In Re P L Prater Minor ( 2023 )

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UNPUBLISHED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 P. L. PRATER, Minor. December 21, 2023
Nos. 365241; 365242
Wayne Circuit Court
Family Division
LC No. 2020-001148-NA
Before: JANSEN, P.J., and CAVANAGH and GADOLA, JJ.
PER CURIAM.
In Docket No. 365241, respondent-mother appeals as of right the trial court’s order
terminating her parental rights to the minor child pursuant to MCL 712A.19b(3)(a)(ii), (c)(i),
(c)(ii), (g), (h), and (j). In Docket No. 365242, respondent-father appeals as of right the same order
terminating his parental rights to the child under the same statutory grounds. We affirm in both
appeals.
I. BACKGROUND
The minor child was removed from respondent-mother’s custody at birth after the child
tested positive for opiates, cocaine, and marijuana, and respondent-mother admitted using those
substances during her pregnancy and not receiving regular prenatal care. The identity of the child’s
biological father was not known at that time. The trial court acquired temporary jurisdiction over
the child after respondent-mother made several admissions to allegations in the initial petition for
removal. The trial court ordered a treatment plan for respondent-mother that included substance-
abuse services, a psychological assessment, drug screens, individual therapy, and parenting classes
or Infant Mental Health (IMH) services, among other things. Subsequently, respondent-father was
identified as the child’s father and made a respondent in the proceedings. The trial court found
that respondent-father was unable to provide care or custody because he was in prison and had a
felony drug conviction. The trial court ordered a treatment plan for respondent-father that required
parenting classes or IMH services, a substance-abuse assessment and drugs screens, if necessary,
maintaining suitable housing and a legal sources of income, maintaining contact with the
caseworker and attending all court hearings.
The child was placed with a nonrelative foster family. During the pendency of the case,
respondent-father sought placement of the child with his sister, Sharon Bushong. That placement
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was eventually approved, but the foster parents appealed and the Foster Care Review Board
(FCRB) ruled that it was in the child’s best interests to remain with the nonrelative foster parents.
For reasons that will be discussed, the trial court did not timely hold a hearing to review the
FCRB’s decision and proceeded to a termination hearing. At the termination hearing, it was
established that respondent-mother failed to comply with or benefit from almost all of the services
provided in her treatment plan, and she was incarcerated at the time of the termination hearing.
Respondent-father remained incarcerated during the entire case, completed the services that were
available to him in prison, and ultimately faced additional charges with a possible 20-year
sentence. The trial court found statutory grounds to terminate both respondents’ parental rights
and found that termination of their parental rights was in the child’s best interests. These appeals
followed.1
II. DOCKET NO. 365241
In Docket No. 365241, respondent-mother argues that termination of her parental rights
was not in the child’s best interests. We disagree.
“The trial court must order the parent’s rights terminated if the Department has established
a statutory ground for termination by clear and convincing evidence and it finds from a
preponderance of the evidence on the whole record that termination is in the children’s best
interests.” In re White, 303 Mich App 701, 713; 846 NW2d 61 (2014); see also MCL 712A.19b(5).
This Court reviews “for clear error the trial court’s determination regarding the children’s best
interests.” In re White, 303 Mich App at 713. “A trial court’s decision is clearly erroneous [i]f
although there is evidence to support it, the reviewing court on the entire evidence 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 and citation omitted).
“The 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).
“The trial court should weigh all the evidence available to determine the children’s best interests.”
In re White, 303 Mich App at 713. The trial court “should consider a wide variety of factors,”
including “the child’s bond to the parent, the parent’s parenting ability, the child’s need for
permanency, stability, and finality,” “the advantages of a foster home over the parent’s home[,]”
“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 713-714 (quotation marks and citations omitted). “A child’s
placement with relatives is a factor that the trial court is required to consider.” In re
Gonzales/Martinez, 310 Mich App 426, 434; 871 NW2d 868 (2015). “Placement with a relative
weighs against termination, but that fact is not dispositive given that a trial court may terminate
1
Respondent-father also filed two complaints for a writ of superintending control, which this Court
dismissed on the ground that the issues raised in those complaints could be raised in this appeal.
In re Dixon, unpublished order of Court of Appeals, entered August 3, 2023 (Docket No. 366618);
In re Dixon, unpublished order of the Court of Appeals, entered June 14, 2023 (Docket No.
366146).
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parental rights in lieu of placement with relatives if it finds that termination is in the child’s best
interests[.]” In re Atchley, 341 Mich App at 347 (quotation marks and citation omitted).
