In Re Baby Boy Frasier ( 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UNPUBLISHED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 BABY BOY FRASIER, Minor. May 23, 2024
No. 367015
Wayne Circuit Court
Family Division
LC No. 2021-000822-NA
Before: BORRELLO, P.J., and SWARTZLE and YOUNG, JJ.
PER CURIAM.
The trial court terminated respondent’s parental rights to BBF after her rights had
previously been terminated to another child, BBF was born with substances in his system, and
respondent had not rectified other conditions that led to the previous termination. We affirm.
Petitioner filed a petition to remove BBF from respondent’s care and to terminate her
parental rights after BBF was born because respondent had abandoned BBF, had a history of
substance abuse, was homeless, had untreated mental-health issues, and had previously had her
rights terminated to another child, JM. Respondent’s parental rights to JM were terminated
because she had abandoned him and failed to complete or benefit from her case-service plan.
BBF’s father was unknown, and respondent told CPS that she wanted to sign over her parental
rights because she could not plan for BBF.
Following a preliminary hearing, the trial court authorized the petition, explaining that
respondent abandoned BBF at the hospital without making provision for him; used marijuana and
cocaine while pregnant with BBF; had a history of unstable housing, lack of employment, and
mental illness; and had her rights terminated to JM for failure to comply with a treatment plan and
rectify the conditions that led to the removal of JM. The trial court stated that the conditions were
“similar” to those with BBF. For those reasons, the trial court stated that petitioner did not need
to make efforts toward reunification with BBF. In its order following the preliminary hearing, the
trial court noted that reasonable efforts were not required due to respondent subjecting the child to
abandonment, maltreatment, and drug exposure as provided in MCL 722.638(1) and (2).
Respondent’s rights to JM had been terminated following a trial that occurred in March
2023, approximately six weeks before BBF was born. In that earlier case, the trial court found that
statutory grounds to terminate existed under MCL 712A.19b(3)(a)(ii), (c), and (j). The trial court
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noted, however, that it did not find statutory grounds under (g) because it could not “say for sure
that mother has financial ability to care for the kid. $900 a month is not probably enough to care
for anybody, herself alone.”
As to BBF, the trial court held a combined adjudication and termination hearing in June
2023, approximately two-and-a-half months after BBF was born. The trial court took judicial
notice of its orders in respondent’s prior case involving JM. The trial court noted that the
termination order for JM showed that respondent was receiving $900 a month in disability benefits,
did not have a suitable home, and had never visited JM or completed services. Further, the trial
court stated that the adjudication order from November 2021 in JM’s case “centered around” her
use of heroin, cocaine, and marijuana, and her failure to obtain drug treatment or visit JM.
A CPS specialist testified that BBF had been born positive for cocaine and
tetrahydrocannabinol (THC) and had to be transferred to the neonatal-intensive care unit after
birth. The CPS specialist additionally testified that respondent left BBF at the hospital and did not
return to visit him. At first, CPS could not reach respondent, but respondent attended a Team-
Decision Meeting (TDM) seven days after BBF was born, at which respondent appeared
disconnected and jittery and made irrational statements. The CPS specialist thought that
respondent appeared to be under the influence at the TDM.
Respondent reported to CPS that she had used cocaine “up to” the week of delivering BBF.
Respondent also stated at that time that she wanted BBF to be adopted because respondent could
not plan for BBF. Respondent did not want BBF to go with any relatives because respondent did
not “want to deal with the family.” Respondent reported that she was homeless and not engaged
in counseling for her depression or bipolar disorder.
The CPS specialist encouraged respondent at the TDM to engage in supervised visits with
BBF and provided respondent with a community-resource guide, which provided information on
substance-abuse services, housing resources, and parenting classes. The CPS specialist further
testified that BBF was in placement with an aunt and, if respondent’s parental rights were
terminated, the permanency plan would be adoption. The CPS specialist testified that respondent
did not complete services in the previous case and that termination was in BBF’s best interests.
