in Re burke/crosby Minors

STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
In re BURKE/CROSBY, Minors. June 7, 2018
No. 341391
Wayne Circuit Court
Family Division
LC No. 15-519130-NA
In re K. D. CROSBY, JR., Minor. No. 341734
Wayne Circuit Court
Family Division
LC No. 15-519130-NA
Before: SERVITTO, P.J., and GLEICHER and STEPHENS, JJ.
PER CURIAM.
The circuit court terminated respondent-mother’s parental rights to her two young
children, and respondent-father’s rights to their shared son, following 33 months of services (and
an additional year of Child Protective Services assistance before court intervention). Despite this
assistance, mother completely failed to rectify the condition that led to adjudication—her severe,
untreated mental illness—and therefore would not be able to provide proper care and custody in
a safe home within a reasonable time. While father completed services and worked hard to
financially support his son, he never secured a home into which he could safely bring his son,
failed to attend his son’s therapeutic services to become educated about the child’s special needs,
and attended only half of all available parenting time sessions. Although the Department of
Health and Human Services did not always fulfill its duties to the utmost, on this record we
discern no error in the termination decisions. We affirm.
I. FACTUAL BACKGROUND
Mother gave birth to the parties’ son, KC, on January 11, 2012. In March 2014, Child
Protective Services (CPS) intervened with the family. Mother was incarcerated and left KC with
her mother, who was unwilling to care for the toddler. CPS placed KC with father. Mother
spent three months in jail and then approximately one week in a mental institution. Upon
mother’s release, she appeared at father’s home while he was at work. KC’s babysitter released
the child to mother without father’s consent.
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On June 11, 2014, police were summoned to mother’s home because KC was found
wandering the street alone. CPS allowed KC to remain in mother’s care with in-home assistance
from Family’s First. Mother completed these preventative services on September 16, 2014.
On February 26, 2015, CPS received another complaint after KC was again found
unsupervised. When the police located mother, she was incoherent and wandering outside her
apartment complex without a coat or shoes. The following day, CPS removed KC from mother’s
care, placed him with non-relatives, and filed a petition seeking jurisdiction over the child. The
Department of Health and Human Services (DHHS) considered father for placement but he was
living with relatives and had neither room nor a bed for the child.
A month later, mother gave birth to a daughter, NB. After the birth, mother was
incoherent and unaware of her surroundings. Hospital staff secured a psychiatric consult and
CPS took NB into protective custody. The infant was placed in non-relative care separate from
her brother. Mother went immediately into psychiatric care after her maternity ward release and
was eventually diagnosed with schizoaffective disorder, mood disorder, and delirium confusion.
She was prescribed antipsychotic medication.
In the months that followed, mother was in and out of psychiatric institutions. The court
ordered the DHHS to step up its services to her, but the caseworker repeatedly failed in this
regard. Eventually, the children’s GAL requested a show cause, the court fined the agency
$1,000 and continued the proceedings for nearly another year. Thereafter, the probate court
appointed a guardian for mother and the DHHS assigned a parent partner. However, mother
declined to stay in contact with either her guardian or parent partner and went missing for
months at a time. Mother refused to take her psychotropic medication, relying instead on
marijuana. The DHHS made 10 referrals for parenting classes, seven for therapy, six for
substance abuse treatment, and two for drug screens. Mother barely participated, completed only
her psychiatric and psychological evaluations, and eventually stopped visiting her children.
Father did attend counseling and parenting classes. He worked seven days a week for a
security company, paying down a child support arrearage and other debts. Father’s main
obstacle was his lack of suitable housing. During the 33-month proceedings, father lived in six
different places. By the time of the termination hearing, father was living in a home with an
unsecured handgun and no food to be found. Father promised to remedy those conditions.
Because of father’s hectic work schedule, he attended only 87 of 156 available parenting
time sessions. In the beginning, father bonded well with KC and he earned unsupervised
parenting time in the community. However, toward the end of the proceedings, KC started full-
day school and father, who worked afternoons, went four months without seeing his son. KC
told his foster father that he was his “real dad” and told his therapist that father “did not want”
him.
Moreover, during the child protective proceedings, KC was diagnosed with fetal alcohol
syndrome, post-traumatic stress disorder, attention deficit hyperactivity disorder, and
oppositional defiant disorder. He was developmentally and academically delayed. KC’s
psychiatrist recommended medication. Father, however, refused to sign the required paperwork
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to begin this treatment. Despite that father declined to attend any of KC’s myriad appointments,
father insisted that he observed no problems with his child requiring medication.
Based on this evidence, the circuit court terminated mother’s parental rights to both
children pursuant to MCL 712A.19b(3)(c)(i), (g), and (j), and father’s parental rights to KC
pursuant to MCL 712A.19b(3)(g) and (j).
II. REASONABLE EFFORTS
Both respondents argue that the DHHS made insufficient efforts to reunite the family.
