in Re rogers/robinson Minors

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UNPUBLISHED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 ROGERS/ROBINSON, Minors. May 7, 2019
No. 344755
Oakland Circuit Court
Family Division
LC No. 15-833368-NA
Before: BOONSTRA, P.J., and METER and FORT HOOD, JJ.
PER CURIAM.
Respondent appeals by right the trial court’s order terminating her parental rights to her
minor children, JSR, JVR, and JBR, under MCL 712A.19b(3)(g) (failure to provide proper care
and custody) and (j) (children are reasonably likely to be harmed if returned to the parent’s
home).1 We affirm.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
This case arises out of respondent’s long struggle with alcohol abuse and its effect on her
children. In 2015, petitioner, the Department of Health and Human Services (DHHS), filed a
petition to remove JSR and JVR from respondent’s care after a June incident in which
respondent had left JVR, then two years old, at home unsupervised while she drove to JSR’s
school to pick her up. School officials observed respondent’s behavior and believed that she was
too intoxicated to drive; an employee of the school drove respondent and JSR home. The police
were contacted; respondent was ultimately taken to the hospital after on-the-scene testing
revealed that respondent’s blood alcohol concentration (BAC) was .307, over three times the
legal limit for drunk driving. The following month, a DHHS worker visited respondent’s home
and believed that respondent was intoxicated while caring for the children. Respondent was
again hospitalized after testing revealed a BAC of .5. In December 2015, after respondent
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The court had previously terminated the parental rights of the father of JSR and JVR.
Proceedings regarding JBR’s father continued after respondent’s parental rights were terminated.
Neither father is a party to this appeal.
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completed a substance abuse treatment program and began attending weekly substance abuse
support groups and therapy, the trial court returned the children to respondent and closed the
case.
In 2017, petitioner filed a petition requesting the removal of JSR, JVR, and newborn
JBR, and the termination of respondent’s parental rights to the children. The petition alleged that
in September 2017, respondent had failed to pick JSR up from a bus stop and did not retrieve her
for several hours even after learning that JSR had been taken to the police station. Further, the
petition alleged that in October 2017, respondent was transporting JVR and JBR in her car when
she was stopped by Clarkston police. Testing revealed her BAC to be .253.
Respondent pleaded no contest to the allegations in the petition with regard to the
exercise of the court’s jurisdiction and the existence of statutory grounds for termination under
MCL 712A.19b(3)(g) and (j). After hearing testimony from Sarah Perry, a Child Protective
Services (CPS) worker, the trial court determined that statutory grounds existed to exercise its
jurisdiction and to terminate respondent’s parental rights.
The trial court then held a best-interest hearing. Respondent and her evaluating
psychologist, Sylvie Bourget, testified to respondent’s mental health and alcohol abuse history.
When respondent was 18 years old, she was diagnosed with depression. She testified that she
received therapy off and on through college. Respondent graduated from the University of
Michigan and then worked for several companies in sales.
Respondent testified that, by the time of the best-interest hearing, she had struggled with
alcohol abuse for about 10 years. When she was about 30 years old, in 2008, she was arrested
for operating while impaired (OWI). Around the same time, she had a nervous breakdown and
was hospitalized in a long-term facility for mental health issues and alcohol abuse. She was then
released to adult foster care. Respondent’s diagnosis at that time was major depressive disorder.
When she felt depressed, she did not have much energy, she had trouble getting out of bed, and it
was hard for her to work. She was in therapy “a couple times” for the major depressive disorder
and was prescribed anti-depressant medication. Respondent admitted that she only attended
therapy and took medication care when she was “super depressed.”
In 2010, respondent was approved for Social Security Disability payments. In 2011, she
received a secondary degree in television, video, and film. She worked in programming until she
gave birth to JSR in 2012, but did not work thereafter. She did not take mental health
medications while she was pregnant or breastfeeding. Respondent testified that she was very
depressed after the birth of her first child and had marital problems; nonetheless, she quickly
again became pregnant with JVR.
