests. The trial court articulated the factors it considered in making its
determination, including respondent’s mental health, the children’s bond with respondent, and
respondent’s admission that she saw injuries on the children but failed to act. The trial court
thereafter entered an order terminating respondent’s parental rights. Respondent now appeals.
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II. ANALYSIS
Respondent first argues that the trial court erred by finding termination was in the best
interests of the children because the trial court failed to properly consider the children’s best
interests. We disagree.
Even if a trial court finds that statutory grounds for termination are established by clear and
convincing evidence, “it cannot terminate the parent’s parental rights unless it also finds by a
preponderance of the evidence that termination is in the best interests of the children.” In re
Gonzales/Martinez, 310 Mich App 426, 434; 871 NW2d 868 (2015). This Court reviews a trial
court’s determination regarding the children’s best interests for clear error. In re Sanborn, 337
Mich App 252, 276; 976 NW2d 44 (2021). A trial court’s finding is clearly erroneous “if although
there is evidence to support it, the reviewing court on the entire record is left with the definite and
firm conviction that a mistake has been made.” In re Olive/Metts, 297 Mich App 35, 41; 823
NW2d 144 (2012) (quotation marks, alteration, and citation omitted). This Court defers to the trial
court’s “ ‘special opportunity . . . to judge the credibility of the witnesses who appeared before
it.’ ” In re MJC, ___ Mich App ___, ___; ___ NW3d ___ (2023) (Docket No. 365616); slip op at
9, quoting MCR 2.613(C).
With respect to the termination of parental rights, “[t]he focus at the best-interest stage has
always been on the child, not the parent.” In re Atchley, 341 Mich App 332, 346; 990 NW2d 685(2022) (quotation marks and citation omitted). A trial court making a best-interests determination
should weigh all evidence available to it, considering 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, the advantages of the foster home over
the parent’s home, the length of time the child was in care, the likelihood that the
child could be returned to the parent’s home in the foreseeable future, and the
parent’s compliance with the case service plan. [In re Lombard, ___ Mich App
___, ___; ___ NW3d ___ (2024) (Docket No. 367714); slip op at 5-6.]
A trial court may also consider a parent’s history of mental health issues in determining the
children’s best interests. In re AH, 245 Mich App 77, 89; 627 NW2d 33 (2001). Further, “[t]he
trial court’s findings need not be extensive; ‘brief, definite, and pertinent findings and conclusions
on contested matters are sufficient.’ ” In re MJC, ___ Mich App at ___; slip op at 10, quoting
MCR 3.977(I)(1).
As an initial matter, respondent does not articulate how the trial court failed to properly
consider the best interests of the children. In determining the children’s best interests, the trial
court considered respondent’s mental health and found that respondent had a history of mental
health issues and was opposed to taking medication. The trial court considered that CDN
physically abused the children, and respondent was aware of the children’s injuries but failed to
act. The trial court considered the children’s bond with respondent and found that, although there
was a bond, termination of respondent’s parental rights was in the children’s best interests.
Respondent does not challenge the trial court’s findings as to the factors it considered, nor does
respondent argue that the factors considered by the trial court were inappropriate or impermissible.
Rather, respondent sets forth numerous factual assertions and a conclusory argument that “[t]he
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trial court errs [sic] in determination [sic] that it is in the best interest of [KDN] and [MAN]” to
terminate respondent’s parental rights. We thus infer respondent argues that the trial court clearly
erred by finding termination was in the children’s best interests because the trial court failed to
consider all of the evidence when making its best-interest determination.
Respondent has not established that the trial court clearly erred by finding termination was
in the children’s best interests. Respondent argues that the trial court failed to consider evidence
relevant to the children’s best interests, including evidence that: (1) respondent admitted to the
allegations contained in the petition; (2) respondent had nothing to do with JXN’s death; (3)
respondent had an apartment; (4) respondent regularly visited with the children and the visits went
well; (5) the children want to maintain contact with respondent; (6) Kimberly Lewis, who
conducted respondent’s clinical best-interests evaluation, and the lawyer-guardian ad litem were
both opposed to termination; and (7) the children’s needs were not being met in their preadoptive
placement “due to behavioral and developmental issues.” It is true that a trial court should consider
all available evidence in determining a child’s best interests. In re Lombard, ___ Mich App at
___; slip op at 5. But respondent provides no authority holding that a trial court is required to
make explicit findings as to all relevant evidence when making a best-interests determination;
rather, under MCR 3.977(I)(1), “brief, definite, and pertinent findings and conclusions on
contested matters are sufficient.” In re MJC, ___ Mich App at ___; slip op at 10 (quotation marks
and citation omitted). Accordingly, respondent has not demonstrated that the trial court’s failure
to make explicit findings as to this evidence renders the trial court’s best-interests determination
clearly erroneous.
