in Re K M Houser Minor

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UNPUBLISHED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 K. M. HOUSER, Minor. March 26, 2019
Nos. 344698; 344712
Genesee Circuit Court
Family Division
LC No. 16-133554-NA
Before: SHAPIRO, P.J., and BECKERING and M. J. KELLY, JJ.
PER CURIAM.
In Docket No. 344698, respondent-father appeals as of right the trial court’s order
terminating his parental rights to the minor child, KMH, under MCL 712A.19b(3)(c)(i), (g), and
(j). In Docket No. 344712, respondent-mother appeals as of right the same order terminating her
parental rights to KMH under MCL 712A.19b(3)(c)(i), (c)(ii), (g), and (j). Because we conclude
that the trial court did not clearly err by terminating respondents’ parental rights, we affirm.
I. BASIC FACTS
The Department of Health and Human Services (DHHS) filed a petition seeking
termination of respondents’ parental rights to KMH. Respondents pleaded to jurisdiction with
the understanding that the DHHS would change the goal from termination to reunification. At
that time, respondent-father admitted that his ability to parent his child was affected because (1)
he lacked suitable housing, (2) he had mental-health issues that were not being treated, and (3) he
did not have a source of income to support KMH. Respondent mother similarly admitted that
her ability to parent KMH was affected because (1) she lacked suitable housing, (2) she has
depression that was not being treated, and (3) she has a “learning disability.” Thereafter, on
January 10, 2017, the court entered an order taking jurisdiction of KMH. Further, the court
ordered that respondents be provided with accommodations pursuant to the Americans with
Disabilities Act (ADA), 42 USC 12101 et seq., and that they receive a referral to the Genesee
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Circuit Court Infant/Toddler Treatment Court, also known as “Baby Court.”1 In May 2017,
respondents were admitted into Baby Court.
Respondents were accepted into Baby Court. They were provided with reunification
services including psychological evaluations, counseling, parenting classes, budgeting and
housing assistance, and parenting time. Although respondents made some progress and
completed some services, problems with suitable housing persisted throughout the case, and
there continued to be reports that respondents’ “bickering” and fighting during parenting time
was having an adverse effect on KMH. Accordingly, the DHHS submitted a supplemental
petition seeking termination of respondents’ parental rights. Following a termination hearing,
the court found grounds to terminate respondents’ parental rights and found that termination of
their parental rights was in KMH’s best interests.
This appeal follows.
1
Erin Werth, the program coordinator of the Genesee County Baby Court program, testified
about the nature of Baby Court. She explained:
Baby court is a problem solving court for families with infants and
toddlers in foster care. We follow and utilize the infant mental health model in
order to provide therapeutic support. The infant mental health model requires that
we have an infant mental health endorsed therapist. We have a therapist assigned
to every case. They provide therapeutic support during visitation weekly as well
as weekly individual parenting sessions where they meet with the parents without
the child to discuss different barriers to parenting, their focus is on the attachment
relationship and reducing the negative outcomes that infants and toddlers usually
face as a result of being in foster care. We also have a specialized parenting class.
We use the—an adaption of the mom power curriculum which is evidence based
and that focuses on attachment and development and so we—and that is run by a
master level therapist as well, as well as a playgroup. The playgroup is for
participants who are in the parenting class so that they can, with therapeutic
support and the support of their peers, practice the skills that they’re learning in
parenting class. So it’s—it’s usually, it’s they go to playgroup and then they go to
parenting class every other week.
Werth added that in baby court “reunification is the goal and so we provide—we also do monthly
team meetings so we develop a team that has infant mental health, DHHS, any private agency
worker that we may have in the family and sometimes some family support or community
support depending on a case by case basis.” She stated at the monthly meetings, they discuss the
barriers to reunification and discuss what they are going to do in order to overcome the barriers.
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II. STATUTORY GROUNDS
A. STANDARD OF REVIEW
Respondents argue that the trial court erred by finding statutory grounds to terminate
their parental rights. Whether the trial court properly found by clear and convincing evidence
that a statutory ground for termination has been proven is reviewed for clear error. In re Trejo,
462 Mich. 341, 356-357; 612 NW2d 407 (2000); MCR 3.977(K). “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 BZ, 264 Mich. App. 286, 296-297; 690 NW2d 505 (2004).
B. ANALYSIS
The court terminated both respondents’ parental rights under MCL 712A.19b(3)(c)(i),
which provides that a court may terminate a respondent’s parental rights if there is 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.
Here, it is undisputed that more than 182 days elapsed since the initial dispositional order was
entered. Additionally, based on our review of the record, it is clear that the conditions leading to
adjudication for respondent-mother were inadequate housing, cognitive limitations, and
untreated depression, whereas the conditions leading to adjudication for respondent-father
included inadequate housing, lack of income, and untreated mental-health concerns.
