In Re Bowerman 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UNPUBLISHED
In re BOWERMAN, Minors. May 16, 2024
No. 367246
Alger Circuit Court
Juvenile Division
LC No. 16-004506-NA
In re BOWERMAN, Minors. No. 367506
Alger Circuit Court
Juvenile Division
LC No. 16-004506-NA
Before: JANSEN, P.J., and MURRAY and O’BRIEN, JJ.
PER CURIAM.
In these consolidated appeals, respondent-mother and respondent-father appeal as of right
the order terminating their parental rights to the four minor children under MCL 712A.19b(3)(c)(i)
and (ii). The four children are members of the Sault Ste. Marie Tribe of Chippewa Indians (the
tribe), and there is no dispute that they are Indian children for purposes of the federal Indian Child
Welfare Act (ICWA), 25 USC 1901 et seq. and the Michigan Indian Family Preservation Act
(MIFPA), MCL 712B.1 et seq. Respondent-mother contends that petitioner, the Department of
Health and Human Services (DHHS), failed to make active efforts to preserve this Indian family
contrary to 25 USC 1912(d) and MCL 712A.15(3). Respondent-father challenges the evidentiary
support for the termination decision. Discerning no error, we affirm.
I. BACKGROUND
Respondents were together for several years and had four children between 2014 and 2021.
In December 2020, Children’s Protective Services (CPS) intervened after a report that respondent-
mother beat respondent-father with a sheathed knife in front of three of the children. When the
CPS investigator went to respondents’ home, he found the family living in an uninhabitable house.
The home lacked utilities, and it was so filled with garbage and clutter that the exits were blocked
and there were no clear paths to walk. CPS and the tribe immediately instituted various services
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to assist respondents. Two 10-yard dumpsters were brought to the house and filled to rectify the
condition of the home. By mid-July 2021, CPS believed respondents’ file would soon be closed.
In August 2021, however, respondent-mother was arrested for driving under the influence
with two of the children in the car. She tested positive for opiates, benzodiazepines, Buprenorphine
(Suboxone), and THC; she did not have an opiate or benzodiazepine prescription. When the CPS
investigator came to the family home for a welfare check after the arrest, he discovered the home
was again unsanitary and cluttered.
Determining that respondents had not benefitted from services, the DHHS filed a petition
to take jurisdiction. Respondent-mother entered a plea to the factual allegations establishing
jurisdiction. Respondent-father requested a trial and was not adjudicated until May 2022. In the
meantime, the condition of the family home further deteriorated. The children’s lawyer-guardian
ad litem reported that there were no clear paths to walk through the home; tables and counters were
piled high with garbage, food, and dirty dishes; the children were sleeping on bare mattresses; and
the stairwell had no railing. Rather than clean the home and return it to habitable conditions,
respondent-mother and the children moved in with respondent-mother’s grandmother (the
children’s maternal great-grandmother). Respondent-father traveled between the family home and
couches of friends and relatives. Due to the conditions of the family home, the court ordered
respondents to not allow the children to return to it. During this time, respondents were offered
services, including family-continuity services through Sault Tribe Family Continuity, housing
assistance, counseling, and drug screens. Both respondents unfortunately avoided any meaningful
participation in the offered services. For instance, according to a report prepared for the court, a
caseworker referred respondent-mother to Boot Lake Counseling Service, and she was scheduled
for an intake counseling session on January 5, 2022 but was a no-call no-show.
In August 2022, police were summoned to the former family home. It appeared that
respondents were living in the home with the children again in violation of the court’s orders. The
officers described the home as “uninhabitable.” When officers arrived, respondents were
inebriated and had fought verbally and physically. Respondent-mother’s blood alcohol content
was 0.16, and respondent-father fled the scene before he could be tested. CPS took the children
to their maternal great-grandmother’s home for the night, but respondents absconded with them in
the morning. This led the DHHS to file an emergency motion to take the children into care and an
amended petition, both of which were granted. In a case service plan covering the period of August
22, 2022 to September 20, 2022, the DHHS described the services to prevent removal as follows:
Pathways Community Mental Health, Sault Tribe Parenting Education with
Jennifer Krueger, Sault Tribe Family Continuity Program Services, Access
Psychological, Mental Health Counseling with Candice Dennis at the Sault Tribe,
Alger County Probation/Parole Office, DHHS Drug Screening, MDHHS CPS
investigation, Sault Tribe Parenting Education, Sault Tribe housing applications
provided, Sault Tribe enrollment application provided, Munising Housing
application provided, Sault Tribe utilities relief application[] provided[.]