Respondent-mother argues that she “should” be out of jail soon, she is drug-free, and she
will be ready to plan for the child. She argues that because the child should have been placed with
Bushong, who is a relative, respondent-mother should be given additional time to plan for the
child. Respondent-mother asserts that it is not in the child’s best interests to cut off her relations
with respondent-mother and respondent-father’s “extensive family.” Respondent-mother wants
an opportunity to have a bond with the child.
The trial court did not clearly err by finding termination of respondent-mother’s parental
rights was in the child’s best interests. As respondent-mother acknowledges, there was no
evidence that she had a bond with the child. She visited the child only 22 out of a possible 103
times and failed to visit at all from June 17, 2021 to April 6, 2022. By failing to consistently visit,
she failed to develop a bond with the child, despite being given the opportunity to do so. Further,
although respondent-mother claims to have stopped using drugs while in jail, she was unable to
stay drug-free when she was not in jail, despite being offered services on several occasions.
Respondent-mother was not in compliance with her treatment plan at the time of the termination
hearing, and she failed to complete almost every aspect of her treatment plan. Her failure to
complete parenting classes, failure to consistently visit, and inappropriate visits also showed an
inability to parent. The trial court did not clearly err by finding that the child needed stability and
permanency, which respondent-mother could not provide. In addition, the child was bonded with
her foster parents, who were willing to adopt the child.
Respondent-mother’s argument that she should be given more time because the child
should have been placed with Bushong is without merit. While Bushong was approved and
recommend by petitioner according to “agency preference for relative placements,” the FCRB
determined that moving the child was not in the child’s best interests. As will be discussed further,
the trial court agreed with the FCRB in its termination order that placement with Bushong was not
in the child’s best interests. Because the child was not placed with a relative, relative placement
was not a specific factor that was required to be considered by the trial court in this case. Moreover,
the foster care worker, Kayla Barrios, testified that even if the child had been placed with a relative,
she still would have recommended termination of both respondents’ parental rights. As noted,
placement with a relative is not dispositive. In re Atchley, 341 Mich App at 347. Considering the
record as a whole, the trial court did not clearly err by finding that termination of respondent-
mother’s parental rights was in the child’s best interests.
Respondent-mother also mentions that there was not clear and convincing evidence to
support any of the statutory grounds for termination and that petitioner has an affirmative duty to
make reasonable reunification efforts. However, she did not raise these issues in her statement of
questions presented and fails to elaborate on these arguments. Therefore, they are abandoned and
need not be considered. See Berger v Berger, 277 Mich App 700, 712; 747 NW2d 336 (2008) (“A
party abandons a claim when it fails to make a meaningful argument in support of its position.”);
see also MCR 7.212(C)(5).
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III. DOCKET NO. 365242
In Docket No. 365242, respondent-father argues that (1) the trial court abused its discretion
by not holding a hearing to review the FCRB’s decision before the termination hearing, (2) the
trial court erred by finding statutory grounds for termination, (3) the trial court erred by failing to
consider that it was in the child’s best interests to be placed with a relative, and (4) termination of
his parental rights was unconstitutional because there were less restrictive means of promoting the
child’s welfare.
A. REVIEW HEARING
Respondent-father argues that the trial court abused its discretion by failing to hold a
review hearing on the FCRB’s decision before terminating his parental rights. Although the trial
court failed to hold a hearing as required by the relevant statute, the error was harmless.
“This Court reviews de novo the interpretation and application of statutes[.]” In re Nikooyi,
341 Mich App 490, 494; 991 NW2d 619 (2022). MCL 712A.13b provides, in relevant part:
(3) Upon receipt of an appeal from foster parents under subsection (2) or
(7), the foster care review board shall investigate the change in foster care
placement within 7 days and shall report its findings and recommendations within
3 days after completion of the investigation to the court or, if the child is under MCI
jurisdiction, control, or supervision, the MCI superintendent, to the foster care
parents, to the parents, and to the agency.
(4) If after investigation the foster care review board determines that the
move is in the child’s best interests, the agency may move the child.