Respondent testified that she did not drink alcohol between 2010 and 2015. On the first
day of the best-interest hearing, respondent testified that she chose not to resume taking
medications in 2014 (after she ceased breastfeeding JVR) because she was “feeling okay.” She
admitted that she already knew from the past that when she was off her medication, she did not
function—she would feel “really sad . . . have racing thoughts . . . [she] can’t really focus,” and
she has “really, really bad anxiety.” Respondent admitted that it would be very difficult to parent
in those situations. On the second day of the best-interest hearing, respondent testified that she
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had become “confused” during her testimony and that she actually did return to taking
medication for depression in 2014.
In 2015, respondent relapsed after her uncle died. When the children were removed in
2015, she received intensive substance abuse treatment. She also took medication and attended
Alcoholics Anonymous (AA) meetings once a week.
Respondent relapsed again in 2017 after a series of events, including a car accident in
April 2017, a pneumonia diagnosis, and the death of a family member. She was again arrested
for OWI in 2017. After the children were removed in November 2017, respondent admitted
herself to an inpatient mental health facility. Respondent was diagnosed with bipolar disorder,
obsessive compulsive disorder, and alcohol abuse. Reports from the facility indicated that she
was suicidal and psychotic during her stay, but respondent later denied being suicidal at that
time. Bourget testified that this denial was concerning, but noted that respondent was in
continuing treatment and not experiencing ongoing suicidal thoughts. Respondent readmitted
herself to the facility in January 2018, after running out of her medication and failing to meet
with a psychiatrist to obtain refills. After her release, she began participating in out-patient
medication management.
Respondent testified that her current treatment was distinguishable from any other
treatment she had ever received because it was focused on the duality of her problems with
bipolar disorder and alcohol abuse. She testified that she was receiving weekly therapy and was
seeing a psychiatrist monthly. She further testified that she now understands that she will be in
ongoing treatment for life. Respondent acknowledged that she would be on probation for the
OWI offense for two years. She was required to attend AA three times a week, to attend therapy,
and to participate in random testing as conditions of her probation.
Bourget opined that bipolar disorder is a “serious diagnosis” and that respondent has
“very significant mental health issues” that are exacerbated by alcohol abuse. By the time of the
best-interest hearing, she had been sober for a few months. Bourget testified that it is impossible
to know whether difficulties in life would cause respondent to relapse again. Bourget could not
speculate about how long it would take before respondent could maintain sobriety consistently.
Bourget declined to state on direct examination when it would be safe for the children to be
returned to respondent’s care, but opined on cross-examination that respondent would need at
least six months’ sobriety. Moreover, if the children were returned to respondent’s care and
respondent relapsed, the children would be exposed to a risk of harm.
Bourget testified that an alcoholic parent can cause risks for a child, including emotional
repercussions, the possibility of neglect and abuse, poor supervision, and endangerment. She
further testified that respondent was then maintaining sobriety under court-ordered probation, but
that there was no information—other than her self-reported motivation—that she would be sober
absent a court order. Bourget testified that she nevertheless saw potential in respondent and that,
with more time, there was a possibility for progress and success.
Bourget ultimately opined that the termination of respondent’s parental rights would not
be in the children’s best interests at that time. She considered respondent’s bond with the
children, their ages, the fact that the first removal period was short, respondent’s motivation,
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respondent’s decision to seek treatment, and her almost six-year sobriety before relapsing in
2015. Although Bourget did not know how respondent’s mental health issues were addressed
during the 2015 case, she thought that, in the 2017 case, there was a better understanding of the
relationship between respondent’s alcohol abuse and her mental health issues, which contributed
to her opinion that termination was premature. Bourget acknowledged that respondent knew that
she needed help between 2015 and 2017, but only sought help when her children were removed.
Respondent testified that she has a very strong bond with her children because of all that
they have been through together. She acknowledged that her children “may have” seen her
drunk, but indicated that she mostly drank when they were asleep. She testified that she was not
thinking clearly when she tried to pick her daughter up from school when she was drunk.
At the time of the best-interest hearing, respondent did not have permanent housing and
was residing in transitional housing. She testified that she was working with the Community
Housing Network to find housing. Respondent received Social Security disability payments for
her mental health issues in the amount of $1,286 per month. She had received child support in
the past, but was not currently receiving any. She had not been employed since her children
were born. She was enrolled in Michigan Rehabilitative Services’ Ticket to Work program,
which provided employment services and training; respondent testified that she hoped to obtain
at least a part-time job (Tr II, p 34).