Soon after removal, the children were placed in the care of a maternal cousin, who, for a few
weeks, lived across the street from respondents’ home. Respondents repeatedly threatened and
terrorized the foster parents, with the effects flowing to their children. According to a report
submitted to the court, the eldest child, who was eight years old at the time, asked to skip visits
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because “she felt scared when her parents yelled and got angry during visits.” After the child
drafted a list of things respondents could do to help with her anxiety about the visits, respondent-
mother “was openly resistant” to the list and yelled and insulted the child. In October 2022, the
foster parents and the children moved to a home away from respondents’ home. The foster parents
also secured personal protection orders against respondents.
From September 2022 to December 2022, respondents continued to largely avoid
participating in services. Respondent-mother had been diagnosed at some point in the past with
depression and anxiety, and she reported that she was receiving therapy at Bell Women’s Care.
She signed a release for this service, but, unfortunately, no documents verifying this service appear
in the record. While respondents attended parenting times during this period, the visits were often
concerning, particularly due to respondent-mother frequently becoming upset and confrontational.
Caseworkers noted that respondent-mother did not seem to recognize the damage that this conduct
caused the children. It was also noted that the oldest child often reversed roles and parented
respondent-mother during visits. A report prepared for the court stated that respondent-father was
able to control his emotions alone but tended to become hostile when respondent-mother did. His
conduct, unlike respondent-mother’s, was directed only at caseworkers, not the children. But
respondent-father did show up to one parenting time visibly intoxicated, and picked up the
youngest child and dropped him on his face. Thereafter, respondent-father was required to screen
for alcohol before each visit, and he tested negative each time. Both parents were referred to
additional parenting classes.
Both parents also submitted to drug screens during this period. Respondent-mother was
prescribed multiple medications (some to address her mental health issues), but her drug screens
revealed that she was not taking those medications daily. She also tested positive for alcohol,
methamphetamine, and amphetamines. Respondent-father tested positive for the medications that
he was prescribed, but he also tested positive for alcohol, cocaine, THC, and Ritalin, which he did
not have a prescription for. He also self-reported using methamphetamine.
As for housing, respondent-father continued living at the old family home. While progress
had been made to the conditions of the home, the caseworker believed that the home was still
unsafe for the children—it did not have heat or electricity. Respondent-mother continued living
with her grandmother. A worker with Sault Tribe Family Continuity gave respondent-mother
applications for independent housing, but respondent-mother had not completed the forms, saying
that she had no intention of moving from her grandmother’s home.
In January or February 2023, respondent-mother submitted to a psychological evaluation
with psychologist Todd R. Silverstein.1 Dr. Silverstein diagnosed respondent-mother with a
personality disorder with paranoid traits, opioid use disorder (controlled by Buprenorphine or
Suboxone), and stimulant use disorder. According to a case service plan, around the time of this
visit, respondent-mother refused to disclose whether she was participating in any services, such as
services to address her mental health or substance abuse. While she did ask for therapy with the
1
The caseworker testified at the termination trial that respondent-mother received this service in
January 2023, but other documents in the record suggest that she received this service in early
February 2023.
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oldest child to heal their relationship, the child’s therapist opined that this would be damaging to
the child.
Also in January 2023, according to the same case service plan, a caseworker visited
respondent-father at the old family home and convinced him of the need for inpatient mental health
treatment due to recent bouts of suicidal ideation. The case service plan states that the worker
drove respondent-father to the hospital and remained until respondent-father was admitted.
Respondent-father was discharged three days later with instructions to follow up with mental
health treatment through Pathways and substance abuse programming at Great Lakes Recovery,
but he chose not to meaningfully pursue those follow-up services.