Additionally, there were concerns regarding respondent-father’s ability to maintain a legal
income.
At the time of the termination hearing, these issues were not rectified. Erin Werth, the
program coordinator for the Genesee County Baby Court, testified that housing was an
“ongoing” issue for respondents. She explained that, throughout the pendency of the
proceedings, respondents lived in a mobile home that was not safe or suitable for KMH. By way
of example, she explained that respondents’ trailer home lacked a refrigerator and had structural
concerns, such as a hole in the roof, holes in the walls, broken windows, and “some holes in the
floor.” With regard to the hole in the floor, she explained that it had been repaired with plywood
at one point, but there remained spots where, if stepped on, the floor would sag and it felt like a
person could fall right through. Werth elaborated that although the hole had extended to the
ground outside the trailer home, it took several months for respondents to fix it. Because of the
age of the trailer, respondents were unable to secure financial assistance to make needed repairs.
Werth added that the furnace in the home was broken at one point and that there were problems
with bugs.
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Additionally, because of issues with managing their finances, respondents had been
served with an eviction notice and their power had been shut off. Although respondents owned
their mobile home, it required upkeep and maintenance that they could not afford. The record
reflects that because respondents could not manage their money properly, they often ran out of
money shortly after being paid or receiving funds from Social Security disability. DHHS staff
had suggested repeatedly to respondents that they live in subsidized housing which would have
been more suitable for them, but respondents resisted these suggestions and ended up leasing an
apartment without informing DHHS staff first. Additionally, KMH’s maternal grandmother was
listed on the lease even though she was considered unsuitable for respondents to live with
because of her prior history with Child Protective Services (CPS). Werth was also concerned
that, given his record of inconsist employment, respondent-father would be unable to maintain
employment and provide an income to pay for respondents’ housing.
The parties’ mental-health issues also persisted. Dr. Harold S. Sommerschield diagnosed
respondent-father with depression and a personality disorder, and he recommended a psychiatric
evaluation and, potentially, medication. At the time of the termination hearing, respondent-
father was not consistently attending his therapy and was not consistently taking his prescribed
medication. Respondent-father continued to struggle with his anger management issues, and
respondent-mother reported feeling unsafe with him and separated from him on more than one
occasion. While the couple participated in marital counseling, they had difficulty applying what
they learned in their sessions to their interactions in real life. This behavior was extremely
detrimental to KMH, who would bang his head, rock, hide, and freeze when confronted with
respondents’ arguments during parenting time. While in the process of addressing his anger
management issues, respondent-father was observed punching a wall in his home. Furthermore,
the record reflects that to avoid similar outbursts, respondent-father would “shut down” and walk
away, which interfered with his ability to engage with respondent-mother and DHHS staff about
what steps needed to be taken to reunify with KMH. At the time of the hearing, respondent-
father was not employed, he had gone through at least two jobs during the lower court
proceedings, and he was selling plasma for extra money.
With regard to respondent-mother’s mental health, Dr. Sommerschield reported that she
had an “[e]xceptionally [l]ow range of intelligence,” and he opined that she “does not have a
good intellectual prognosis for parenting a child.” Dr. Sommerschield added that “[respondent-
mother] has a very poor prognosis for being able to independently parent a child and parent a
child in a safe manner.” He explained:
[respondent-mother] would have difficulty caring for herself. Therefore it would
not be surprising that she is so impaired in her ability to take care of a child. I do
not believe that there are any services available that could significantly improve
her prognosis for parenting.
Additionally, Rebecca Austin, a foster care worker with DHHS, testified that respondent-
mother’s cognitive delays impacted her ability to discern KMH’s basic and emotional needs and
respond to them. Accordingly, there was clear and convincing evidence to support the court’s
finding that the conditions leading to adjudication continued to exist and were not reasonably
likely to be rectified within a reasonable time given KMH’s age. Termination was proper under
MCL 712A.19b(3)(c)(i).
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Yet, respondent-father suggests that he and respondent-mother should have been given
more time to benefit from services given his mental-health issues and respondent-mother’s
cognitive limitations. With some exceptions not applicable in this case, “before seeking
termination of parental rights,” the DHHS “has an affirmative duty to make reasonable efforts to
reunify a family.” In re Hicks, 500 Mich. 79, 85; 893 NW2d 637 (2017). “As part of these
reasonable efforts, the [DHHS] must create a service plan outlining the steps that both it and the
parent will take to rectify the issues that led to court involvement and to achieve reunification.”
Id. at 85-86. Additionally, the DHHS is obligated by the ADA to reasonably accommodate a
parent’s disability before terminating his or her parental rights. Id. at 86.