Respondent testified that she visited BBF at the hospital after she left, but she could not
remember which days she visited. Respondent additionally testified that she engaged in “over ten
visits” with BBF after he went to live with respondent’s sister and then began to engage in virtual
visits. Later, respondent testified that she visited BBF five times after the preliminary hearing, but
that she could no longer visit him in person “[w]ith this going on.” Respondent testified that she
received social-security benefits because of her mental health, and she could use those benefits to
find housing and support herself. Respondent was living with a friend while she looked for her
own housing. Respondent further testified that she was engaged in counseling and took
medication to address her mental-health concerns. Respondent testified that she also used THC to
help with her mental health. Further, respondent was engaged in parenting classes.
A foster-care worker testified that she was not aware that respondent received social-
security benefits and that respondent had not provided any proof of income. The foster-care
worker explained that respondent had engaged in one virtual visit and respondent could receive
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transportation assistance for visits. Respondent had failed to confirm “the first few visits.”
Respondent told the foster-care worker that she did not have suitable housing, and the foster-care
worker provided her with housing resources.
After receiving the evidence, the trial court made its ruling. The trial court first found that
there was a preponderance of evidence for the court to take jurisdiction on the basis of respondent’s
statements at the TDM, her testimony, the previous court orders, and the medical records. As to
termination, the trial court found that the unnamed father had abandoned BBF. In regard to
respondent, the trial court found that grounds for termination existed under MCL 712A.19b(3)(g),
(i), (j), and (k)(i) and that termination was in BBF’s best interests.
The trial court issued a written order terminating respondent’s rights to BBF. The trial
court found that, under (g), respondent had failed to provide proper care or custody for BBF and
there was no reasonable expectation that she would do so in a reasonable time when her rights had
been so recently terminated to JM after 16 months of offered services. Next, under (i), the trial
court found that respondent’s rights had been terminated to JM, and she had failed to rectify the
conditions that led to the termination. Further, under (j), the trial court found a reasonable
likelihood that BBF would be harmed if returned to respondent’s care because of her history of
untreated substance abuse and mental-health issues. Finally, under (k)(i), the trial court found that
respondent had abandoned JM.
Further, the trial court found that, although BBF was placed with a relative, termination
was in the child’s best interests when respondent had failed to follow the treatment plan in JM’s
case, visit JM, obtain stable housing, or visit BBF more than one time. Respondent’s history of
untreated mental illness and substance abuse, continued use of cocaine and marijuana, and her
previous termination of parental rights, while pregnant with BBF, all weighed in favor of
termination of her rights to BBF. The trial court noted that BBF was entitled to stability and
permanence.
Respondent now appeals.
Respondent argues that the trial court erred by finding that there was clear and convincing
evidence to support any of the statutory grounds for termination. This Court reviews for clear
error a trial court’s finding that a statutory ground for termination has been established by clear
and convincing evidence. In re Moss, 301 Mich App 76, 80; 836 NW2d 182 (2013). “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.” Id. (citation omitted).
“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). Under MCL 712A.19b(3)(g), a court
may terminate parental rights if it finds clear and convincing evidence that “[t]he parent, although,
in the court’s discretion, financially able to do so, fails to provide proper care or custody for the
child and there is no reasonable expectation that the parent will be able to provide proper care and
custody within a reasonable time considering the child’s age.”
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The trial court made no finding that respondent was financially able to provide proper care
and custody before terminating rights. The trial court relied on the order terminating respondent’s
parental rights to JM to find that respondent received $900 monthly social-security benefits. In
that case, however, the trial court did not terminate rights under (3)(g) specifically because the trial
court could not find that a $900 income meant that respondent was financially able to provide
proper care and custody to JM. In BBF’s case, there is, likewise, no evidence from which we can
infer that respondent was financially able to provide proper care or custody for BBF. Respondent
lacked suitable housing and testified that she was exploring low-income housing options.
Respondent also did not provide any proof of income to CPS. This record does not support an
inference that respondent was financially able to provide care and custody. Therefore, the trial
court clearly erred by finding that termination was proper under (3)(g).