(5) If after investigation the foster care review board determines that the
move is not in the child’s best interest, the agency shall maintain the current
placement until a finding and order by the court or, if the child is under MCI
jurisdiction, control, or supervision, a decision by the MCI superintendent. The
agency shall not return a child to a placement from which the child was removed
under subsection (7) unless the court orders that placement’s restoration under
subsection (6) or the MCI superintendent approves that placement’s restoration
under this subsection. The foster care review board shall notify the court, or if the
child is under MCI jurisdiction, control, or supervision, the MCI superintendent,
about the board’s and agency’s disagreement. The court shall set a hearing date
and provide notice to the foster parents, each interested party, and the prosecuting
attorney if the prosecuting attorney has appeared in the case. The court shall set
the hearing no sooner than 7 and no later than 14 days after receipt of the notice
from the foster care review board. The rules of evidence do not apply to a hearing
required by this subsection. Within 14 days after notification under this subsection,
the MCI superintendent shall make a decision regarding the child’s placement and
shall inform each interested party what the decision is.
(6) After hearing testimony from the agency and any other interested party
and considering any other evidence bearing upon the proposed change in
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placement, the court shall order the continuation or restoration of the placement
unless the court finds that the proposed change in placement is in the child’s best
interests. [Emphasis added.]
The trial court received a report from the FCRB on November 23, 2022. According to the
report, the FCRB’s decision was made on August 31, 2022, following an investigation conducted
at the request of the foster parents. The report instructed the court to hold a hearing within 7 to 14
days of receiving the report. The trial court held a hearing on December 9, 2022, which
respondent-father attended, but respondent-mother was not present from jail. The trial court
decided to continue the hearing in January 2023, with both respondents present, and that it would
allow the termination hearing to continue in the meantime. On January 18, 2023, the trial court
concluded that the request for review was moot because respondents’ parental rights had been
terminated by the referee.
The record establishes that the trial court did not hold a hearing within 7 to 14 days after
receiving the report from the FCRB. The December 9, 2022 hearing was held 16 days after the
trial court received the FCRB’s report, but that hearing was not completed because respondent-
mother was not present. Although the review hearing was never completed, respondent-father
does not address the trial court’s subsequent finding that his request for review was moot because
respondents’ parental rights had been terminated. Respondent-father also fails to cite any support
for his argument that a FCRB review hearing must be held before a termination hearing.
To the extent that the trial court erred by failing to hold a review hearing before terminating
respondents’ parental rights, respondent-father is not entitled to relief. MCR 2.613(A) provides:
An error in the admission or the exclusion of evidence, an error in a ruling
or order, or an error or defect in anything done or omitted by the court or by the
parties is not ground for granting a new trial, for setting aside a verdict, or for
vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to
take this action appears to the court inconsistent with substantial justice.
Assuming that the court erred by not holding a review hearing, the error was harmless.
Testimony regarding Bushong was presented at the termination hearing and, in its order
terminating respondents’ parental rights, the trial court concluded that it was not in the child’s best
interests to be placed with Bushong. Thus, to the extent respondent-father argues he was
prejudiced because placement with Bushong would have weighed against termination, he has not
established that the trial court would have ordered placement with Bushong had a review hearing
been held.
Respondent-father also does not challenge the trial court’s finding that it was not in the
child’s best interests to be placed with Bushong. We agree that some of the trial court’s findings
regarding Bushong are clearly erroneous. The trial court stated that Bushong did not offer long-
term placement and did not have an alternate caregiver because her daughter did not want anything
to do with the child, but Barrios testified that Bushong was willing to provide permanent care and
Bushong testified that her other daughter was willing to help with the child. Nonetheless, there
was evidence that Bushong was 62 years old, she did not have a bond with the child, and some of
her visits with the child did not go well. The foster parents also reported that the child did not
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want to go to visits and sometimes returned from visits with Bushong with a dirty diaper. In
contrast, the child had been with her foster parents since she was released from the hospital, she
looked to them for comfort, and she is “very connected” to her foster siblings. The trial court did
not clearly err by finding that placement with Bushong was not in the child’s best interests.
B. STATUTORY GROUNDS FOR TERMINATION
Respondent-father argues that petitioner failed to establish any statutory grounds for
termination of his parental rights by clear and convincing evidence. We disagree.
“To terminate parental rights, a 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 Brown/Kindle/Muhammad, 305 Mich App 623, 635; 853 NW2d 459 (2014) (quotation marks
and citation omitted). “This Court reviews for clear error the trial court’s factual findings and
ultimate determinations on the statutory grounds for termination.” In re White, 303 Mich App at
709-710 (citations omitted). “A reviewing court must defer to the special ability of the trial court
to judge the credibility of witnesses.” In re LaFrance, 306 Mich App 713, 723; 858 NW2d 143(2014).