Perry testified and opined that the children would be at risk if they were returned to
respondent. She was concerned about the potential for relapse, given the past occurrences of
relapse, and the short time between the 2015 reunification and the last relapse. Perry
acknowledged that respondent and her children shared a significant bond, but nevertheless felt
that termination would be necessary for the children to achieve stability. Perry testified that JSR
and JVR were placed with their maternal great-aunt, who is very involved in their lives. The
foster care worker, Dewan Roy Adams, similarly testified that JSR and JVR were doing
“awesome” in their great-aunt’s home, and that their great-aunt planned to adopt them. Perry
testified that she believed that the great-aunt would facilitate visitation with JBR, who was then
placed with his maternal cousin. Perry further testified that, if respondent’s rights were not
terminated, she did not know how much time would need to pass before she would be
comfortable having the children returned.
Stephanie Trayer-Griffith, respondent’s parent partner, testified that she had provided
respondent with resources for housing and moral support. She testified that respondent appeared
to have taken responsibility for her actions and that she is “very determined.” However, Trayer-
Griffith could not opine about whether respondent would remain sober, or if she was “well on
her way to sobriety.”
Latrece Bailey, respondent’s parenting time case manager, testified that a bond existed
between respondent and all three children. She had no major concerns over respondent’s ability
to parent as expressed through supervised parenting time visits.
The children’s lawyer guardian ad litem (L-GAL) testified and opined that termination
was in the children’s best interests. The L-GAL opined that, if returned to respondent’s care, the
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children would be at substantial risk of harm from a relapse, especially given respondent’s
history of driving her car and transporting the children while extremely intoxicated.
After the best-interest hearing, the trial court issued a written opinion holding that the
termination of respondent’s parental rights was in the children’s best interests. The trial court
summarized respondent’s situation as follows:
The court notes the testimony that mother previously completed a parent agency
agreement with substance abuse treatment, following removal of the children for
substance abuse, and did not benefit from it. Additionally, significant evidence
exists to support the assertion that mother has received years of alcohol and
mental health treatments but-based on mother’s testimony-has voluntarily stopped
taking her medication and relapses when faced with life stressors. Mother is
presently in a monitored and controlled environment, at Grace Center of Hope,
and is essentially under court-ordered sobriety. Mother is unemployed, homeless,
and receiving approximately $1,200 each month in social security disability.
The trial court noted that respondent did have a bond with her children, and that their placement
with relatives was a factor that weighed against termination. Nonetheless, the trial court found
that respondent’s “continued relapses, lack of insight, and inability to maintain . . . stability and
sobriety outweighs this presumption.” The trial court noted that respondent was living in a
controlled environment and that her sobriety was enforced by her probation, that respondent had
only addressed her addiction and mental health issues after her children were removed or while
on probation, and that there was no guarantee that respondent would not relapse when confronted
with the stress of life as a single mother to three children. The trial court also noted that JVR and
JBR had been subjected to respondent’s driving while intoxicated and that their lives had been
directly endangered by respondent’s conduct.
The trial court issued an order terminating respondent’s parental rights to all three
children. This appeal followed. Respondent’s sole claim on appeal is that the trial court erred by
concluding that the termination of her parental rights was in the children’s best interests.
II. STANDARD OF REVIEW
This Court reviews for clear error any findings regarding a child’s best interests.
MCR 3.977(K); In re Mason, 486 Mich. 142, 152; 782 NW2d 747 (2010). “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).
III. ANALYSIS
Respondent argues that the trial court erred by determining that the termination of her
parental rights was in the children’s best interests. We disagree.
Once a statutory ground for termination is established, the trial court shall order the
termination of parental rights if it finds that termination is in the child’s best interests.
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MCL 712A.19b(5). “[W]hether termination of parental rights is in the best interests of the child
must be proved by a preponderance of the evidence.” In re Moss, 301 Mich. App. 76, 90; 836
NW2d 182 (2013). The trial court should weigh all the evidence available to it in determining a
child’s best interests. In re White, 303 Mich. App. 701, 713; 846 NW2d 61 (2014). Factors
relevant to a determination of a child’s best interests include the child’s bond to the parent, the
parent’s compliance with his or her case service plan, the parent’s history of visitation with the
child, the child’s need for permanency, stability, and finality, the advantages of a foster home
over the parent’s home, and the possibility of adoption. Id. at 713-714. In addition, a child’s
placement with relatives is “an explicit factor to consider in determining whether termination
was in the children’s best interests.” Mason, 486 Mich. at 164, Olive/Metts, 297 Mich. App. at 41.