The trial court did not clearly err, however, when it found that termination was proper
under MCL 712A.19b(3)(j), which provides for termination when there is clear and convincing
evidence of “a reasonable likelihood, based on the conduct or capacity of the child’s parent, that
the child will be harmed if the child is returned to the home of the parent.” “The harm
contemplated under MCL 712A.19b(3)(j) includes emotional harm as well as physical harm.” In
re Sanborn, 337 Mich App 252, 279; 976 NW2d 44 (2021). A parent’s failure to comply with a
service plan is evidence that a child will be harmed if returned to the parent’s care. In re White,
303 Mich App 701, 711; 846 NW2d 61 (2014).
Respondent indisputably failed to comply with her service plan in JM’s case, and her rights
to JM were terminated only a month before BBF was born. Respondent engaged in no visitation
with JM and then left BBF at the hospital after he was born. Although respondent claimed to have
engaged in visitation with BBF, CPS did not see respondent at the hospital. Further, beyond briefly
testifying that she was engaged in services, respondent has not presented evidence that she was
engaged in, or benefiting from, services. Respondent’s and BBF’s positive screens for drugs in
April 2023 indicate that respondent had not benefited from substance-abuse services, even if she
had participated in them. Respondent also had not obtained suitable housing or shown that she
was actively engaged in mental-health services. Therefore, the trial court did not clearly err by
finding that there was a reasonable likelihood that BBF would be harmed if returned to
respondent’s care. See id. at 713. Because a trial court need only find that one statutory ground
was proven by clear and convincing evidence, there is no need to review the additional grounds.
See In re Ellis, 294 Mich App at 32.
Next, respondent argues that the trial court erred by finding that termination was in BBF’s
best interests. This Court reviews for clear error a trial court’s determination about a child’s best
interests. In re White, 303 Mich App at 713. If a court finds grounds for termination of parental
rights and that termination is in the child’s best interests, “the court shall order termination of
parental rights.” MCL 712A.19b(5). The trial court must determine, by a preponderance of the
evidence, whether termination is in the child’s best interests. In re White, 303 Mich App at 713.
The trial court should consider all of the evidence when determining whether it is in the child’s
best interests to terminate parental rights, which “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.” Id. (cleaned up). Because “a child’s
placement with a relative weighs against termination,” a trial court must explicitly consider that
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fact when determining whether termination is in the child’s best interests. In re Olive/Metts, 297
Mich App 35, 43; 823 NW2d 144 (2012).
There was no evidence in the record indicating that respondent had a bond with BBF.
Respondent demonstrated poor parenting ability by abandoning JM, leaving BBF at the hospital,
and only, according to the foster-care worker, engaging in one virtual visit. Although respondent
testified that she visited BBF multiple times, the trial court specifically found that respondent’s
“testimony just overall was not credible.” This Court defers to the trial court with respect to
credibility of witnesses. In re White, 303 Mich App at 711. Further, the trial court found that
termination was the best way for BBF to achieve stability and permanence, considering
respondent’s history of instability, recent termination of parental rights to JM, lack of compliance
with services, untreated substance abuse and mental illness, and lack of stable housing.
Respondent claims on appeal that her circumstances have changed since her parental rights to JM
were terminated and that she is engaging in services, but the record does not support respondent’s
assertions.
Despite respondent’s argument that the trial court failed to consider that BBF was placed
with a relative when making its best-interest determination, the trial court explicitly considered
this factor in its order in stating that termination was in BBF’s best interests despite his placement
with an aunt. A court speaks through its written orders. See In re KMN, 309 Mich App 274, 287;
870 NW2d 75 (2015). Therefore, the trial court properly considered BBF’s placement with a
relative when making its best-interest determination.
Finally, respondent briefly argues that the trial court should have permitted respondent time
to comply with a service plan and work toward reunification. Respondent did not, however,
include this issue in her statement of questions presented. Accordingly, this Court need not address
it. See Butler v Simmons-Butler, 308 Mich App 195, 210; 863 NW2d 677 (2014). Regardless,
this Court finds no error in the trial court’s determination that reasonable efforts were not required.
Reasonable efforts toward reunification of a parent and child must be made in all cases
except those involving certain circumstances under MCL 712A.19a(2). See In re Sanborn, 337
Mich App at 259. One such circumstance is when the respondent “has had rights to the child’s
siblings involuntarily terminated and the parent has failed to rectify the conditions that led to that
termination.” MCL 712A.19a(2)(c). The trial court, therefore, properly ordered at the preliminary
hearing that reasonable efforts were not required when the same conditions that resulted in the
termination of respondent’s rights to JM existed at the time of BBF’s removal. See In re Sanborn,
337 Mich App at 261-262.
Affirmed.
/s/ Stephen L. Borrello
/s/ Brock A. Swartzle
/s/ Adrienne N. Young
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