We review for clear error a trial court’s determination that reasonable efforts have been made. In
re Fried, 266 Mich. App. 535, 542-543; 702 NW2d 192 (2005). Before a court may contemplate
termination of a parent’s rights, the petitioner must make reasonable efforts to reunite the family.
MCL 712A.19a(2). “The adequacy of the petitioner’s efforts to provide services may bear on
whether there is sufficient evidence to terminate a parent’s rights. In re Rood, 483 Mich. 73, 89;
763 NW2d 587 (2009). However, a respondent also has a responsibility to participate in the
services offered. In re Frey, 297 Mich. App. 242, 248; 824 NW2d 569 (2012).
Mother contends that the DHHS should have provided more intensive services given her
severe mental illness. In In re Hicks/Brown, 500 Mich. 79; 893 NW2d 637 (2017), our Supreme
Court considered whether the DHHS made reasonable efforts to reunify an intellectually disabled
parent with her children. The Court considered obligations arising under both the Americans
with Disabilities Act (ADA), 42 USC 12101 et seq., and the Michigan Probate Code, MCL
712A.18f(3)(d). Under the Probate Code, “the [DHHS] has an affirmative duty to make
reasonable efforts to reunify a family before seeking termination of parental rights.”
Hicks/Brown, 500 Mich. at 85. The ADA requires that “no qualified individual with a disability
shall, by reason of such disability, be excluded from participation in or be denied the benefits of
the services, programs, or activities of a public entity, or be subjected to discrimination by any
such entity.” Id. at 86 (citation omitted). The Court held that the DHHS neglects its duty under
the ADA to reasonably accommodate a disability when it fails to implement reasonable
modifications to services or programs offered to a disabled parent. Id. Similarly, the Court
stated that “efforts at reunification cannot be reasonable under the Probate Code if the [DHHS]
has failed to modify its standard procedures in ways that are reasonably necessary to
accommodate a disability under the ADA.” Id.
In the beginning of these proceedings, the DHHS did not make reasonable efforts to
accommodate mother’s disability so she could work toward reunification with her children.
However, this shortfall was remedied by the court. Mother was given another year of services.
At the court’s prompting, mother was appointed a guardian and assigned a parent partner to help
her through the service plan. But mother insisted that she did not need to take psychotropic
medication to control her schizoaffective disorder. She ran off to Colorado to become an Uber
driver. When mother returned, she lived in a care facility but then moved in with her mother
against her doctor’s advice. The guardian and parent partner tried to work with mother, but
mother would not reciprocate. And despite numerous service referrals, mother was completely
noncompliant. There was nothing more the DHHS could do to promote mother’s success.
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Father contends that the DHHS should have provided additional services to help him find
housing. The record shows, however, that the DHHS actually provided adequate services in this
regard. The caseworker provided referrals and housing lists, and sent recommendations on
father’s behalf to the housing commissions. As father’s earnings increased, his income became
too high to qualify for low-income housing. Further, father’s poor credit history was a roadblock
to obtaining housing. Father failed to substantiate any of his efforts to follow up on the leads
provided by the caseworker. Accordingly, we discern no ground for relief.
III. STATUTORY GROUNDS
Both respondents argue that the circuit court erred in finding statutory grounds to
terminate their parental rights. Pursuant to MCL 712A.19b(3), a circuit court “may terminate a
parent’s parental rights to a child if the court finds, by clear and convincing evidence” that at
least one statutory ground has been proven by the DHHS. MCR 3.977(A)(3); In re Trejo, 462
Mich. 341, 350; 612 NW2d 407 (2000). We review a circuit court’s factual finding that a
statutory termination ground has been established for clear error. Rood, 483 Mich. at 90-91. “A
finding of fact is clearly erroneous if the reviewing court has a definite and firm conviction that a
mistake has been committed, giving due regard to the trial court’s special opportunity to observe
the witnesses.” In re Moss, 301 Mich. App. 76, 80; 836 NW2d 182 (2013) (quotation marks and
citation omitted). “Clear error signifies a decision that strikes us as more than just maybe or
probably wrong.” In re Williams, 286 Mich. App. 253, 271; 779 NW2d 286 (2009).
In terminating mother’s parental rights to KC and NB, the court cited MCL
712A.19b(3)(c)(i), (g), and (j), which provide:
(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.
* * *
(g) The parent, without regard to intent, 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.
* * *
(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.
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The court relied only on factors (g) and (j) when terminating father’s rights.
Termination of mother’s rights was supportable under all cited factors. The children
were brought into care because mother’s severe mental illness. Her failure to treat her condition
rendered her unable to provide proper care and custody for her children and to keep them safe.
Throughout the 33-month proceedings, mother insisted that she did not need to take psychotropic
medication to control her mental illness. Yet mother was repeatedly hospitalized in psychiatric
institutions. She continued to make rash spending decisions and travelled to Colorado with a
boyfriend in the hopes of becoming an Uber driver, only to be abandoned. Even 33 months later,
mother asserted that she could control her illness without medication or counseling.