A preponderance of the evidence supports the trial court’s determination that termination
of respondent’s parental rights was in the children’s best interests. The trial court recognized
that respondent loves her children and shares a bond with them. During supervised parenting
time, respondent was attentive, engaged the children in conversations, played with them, and
showed affection. When the children were in respondent’s care, however, her parenting choices
placed the children at significant risk of death or physical harm. In 2015, respondent left two-
year-old JVR by herself while she drove—with a BAC of .307—and attempted to pick up JSR
from school. Less than two months later, respondent was discovered at home with the two girls
with a BAC of .5. Again in 2017, respondent drove with a BAC of .253 while JVR and the baby,
JBR, were in the car. Respondent was taken to the hospital and treated for excessive alcohol
ingestion on both of those instances. Respondent’s evaluating psychologist testified that
respondent knew that she needed help after her children were returned to her in 2017, and she did
not seek it. Instead, without support, respondent predictably relapsed, resulting in her arrest and
the children’s removal yet again. Respondent’s most recent relapse was evidence that she had
failed to benefit from the extensive services provided to her in the prior proceedings.
The trial court heard evidence that respondent is college-educated and has a work history
in sales and television programming, but had not worked since her oldest child was born in 2012,
although she received Social Security disability payments. Moreover, she was homeless at the
time of the best-interest hearing. Conversely, JSR and JVR were thriving in the home of their
great-aunt. Perry testified that JSR and JVR have stability and comfort with their great-aunt,
who is very involved in their lives. The great-aunt planned to adopt the girls, and Perry believed
that the great-aunt would facilitate visitation with JBR, who was placed separately with a
maternal cousin while his father was receiving reunification services.
Additionally, although respondent claims that the trial court did not give adequate weight
to fact that the children were placed with relatives, the court repeatedly acknowledged that the
children were placed with relatives, but it found that any presumption against termination of
respondent’s rights was outweighed by respondent’s “continued relapses, lack of insight, and
inability to maintain . . . stability and sobriety.” See Mason, 486 Mich. at 164, Olive/Metts, 297
Mich. App. at 41. Moreover, respondent’s repeated endangerment of her children’s lives when
she drove with them while intoxicated was a substantial factor that weighed in favor of
termination. It was not clear error for the trial court to prioritize the children’s needs for
stability, permanence, and safety. See In re Foster, 285 Mich. App. 630, 635; 776 NW2d 415
(2009).
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Respondent further argues that her likelihood of relapse was never quantified and that the
mere possibility of relapse should not have constituted a sufficient basis to conclude that
termination was in the children’s best interests. We do not disagree that it is impossible to
predict when or if an alcoholic will relapse. However, respondent, who was 40 years old, had for
more than 20 years abandoned treatments when she was feeling well. Over and over again, these
periods without medication, therapy, or substance abuse treatment would result in the negative
effects of her mental illness and alcoholism reasserting themselves. Respondent admitted that
her past relapses involved stressors, such as an accident or a death in the family. As the trial
court observed, “[a]s a single mother of three children . . . life’s stresses will continue to be both
present and prominent.”
The record established that respondent was making an effort at recovery at the time of the
best-interest hearing and had been sober for a few months. But Perry recalled that, in 2015,
respondent had also been “very focused” on her treatment; she nevertheless relapsed quickly
once her children were returned to her and the court terminated its jurisdiction. Again, during
that relapse, respondent drove with two of her children in the car while intoxicated with a BAC
more than three times the legal limit. Given respondent’s repeated cycles of illness, recovery,
and relapse, no one could estimate how much time respondent would need to obtain consistent
sobriety, and Perry did not know when she would be comfortable returning the children to
respondent. Based on this evidence, the trial court did not clearly err by finding that there was
no reasonable likelihood that respondent’s continued use of services would result in the stability
and permanence that the children needed. Mason, 486 Mich. at 152. The trial court did not
clearly err by finding that termination of respondent’s parental rights was in the children’s best
interests. Id.
Affirmed.
/s/ Mark T. Boonstra
/s/ Patrick M. Meter
/s/ Karen M. Fort Hood
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