The case service plan also details that, on February 1, 2023, respondent-mother told the
caseworker that Pathways denied her mental health services. She further told the worker that she
had a list of other therapists who could help her but did not know which ones would take her
insurance. The caseworker responded by asking respondent-mother to provide the list of therapists
and to give the worker her schedule so they could set up a meeting at which the caseworker could
assist respondent-mother in finding a therapist who would take her insurance. According to the
case service plan, after not hearing from respondent-mother, the caseworker attempted to follow-
up, but respondent-mother either would not provide the relevant details or would not respond. The
worker was eventually able to schedule the meeting with respondent-mother, and it took place on
February 11, 2023. But when the caseworker tried to discuss respondent-mother’s mental health
treatment, respondent-mother told the caseworker “that her only mental concerns were due to her
relationship with this worker.” Respondent-mother then blamed the caseworker for not finding
mental health services for her. The caseworker reminded respondent-mother that she had tried to
contact respondent-mother for the past 10 days and respondent-mother refused to schedule a
meeting. Respondent-mother eventually agreed to allow the caseworker to go to a meeting with
respondent-mother and a tribal worker where they could discuss mental health treatment options.
Respondent-mother also agreed to contact counseling services through the tribe.
The case service plan states that, at the ensuing meeting with the tribal worker on February
15, 2023, the tribal worker provided respondent-mother with information about counseling
services. Respondent-mother represented that she had an appointment with a tribal counselor the
following week, but there is nothing in the record suggesting that this appointment took place. The
caseworker also offered to set up a psychological assessment for respondent-mother, but
respondent-mother expressed misgivings about the offer.
Respondent-father was arrested on March 14, 2023, for carrying a concealed weapon, being
a felon in possession of a firearm, and driving with an open container of alcohol. He was released
on bond on March 18, 2023. On March 30, 2023, a search warrant was executed at respondents’
family home while respondent-father was released on bond. The officers found ammunition
(which respondent-father was not allowed to possess) and evidence supporting that the home was
being used as a drug house.
At an April 10, 2023 hearing, respondent-mother’s counsel represented that respondent-
mother was on a waitlist for counseling services through the tribe, but no one was able to verify
this information because respondent-mother did not sign the necessary release. At the end of the
hearing, the court ordered the DHHS to file a termination petition.
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At the July 20, 2023 termination trial, a Michigan State Police Trooper testified about the
conditions of respondent-father’s home when the trooper executed the search warrant on March
30, 2023. The trooper said that the home was “the worst house I had ever been in.” He described
syringes on the floor, controlled substances in the house, and human feces outside the bathroom.
The caseworker testified that respondent-mother participated in inpatient substance abuse
treatment at Great Lakes Recovery from an unknown start date through April 23, 2023.
Respondent-mother told the caseworker that she had successfully completed the program, but she
would not sign a release of information so the caseworker had no way to verify respondent-
mother’s claim. The caseworker noted, however, that two days after respondent-mother was
discharged from this program, she tested positive for cocaine. Respondent-mother had tested
negative for illegal drugs since, but was also testing negative for Suboxone, despite claiming she
received injections. Great Lakes Recovery advised the caseworker that respondent-mother had
signed the consent for the injections but never returned to receive them.
As to respondent-mother’s mental health, the caseworker reiterated that Dr. Silverstein had
diagnosed respondent-mother with a personality disorder and opioid use disorder. The caseworker
said that, in the same month that respondent-mother met with Dr. Silverstein (January 2023,
according to the worker), she also did an intake at Pathways. The caseworker said that respondent-
mother told the provider that “her only mental health concern was working with [the caseworker],
so they denied her services at that point.” The caseworker subsequently encouraged respondent-
mother to try again and to be more forthcoming, but respondent-mother did not return to Pathways
until July 3, 2023. She then refused to sign a release of information, so Pathways could only
confirm that respondent-mother had done the intake and would be having weekly counseling
sessions.
As to respondent-father, the caseworker testified that he had been incarcerated since June
18, 2023. According to the caseworker, before he was incarcerated, respondent-father was
experiencing increasingly volatile mental health issues—at one point, he cancelled parenting-time
sessions because he believed “bugs were coming out of his mouth”; at another point he tried to
overdose on methamphetamine; he was hospitalized for suicidal ideations for three days in January
2023; and after he was released from the hospital, his mother contacted the caseworker because
respondent-father threatened to kill several people, including one of the children’s foster parents.