In this case, respondents’ limitations were acknowledged early in the case and the trial
court cautioned that reasonable accommodations would have to be made in accord with the
requirements of the ADA. The court referred the case to Baby Court in order to provide
respondents with additional services. There were no objections as to the adequacy of the
services provided, and, on appeal, respondent-father only argues that more time should have
been provided.
There is no hard-and-fast rule with regard to how long services must be provided in order
for those services to be adequate. Respondents were provided with extensive reunification
services, including psychological and psychiatric mental health treatment, parenting classes,
regular team meetings with the DHHS staff and Baby Court staff, one-on-one support for
budgeting, help applying for subsidized housing and cash assistance, and regular reviews in the
trial court to assess their progress. The DHHS staff also assisted respondents with repairs to
their mobile home and provided necessary appliances, such as a refrigerator. There is no
evidence that respondents were denied any necessary service or that alternative services were
available that would have addressed respondents deficiencies in parenting and allowed them to
successfully reunite with KMH.
Finally, respondent-father has not directed this Court to any evidence on the record that
with additional, reasonable time he could have rectified the conditions leading to adjudication
within a reasonable time considering KMH’s age. Instead, Werth testified that even with ample
support services from the DHHS, including Baby Court services and one-on-one support, any
change that they experienced was “minimal if not extremely slow.” She added that children
form their primary attachments within the first 26 months of their life and, because KMH was
already a year and a half old, time was running out for him to develop a safe and secure
attachment. She added that it was already obvious that his development was “compromised.”
Consequently, on this record, given respondent’s minimal, slow progress and KMH’s time-
sensitive developmental needs, providing more time to respondents in this case was not
required.2
2
Because “[o]nly one statutory ground for termination need be established,” In re Olive/Metts
minors, 297 Mich. App. 35, 41; 823 NW2d 144 (2012), we decline to address whether termination
was also proper under MCL 712A.19b(3)(c)(ii), (g), and (j).
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III. BEST INTERESTS
A. STANDARD OF REVIEW
Respondents argue that termination of their parental rights was not in KMH’s best
interests. We review the trial court’s decision regarding KMH’s best interests for clear error.
See In re Laster, 303 Mich. App. 485, 496; 845 NW2d 540 (2013).
B. ANALYSIS
Once a trial court decides that a statutory ground exists to warrant termination of parental
rights, the trial court must determine whether termination is in the best interests of the minor
child. MCL 712A.19b(5). While the focus is on the parent during the statutory-grounds stage,
once a parent has been determined to be unfit, the focus at the best-interest stage shifts to the
minor child. In re Moss, 301 Mich. App. 76, 88-89; 836 NW2d 182 (2013). Petitioner bears the
burden of establishing that termination of a respondent’s parental rights is in the child’s best
interests by a preponderance of the evidence. Id. at 90. “To determine whether termination of
parental rights is in a child’s best interests, the court should consider a wide variety of factors
that 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.”
In re White, 303 Mich. App. 701, 713; 846 NW2d 61 (2014) (quotation marks and citation
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.” Id. at 714.
Here, the record reflects that although respondents both love KMH, he was not securely
bonded with them. There was evidence, however, that he had a secure attachment with his foster
parents. Further, Werth testified that KMH was in need of permanence and stability, especially
considering that his “window” for forming secure attachments was closing. There was also
evidence that, during parenting time, KMH would exhibit negative behaviors associated with a
traumatized child such as head-banging, rocking, and disassociating. In particular, he would also
avoid respondent-father during parenting time sessions. Werth testified that respondents’
repeated and consistent acrimony during parenting time jeopardized KMH’s safety because they
would not properly supervise him while they were arguing. She recounted one incident where
respondent-mother placed KMH on a table and then, because she was arguing with respondent-
father, he fell off the table. Further, respondent-father still struggled with managing his anger,
and his compliance with his mental health treatment and medication was inconsistent. Both
respondents, while attending mental health treatment individually and marital counseling as a
couple, struggled with implementing what they learned in real-life situations with KMH and
were unable to tend to and meet KMH’s basic and emotional needs. According to Dr.
Sommerschield, respondent-mother in particular simply did not have the capability to parent
KMH. The trial court’s ruling reflects that it considered KMH’s limited and tenuous bond to
respondents, his need for permanency and stability and the advantages that remaining in the
foster home would provide him, the possibility of adoption, and respondents’ limited parenting
ability. Because these factors weighed in favor of termination of respondents’ parental rights,
zGATranscriptNewthe court’s decision is not clearly erroneous.
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Affirmed.
/s/ Douglas B. Shapiro
/s/ Jane M. Beckering
/s/ Michael J. Kelly
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