Respondent-father acknowledges that his rights were terminated pursuant to MCL
712A.19b(3)(a)(ii), (c)(i), (c)(ii), (g), (h), and (j), which provide for termination under the
following circumstances:
(a) The child has been deserted under either of the following circumstances:
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(ii) The child’s parent has deserted the child for 91 or more days and has
not sought custody of the child during that period.
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(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.
* * *
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(g) The 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.
(h) The parent is imprisoned for such a period that the child will be deprived
of a normal home for a period exceeding 2 years, and the parent has not provided
for the child’s proper care and custody, 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.
* * *
(j) There 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.
Respondent-father only quotes the statutory language for the first three grounds and does
not specifically analyze any of the grounds. He appears to address MCL 712A.19b(3)(g) and (h)
by arguing that the trial court ignored his plan to have the child placed with Bushong, it is unclear
if and for how long he will go to prison, and he has housing and the ability to quickly obtain a job.
He also claims that until a review hearing of the FCRB’s decision is held, there are no grounds to
conclude that his plan for the child is insufficient.
Because only one statutory ground for termination need be established, In re Olive/Metts
Minors, 297 Mich App at 41, and respondent-father fails to address several of the grounds, he is
not entitled to relief. When a party fails to address one or more of multiple statutory grounds found
by a court, this Court can assume that the trial court did not clearly err by finding clear and
convincing evidence to support the unchallenged statutory grounds. In re JS & SM, 231 Mich App
92, 98-99; 585 NW2d 326 (1998), overruled in part on other grounds by In re Trejo, 462 Mich
341, 353 n 10; 612 NW2d 407 (2000).
C. BEST INTERESTS
Respondent-father contends that the trial court erred by terminating his parental rights
because the trial court failed to consider that it was in the child’s best interests to be placed with a
relative. We disagree.
Respondent-father’s argument relies on several factually incorrect statements. First, there
was not a “Non-Respondent Parent” in this case because both parents were respondents.
Respondent-father also incorrectly refers to his “son,” and, regardless, he did not have a bond with
the child because he had never met her or spoken to her. Moreover, the trial court never found
that respondent-father would not comply with services and he inaccurately refers to his
“cooperat[ion] with authorities in the child abuse case investigation.”
To the extent that respondent-father is arguing that the trial court erred by failing to
consider that it was in the child’s best interests to be placed with Bushong, his argument still fails.
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Because the child was not placed with Bushong, the trial court was not required to consider relative
placement as a factor. And for the reasons discussed, the trial court did not clearly err by finding
that placement with Bushong was not in the child’s best interests. In addition, the failure to hold
a review hearing was harmless error.
Further, considering the best-interest factors, the trial court did not clearly err. There was
no evidence that respondent-father had a bond with the child, given that respondent-father had
been incarcerated the child’s entire life. Respondent-father did complete the services that were
available to him in prison, but the child was not likely to be returned to him soon because of his
additional convictions, so he was unable to provide permanency and stability. As noted earlier,
the child was doing well in foster care and the foster parents were willing to adopt her. The trial
court did not clearly err by finding that termination of respondent-father’s parental rights was in
the child’s best interests.
D. DUE PROCESS
Finally, respondent-father contends that termination of his parental rights was
unconstitutional because there were less restrictive means of promoting the child’s welfare, i.e.,
granting the “Non-Respondent Parent” custody of the child. We disagree.
Respondent-father did not argue in the trial court that he was denied due process because
the child should have been placed with the “Non-Respondent Parent.” Therefore, this issue is
unpreserved. See Glasker-Davis v Auvenshine, 333 Mich App 222, 227; 964 NW2d 809 (2020).
“Generally, whether child protective proceedings complied with a respondent’s substantive and
procedural due process rights is a question of law that this Court reviews de novo. However,
because the issue presented is an unpreserved claim of constitutional error, this Court will review
for plain error affecting substantial rights.” In re TK, 306 Mich App 698, 703; 859 NW2d 208(2014) (citations omitted).
Again, respondent-father’s argument in support of this issue is factually incorrect. There
was no “Non-Respondent Parent,” the child was placed in a foster home, and respondent-father
was not having visits with the child. To the extent respondent-father might be referring to
Bushong, she is not a parent, the child was not placed with her, and she did not seek a “custody
order.” As discussed earlier, the trial court agreed with the FCRB that placement with Bushong
was not in the child’s best interests. Accordingly, respondent-father fails to establish a plain error
affecting his substantial rights.
Affirmed.
/s/ Kathleen Jansen
/s/ Mark J. Cavanagh
/s/ Michael F. Gadola
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