This was consistent, according to the caseworker, with respondent-father’s violent tendencies that
he demonstrated throughout the case. The caseworker also detailed respondent-father’s struggles
with substance abuse and his failure to follow through with substance abuse treatment at Great
Lakes Recovery.
The caseworker said that because of both respondents’ volatile behavior, the children’s
foster placement was no longer willing to permanently plan for the children. The DHHS explored
other relative placements, but none were suitable, and the tribe ultimately approved a local family
who was willing to take all four children.
Heidi Nesberg, a caseworker with the tribe, testified that, after discussing the current case
with the tribe’s child welfare committee, she supported termination of respondents’ rights.
Nesberg had been involved in the case from the beginning. Nesberg opined that respondents had
not benefited from the numerous services offered to them. According to Nesberg, respondents’
mental health and substance abuse issues did not improve and respondents committed criminal
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acts while the case was pending. Nesberg said that in the 13 years and 430 cases she had worked,
she had not seen behavior like respondent-mother had exhibited throughout the case. Nesberg
opined that respondent-father “seemed to be the stable parent,” which she found concerning
because respondent-father had gone downhill since December 2022, becoming more suicidal,
testing positive for illegal drugs, and threatening to harm others. Nesberg summarized that both
respondents have “extreme mental health” and substance abuse issues with no hope for
improvement. Nesberg acknowledged respondent-mother’s representation that she was on the
waiting list for mental health services through the tribe, but Nesberg could not verify that
information because respondent-mother would not sign the necessary release.
In relation to active efforts, counsel for petitioner had the following exchange with
Nesberg:
Q. You indicated . . . that you work hard with the agency to make sure
they’re doing necessary to [sic]–for the family in order to be successful; is that
correct?
A. Correct.
Q. Has the agency done everything that . . . has been requested of them or
you’re not requested but have they been doing everything possible to make this
family successful?
A. Yes. . . . I’m in regular contact with the agency. I have been in contact
with you. Any ideas that I have I let . . . you both know and that’s honestly one of
the first things they’re doing. They’re . . . doing what I’m asking them to do so
it’s . . . never been an issue.
Q. So, the agency has taken the active efforts in order to make this family
successful?
A. Yes.
A visitation supervisor, who supervised respondent-mother’s visits with the children,
testified that respondent-mother always attended the visits except when she did inpatient substance
abuse treatment. The visitation supervisor said that the visits occurred at respondent-mother’s
grandmother’s home, and respondent-mother’s grandmother (not respondent-mother) prepared the
home and food for the children. After the most recent visit, the visitation supervisor drove
respondent-mother home, and respondent-mother made multiple statements threatening to harm
the caseworker for her case. The visitation supervisor reported the threats to the police.
The visitation supervisor also supervised respondent-father’s parenting time visits. She
said that, overall, respondent-father “is more kind of like a fun uncle,” “not watching all the kids
at the same time.” She noted, however, that he made the children meals and never inappropriately
disciplined them, screamed, or used force.
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On the basis of the evidence presented, the court found that termination of respondents’
parental rights was proper under MCL 712A.19b(3)(c)(i) and (ii), and that termination was in the
children’s best interests.
Respondents now appeal.
II. ACTIVE EFFORTS
Respondent-mother raises a single challenge on appeal. She claims that the DHHS failed
to make active efforts to preserve the Indian family as required under state and federal law. More
specifically, respondent-mother challenges whether the DHHS made active efforts to provide
respondent-mother with mental health services.
The ICWA and the MIFPA—enacted to protect the best interests of Indian children and
the stability of Indian families, In re Williams, 501 Mich 289, 294; 915 NW2d 328 (2018)—require
proof that active efforts were made to prevent the breakup of the Indian family. MCL 712B.15(2);
25 USC 1912(d). That active efforts were made must be established by clear and convincing
evidence. In re England, 314 Mich App 245, 259-260; 887 NW2d 10 (2016).
This Court reviews for clear error a trial court’s factual finding that active efforts were
proved by clear and convincing evidence. In re Beers, 325 Mich App 653, 680; 926 NW2d 832(2018). A decision is clearly erroneous when, despite evidence supporting the decision, the
reviewing court is left with the definite and firm conviction that a mistake was made. In re
Williams, 286 Mich App 253, 271; 779 NW2d 286 (2009). The interpretation and application of
statutes is a question of law, reviewed de novo. In re Beers, 325 Mich App at 680.