Moreover, not all of respondent’s factual assertions are supported by the record. At the
best-interests hearing, case worker Claire Maciolek testified that respondent had an apartment in
Detroit, but noted that it was a studio apartment that contained one mattress and nothing child-
related, and was not suitable for an adult and two young children. Maciolek also testified that
respondent’s behavior during her most recent visits with the children was appropriate, but no
evidence was offered demonstrating the regularity or quality of the visits. And Maciolek testified
that respondent refused to take medication or attend therapy for her mental illness, was
unemployed, and had no reported source of income. The lawyer-guardian ad litem did argue that
the children wanted a relationship with respondent and that she, as well as Lewis, opposed
termination of respondent’s parental rights. Although the trial court did not make explicit findings
concerning these precise matters, these arguments were raised before the trial court made its
determination and the trial court concluded that termination of respondent’s parental rights was in
the children’s best interests.
With respect to respondent’s assertion regarding the suitability of the children’s
preadoptive placement, it is true that Maciolek testified that the children’s placement was meeting
the children’s needs at the time of the children’s placement, but was struggling to meet their needs
at the time of the best-interests hearing because of behavioral issues exhibited by MAN. Maciolek
noted, however, that the children’s foster parent mentioned a potential change in placement as a
“worst case scenario.” Despite this evidence, the trial court determined that termination of
respondent’s parental rights was in the children’s best interests. Considering the record in this
case, and that respondent does not challenge the trial court’s findings as to the factors it explicitly
considered, we are not left with the definite and firm conviction that the trial court made a mistake.
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Respondent, therefore, has failed to establish that the trial court clearly erred by determining that
termination of her parental rights was in the children’s best interests.
Respondent next argues that the trial court’s best-interests determination was
constitutionally improper because the trial court failed to consider means less restrictive than
termination before terminating respondent’s parental rights. We disagree.
“The government may not infringe a fundamental liberty interest unless the infringement
is narrowly tailored to serve a compelling state interest.” In re B & J, 279 Mich App 12, 22-23;
756 NW2d 234 (2008). Parents have a fundamental right to make decisions concerning the care,
custody, and control of their children. In re Sanders, 495 Mich 394, 409; 852 NW2d 524 (2014).
But this right is not absolute, and the state has a “legitimate interest in protecting the moral,
emotional, mental, and physical welfare of the minor,” and in certain circumstances “neglectful
parents may be separated from their children.” Id. at 409-410 (quotation marks and citation
omitted). Parents have a right to an adjudication before being deprived of the right to direct the
care, custody, and control of their children. Id. at 418-419. However, “[o]nce the petitioner has
presented clear and convincing evidence that persuades the court that at least one ground for
termination is established . . . the liberty interest of the parent no longer includes the right to
custody and control of the children.” In re Trejo, 462 Mich 341, 355; 612 NW2d 407 (2000).
In this case, respondent pleaded no contest to the statutory grounds for termination, and the
trial court found statutory grounds to terminate respondent’s parental rights under MCL
712A.19b(3)(b)(i), (b)(ii), (g), (j), (k)(iii), (k)(iv), and (k)(v). Accordingly, at the time of the best-
interests hearing, respondent’s liberty interest no longer included the right to custody and control
of her children. Respondent has not presented any authority to support her assertion that the trial
court was required to consider means less restrictive than termination when respondent no longer
possessed a fundamental liberty interest in the custody and control of her children. Respondent,
therefore, has failed to establish that the trial court’s best-interests determination was
constitutionally improper or that the failure to consider less restrictive means than termination
renders the trial court’s best-interests determination clearly erroneous.
Affirmed.
/s/ Colleen A. O’Brien
/s/ Mark J. Cavanagh
/s/ Douglas B. Shapiro
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