Accordingly, mother did not rectify the conditions that led to adjudication and would not be able
to do so within a reasonable time. Given mother’s denial of the reality of her condition, the
record also supports that she would be unable to provide proper care or custody within a
reasonable time and that the children faced a high likelihood of harm if returned to her care.
The record also supports the termination of father’s parental rights. The DHHS
consistently cited housing as the main barrier to KC’s reunification with father. To that end, the
caseworker provided father housing referrals and recommendations. Despite being gainfully
employed, earning enough that he did not qualify for low-income housing, father was still unable
to secure suitable housing. The court did not base its termination decision on father’s inability to
secure suitable housing, however. Instead, the court noted that although father participated in
reunification services, he did not show adequate benefit.
Father did not take advantage of the parenting time granted to him. He frequently told
the caseworker that he missed visits because of his work schedule. Of the 156 visits offered,
father attended only 87. The DHHS offered father extended unsupervised parenting time in the
community and even overnight visits, but father never exercised those rights. Then, between
August 21and December 4, 2017, father did not visit KC at all.
Father also failed to participate in KC’s psychiatric and therapy appointments. KC was
diagnosed with fetal alcohol syndrome, PTSD, ADHD, and ODD. He demonstrated aggressive
behaviors, did not get along with his peers, and disrupted the classroom. KC needed a lot of
attention and redirection and would require long-term educational and therapeutic services. The
caseworker frequently impressed upon father the importance of attending KC’s treatment so that
he could learn how to respond to KC’s behavioral issues. Father, however, did not make time to
participate in these appointments.
KC’s psychiatrist recommended that KC be administered medication, but father would
not consent to this treatment. He dismissed KC’s behavioral issues as a product of being
separated from his father. Based on questioning by the referee at the termination hearing, it was
clear that father did not accept that his child had a psychiatric diagnosis and that this diagnosis
required treatment. Indeed, it was abundantly clear that father would not be an advocate for his
son and seek the medical treatment he will require. Given this evidence, the court did not clearly
err in finding that father would be unable to provide proper care and custody and to safely parent
his special needs child within a reasonable time.
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IV. BEST INTERESTS
Respondents argue that the circuit court clearly erred in finding that termination of their
parental rights was in the children’s 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, 297 Mich. App. 35, 40; 823 NW2d 144 (2012),
citing MCL 712A.19b(5). “[W]hether termination of parental rights is in the best interests of the
child must be proven by a preponderance of the evidence.” Moss, 301 Mich. App. at 90. The
court should weigh all the evidence available to it in determining the child’s best interests.
Trejo, 462 Mich. at 356-357. Relevant factors include “the child’s bond to the parent, the
parent’s parenting ability, [and] the child’s need for permanency, stability, and finality. . . .”
Olive/Metts, 297 Mich. App. at 41-42 (citations omitted). “The trial court may also consider . . .
the parent’s compliance with his or her case service plan, the parent’s visitation history with the
child, [and] the children’s well-being while in care. . . .” In re White, 303 Mich. App. 701, 714;
846 NW2d 61 (2014). The advantages of the child’s foster placement over placement with the
parent are a relevant consideration. In re Foster, 285 Mich. App. 630, 634-635; 776 NW2d 415
(2009). The court may also consider the likelihood that “the child could be returned to her
parent’s home within the foreseeable future, if at all.” Frey, 297 Mich. App. at 248-249. At this
stage in the proceedings, the best interests of the child in having “a normal family home is
superior to any interest the parent has.” Moss, 301 Mich. App. at 89.
Termination of mother’s parental rights was clearly in the best interests of her children.
Mother had no bond with young NB. During visits, mother could not handle the baby alone and
often asked the caseworker or foster mother to intercede. NB has been in the same foster home
since birth and her foster parents wish to adopt. Given mother’s mental health issues and failure
to participate in treatment, it is unlikely that NB could ever be returned to her care.
Mother did initially share a strong bond with KC. As time wore on, however, mother’s
paranoia and scattered mood interfered with that relationship. At one visit, mother scared KC by
strip searching him. Ultimately, mother stopped attending visits for long periods, eroding KC’s
memory of his parent. KC’s foster parents also wished to adopt and had shown success in
handling the child’s special needs. Under these circumstances, we discern no error in the court’s
termination of mother’s parental rights.
The record shows that father also initially shared a strong bond with KC. The caseworker
noted, however, that KC viewed father as a playmate rather than a parent figure. KC told his
foster father that he was his “real dad.” Most importantly, father refused to believe that his son
had special needs. Even before father stopped attending visits, then three-year-old KC was
operating at the level of a 19-month-old child. But father declared that KC was developmentally
on track and showed no signs of impairment. Given father’s denial, it is unlikely that he would
appropriately address KC’s needs. As noted, KC’s needs were being adequately addressed in his
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foster home, a home into which KC can be adopted. On this record, termination of father’s
parental rights was in KC’s best interests.
We affirm.
/s/ Deborah A. Servitto
/s/ Elizabeth L. Gleicher
/s/ Cynthia Diane Stephens
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