“Active efforts” are defined as “actions to provide remedial services and rehabilitative
programs designed to prevent the breakup of the Indian family and to reunify the Indian child with
the Indian family.” MCL 712B.3(a). “Active efforts require more than a referral to a service
without actively engaging the Indian child and family.” Id. They “require affirmative, as opposed
to passive, efforts,” and are necessarily more than “reasonable efforts.” In re JL, 483 Mich 300,
321; 770 NW2d 853 (2009). “Active efforts involve a caseworker who takes a client through the
steps of a treatment plan rather than requiring the client to perform the plan on his or her own.” In
re Beers, 325 Mich App at 680, citing In re JL, 483 Mich at 321. While the active-efforts bar is
high, “there comes a time when the [DHHS] or the tribe may justifiably pursue termination without
providing additional services.” In re JL, 483 Mich at 326-327.
While the record is not entirely clear about exactly when and what services respondent-
mother received to address her mental health issues, this is largely due to respondent-mother’s lack
of candor and cooperation, as well as her continual refusal to sign the necessary releases. That
said, the information that can be gleaned from the record shows that the DHHS made active efforts
to assist respondent in addressing her mental health issues.
In December 2020, CPS provided a service to respondents entitled “Access Psychological.”
In January 2021, respondent-mother told a CPS worker that she was in counseling but refused to
provide verification of the services. Later, respondent-mother was referred to Boot Lake
Counseling Service, and an intake was scheduled for January 5, 2022, but respondent-mother was
a no call-no show. The court ordered respondent-mother to follow through with that service, but
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she did not. A case service plan states that respondents received counseling services from the tribe
at some point in 2022. At some other unknown time, an unknown clinician diagnosed respondent-
mother with depression and anxiety. Respondent-mother had prescriptions for medications to
address some of her mental health issues, but her drug screens showed that she did not consistently
take those medications. A report prepared in November 2022 states that respondent represented
that she was receiving therapy at Bell Women’s Care. While the same report states that
respondent-mother signed a release for this service, there is no verification of this service is in the
record.
In January or February 2023, respondent-mother received a psychological evaluation from
Dr. Silverstein, who diagnosed respondent-mother with a personality disorder, opioid use disorder,
and stimulant use disorder. The caseworker testified that respondent-mother did an intake with
Pathways in January 2023 but sabotaged the appointment by saying that her only mental health
issue was her caseworker, essentially denying that she had any mental health issues. Pathways
consequently denied respondent-mother service. The caseworker subsequently encouraged
respondent-mother to try again with Pathways to provide them with “more accurate information
about her current mental health needs.” Respondent-mother did not pursue services with Pathways
again until shortly before the termination trial was set to begin.
After Pathways denied her service, respondent-mother told the caseworker that she had a
list of therapists in the community who could provide her treatment but she was unsure which ones
would accept her insurance. The caseworker asked respondent to provide her the list and set up a
time to meet with the caseworker, and the caseworker would assist respondent-mother in calling
the therapists to see which ones would accept respondent-mother’s insurance. Unfortunately,
respondent-mother delayed setting up the meeting. When the meeting finally took place,
respondent-mother only agreed to allow the caseworker to attend a different meeting between
respondent-mother and a tribal worker at which they planned to discuss potential mental health
treatments.
At that meeting, the tribal worker provided respondent-mother with information about
counseling services, and respondent-mother represented that she was pursuing counseling with a
tribal counselor. It does not appear that any such counseling sessions occurred, and respondent-
mother later represented that she was still on the waitlist for tribal counseling services.
Respondent-mother unfortunately refused to sign the necessary releases for this service, so
Nesberg could not verify whether respondent-mother was actually on the waiting list. The
caseworker additionally offered to schedule a psychological assessment for respondent-mother,
but respondent-mother was not amenable to the idea.
Shortly before the termination trial was set to begin, respondent-mother completed a new
intake with Pathways on July 3, 2023. She would not sign a release for caseworkers to gather
information about this service, however.
The above facts demonstrate that respondent-mother received active efforts to address her
mental health issues. Contrary to respondent-mother’s assertion on appeal, respondent-mother
was plainly provided “actual access” to mental health services. The problem in this case was not
a failure to provide respondent-mother with access to mental health services but respondent-
mother’s reluctance to participate in the services offered. The record also belies respondent-
mother’s assertion on appeal that “there was no evidence that caseworkers provided [respondent-
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mother] with anything more than referrals for mental health services.” The record is replete with
instances in which the caseworker went beyond merely referring respondent-mother to services,
as recounted above.
A frequent obstacle to providing mental health services to respondent-mother in this case
was her lack of candor. She told the caseworker at various points that she was already in
counseling, which appears to never have been true—respondent-mother refused to sign the
necessary releases so the caseworker could never verify the services. At other points, respondent-
mother caused delay in receiving services to address her mental health by refusing to be forthright.
For instance, respondent-mother caused Pathways to deny her services at the January 2023 intake
session by essentially denying that she had any mental health issues.2
Respondent-mother complains on appeal that the DHHS did not follow-up after the court
offered to sign a letter to tribal counseling services emphasizing the need for respondent-mother’s
enrollment in the service, but this complaint rings hollow. Respondent-mother refused to sign the
necessary release, so no one was able to confirm whether respondent-mother was even on the
waitlist for tribal counseling services. Nesberg, moreover, testified that she always let the DHHS
know when she had any suggestions for services, and that the DHHS always acted on Nesberg’s
ideas “first thing[].” She further testified that the DHHS provided active efforts in this case.
In sum, it is clear that the problem throughout this case was not a failure to provide
respondent-mother with access to mental health services but respondent-mother’s refusal to engage
in the services offered. No one could force respondent-mother to meaningfully participate in
services. The DHHS made affirmative efforts to assist respondent-mother in treating her mental
health issues; it did not leave respondent-mother to try to navigate her treatment plan on her own
but attempted to assist her every step of the way. On this record, the trial court did not clearly err
when it found that active efforts were proved by clear and convincing evidence.
III. RESPONDENT-FATHER’S TERMINATION
Respondent-father argues on appeal that the DHHS presented insufficient evidence to
support the termination of his parental rights. Contesting the trial court’s finding of a statutory
ground for termination, respondent-father contends that the trial court gave too much weight to (1)
his suicidal ideations that required inpatient psychiatric care and (2) his criminality. Contesting
the trial court’s finding that termination was in the children’s best interests, respondent-father
contends that the trial court erred by focusing too much on respondent-father’s conduct, did not
focus on each child individually, and failed to consider that the children were in a relative
placement.
2
On appeal, respondent-mother claims that her actions at the Pathways intake session were
“[i]ronically” attributable to her mental health issues. It is not apparent that this is true, but
regardless, after the denial, the caseworker encouraged respondent-mother to try again with
Pathways to provide them with “more accurate information about her current mental health needs.”
This goes beyond a mere referral, contrary to respondent-mother’s assertion on appeal.
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A. STATUTORY GROUNDS
A lower court’s finding that a statutory ground for termination was proved by clear and
convincing evidence is reviewed for clear error. In re Mason, 486 Mich 142, 152; 782 NW2d 747(2010).
The trial court terminated respondent-father’s parental rights under MCL
712A.19b(3)(c)(i) and (ii). Those subsections provide that a court may terminate a parent’s
parental rights if it finds by clear and convincing evidence that
(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. [MCL 712A.19b(3)(c)(i) and
(ii).]
Because this case involved Indian children under the ICWA and MIFPA, in addition to finding at
least one statutory ground for termination, the trial court needed to find beyond a reasonable doubt
that continued custody of the children by respondent-father was likely to result in serious
emotional or physical harm to the children before it could terminate respondent-father’s parental
rights. MCL 712B.15(4). See also In re England, 314 Mich App at 253.
It is undisputed that 182 or more days had elapsed since the initial dispositional order was
entered. The court took jurisdiction over the children as to respondent-father based on the
neglectful health and safety issues in the home. Respondent-father never remedied the unsafe
conditions of the home or found housing suitable for his family. Indeed, the record, particularly
the trooper’s testimony at the termination trial, suggests that the unsanitary conditions of the home
only worsened as the case progressed. Given respondent-father’s general failure to comply with
his court-ordered case service plan, there was no chance he would rectify the housing situation
within a reasonable time given the children’s ages, supporting termination under MCL
712A.19b(3)(c)(i).
As to MCL 712A.19b(3)(c)(ii), additional conditions came to light during the pendency of
these proceedings, including respondent-father’s ongoing criminality, mental health issues, and
substance abuse. Respondent-father was arrested once in November 2022 and twice in March
2023. His arrests revolved around possessing weapons and controlled substances. Respondent-
father repeatedly violated the conditions of his probation by drinking alcohol and using controlled
substances. He was incarcerated for a time in March 2023, and again on June 18, 2023. At the
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time of the termination hearing, it was believed that respondent-father could be imprisoned for an
extended period on his latest charges. In addition to these charged offenses, respondent-father’s
criminality included using illegal substances and threatening to kill respondent-mother, the foster
parents, other family members, and a drug dealer.
Concerning mental health, respondent-father expressed suicidal and homicidal ideations
beginning in November 2022. During this time, respondent-father also hallucinated, claiming that
he could not attend parenting times because he had “bugs . . . coming out of his mouth.” He
refused treatment after trying to commit suicide in December 2022. Respondent-father agreed to
get treatment in January 2023 and was hospitalized for three days. During his stay, respondent-
father apparently underwent a psychological or psychiatric evaluation, but he refused to sign
releases to give the caseworkers access to that information. He went to the emergency room once
more at the end of January 2023 due to continuing mental health concerns, but allegedly did not
meet the criteria for a psychiatric commitment. Respondent-father briefly attended counseling at
Pathways after his hospital release but then suddenly stopped going. With this service too,
respondent-father refused to sign releases for the caseworkers to access necessary information.
As for respondent-father’s issue with substance abuse, references to his substance abuse
abound in the lower court record. Respondent-father claimed that he had not used illegal drugs
since before his children were born but started again after they were removed from his care.
Respondent-father repeatedly tested positive for methamphetamine, amphetamines, cocaine, and
marijuana. He admitted to drinking alcohol daily. Respondent-father may have also abused
respondent-mother’s prescription medication, as those substances were found in his system on
more than one occasion. And his substance abuse affected his ability to effectively parent, even
while the children were not in his care—respondent-father once attended parenting time under the
influence. Workers had trouble communicating with respondent-father on multiple occasions
because he was incoherent and under the influence. Respondent-father continued to test positive
for substances up until his June 18, 2023 incarceration.
On appeal, respondent-father tries to minimize his mental health issues, claiming that
“there is no evidence in the record that ongoing mental health concerns were an issue for”
respondent-father. Yet the record plainly belies this assertion. Respondent-father experienced
significant mental health crises during the case, and nothing in the record supports that he
adequately addressed the underlying issues to prevent future episodes.
Respondent-father likewise tries to minimize his criminality, emphasizing that “none of
the charges involve abuse of the children, nor are they assaultive in nature, and finally were not
alleged to have been committed in the presence of the children.” While true, it does not change
the fact that respondent-father’s criminality became an issue during these proceedings and
remained an issue by the time of the termination trial. His criminality, moreover, seemed largely
tied to his abuse of illegal substances. Respondent-father offers nothing to rebut that his substance
abuse became a significant barrier during these proceedings and that it remained a barrier at the
time of the termination trial.
Given the longstanding nature of these issues, respondent-father’s refusal to address them,
and the fact that the issues got worse during the pendency of these proceedings, the DHHS not
only established that these conditions continued to exist, but also that respondent-father could not
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rectify them within a reasonable time. Termination was thus supported under MCL
712A.19b(3)(c)(ii).
For reasons similar to those supporting the trial court’s findings of statutory grounds for
termination, the trial court did not clearly err when it found beyond a reasonable doubt that
continued custody of the children by respondent-father was likely to result in serious emotional or
physical harm to the children. Respondent-father did not have a habitable home for the children
to live in, he continued to have significant unresolved mental health issues, he was engaged in
ongoing criminality that could potentially subject the children to harm, and he had unresolved
issues with substance abuse that affected his ability to safely parent the children. Any one of these
issues posed a risk of emotional or physical harm to the children, but that all of the issues remained
unresolved supported the trial court’s finding beyond a reasonable doubt that continued custody
of the children by respondent-father was likely to result in serious emotional or physical harm to
the children. The trial court accordingly did not clearly err when it found that (1) a statutory
ground for termination was proved by clear and convincing evidence and (2) the requirements of
MCL 712B.15(4) were proved beyond a reasonable doubt.
B. BEST INTERESTS
“Once a statutory ground for termination has been proven, the trial court must find that
termination is in the child’s best interests before it can terminate parental rights.” In re Olive/Metts
Minors, 297 Mich App 35, 40; 823 NW2d 144 (2012), citing MCL 712A.19b(5) and MCR
3.977(E)(4). “[W]hether termination of parental rights is in the best interests of the child must be
proven by a preponderance of the evidence.” In re Moss, 301 Mich App 76, 90; 836 NW2d 182(2013). A trial court’s finding that termination of parental rights is in a child’s best interests is
reviewed for clear error. In re Jones, 286 Mich App 126, 129; 777 NW2d 728 (2009).
A trial court’s best-interest decision must be based on evidence gleaned from the whole
record. In re Brown/Kindle/Muhammad, 305 Mich App 623, 637; 853 NW2d 459 (2014).
Relevant factors 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.” In re Olive/Metts Minors, 297 Mich App at 41-42 (citations 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.” In re White, 303 Mich App 701, 714; 846 NW2d 61 (2014).
“Other considerations include the length of time the child was in care [and] the likelihood that the
child could be returned to her parents’ home within the foreseeable future, if at all.” In re
Payne/Pumphrey/Fortson, 311 Mich App 49, 64; 874 NW2d 205 (2015) (quotation marks and
citation omitted). Placement with a relative weighs against termination. In re Olive/Metts Minors,
297 Mich App at 43. “With respect to the trial court’s best-interests determination, we place our
focus on the child rather than the parent.” In re Schadler, 315 Mich App 406, 411; 890 NW2d 676(2016).
First, contrary to respondent-father’s contention, the children’s ongoing relative placement
was considered before terminating his parental rights. The foster parents had changed their minds
and were no longer willing to permanently care for the children because of respondent-mother’s
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threats and behavior. No other suitable family member was located and the children would likely
be placed with a local family approved by the tribe.
Turning to the substance of the lower court’s best-interest determination, the court did not
clearly err by finding that the record evidence preponderated in favor of termination. By the time
of the termination hearing, respondent-father had not complied with any component of his case
service plan and was in a much worse condition than when the case began in September 2021.
There was a strong likelihood that respondent-father would soon be imprisoned for an extended
period for various offenses he committed in November 2022 and March 2023. While respondent-
father shared a strong bond with the children, his mental health issues and incarcerations kept him
from many parenting-time sessions. He attended at least one parenting-time session under the
influence. Respondent-father lived with the children in unsanitary conditions before their removal
from his care, and he made no attempt to rectify that condition to improve his chances of regaining
custody. Respondent-father likewise made no attempt to achieve sobriety so that he could safely
parent the children. Despite his love for the children, the record is clear that respondent-father
could not provide a safe environment for the children or safely supervise them. And given his
delays in making any effort to rehabilitate, respondent-father would not be able to do so in a
reasonable time. The children needed finality and stability, and they could not continue waiting
for respondent-father to demonstrate that he could provide that.
Respondent-father’s final complaint that the court should have considered the best interests
of each child separately does not warrant relief. “[I]f the best interests of the individual children
significantly differ, the trial court should address those differences when making its determination
of the children’s best interests.” In re White, 303 Mich App at 715. Otherwise, a court does not
err “if it fails to explicitly make individual and—in many cases—redundant factual findings
concerning each child’s best interests.” Id. at 716. Although the two eldest children had a closer
bond with respondent-father, the children would be in equal danger if returned to respondent-
father’s custody. Respondent-father’s unaddressed substance abuse, mental health issues, and
ongoing criminality placed each child at risk. Separate consideration was therefore not required.
IV. CONCLUSION
The DHHS and tribal service providers made active efforts to preserve the Indian family.
Respondent-mother’s lack of participation in much-needed mental health services was not due to
any failure on the agencies’ part. The DHHS provided sufficient evidence to support finding
statutory grounds for terminating respondent-father’s parental rights and finding termination to be
in the children’s best interests.
Affirmed.
/s/ Kathleen Jansen
/s/ Christopher M. Murray
/s/ Colleen A. O’Brien
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