in Re P J Buck 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UNPUBLISHED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 P.J. BUCK, Minor. September 12, 2019
No. 347983
St. Clair Circuit Court
Family Division
LC No. 16-000289-NA
Before: JANSEN, P.J., and CAMERON and TUKEL, JJ.
PER CURIAM.
Respondent appeals the trial court’s order terminating her parental rights to her minor son
pursuant to MCL 712A.19b(3)(c)(i) (conditions that led to adjudication continue to exist), (c)(ii)
(failure to rectify other conditions), (g) (failure to provide care and custody), and (j) (reasonable
likelihood that the child will be harmed if returned to parent). We affirm.
Respondent in this matter has an extended history of substance abuse, which continued
during her pregnancy with the minor child at issue in this appeal. When the minor child was
born in July 2016, he tested positive for opiates and methadone and exhibited withdrawal
symptoms. He required treatment for these symptoms and remained hospitalized for a period of
time. On August 18, 2016, petitioner filed a petition for removal of the minor child from
respondent’s custody and requested that the trial court assume jurisdiction over him. On that
same day, the trial court issued an ex parte order to take the minor child into temporary
protective custody, and the minor child was placed with a foster family once he was released
from the hospital.
After a combined adjudication and dispositional hearing on September 29, 2016, the trial
court authorized the petition, assumed jurisdiction over the minor child, held that the minor child
would remain a temporary ward of the state, and ordered respondent to participate in services.
Initially, respondent’s progress was poor. Specifically, her housing and employment were
unstable, she continued to test positive for illegal substances, she missed drug tests, and she
missed numerous parenting time visits. However, after petitioner indicated in May 2017 that it
intended to file a petition for termination of respondent’s parental rights, respondent entered an
inpatient program and began making progress toward recovery. Petitioner ultimately revoked
the termination petition because of respondent’s progress.
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After respondent completed the inpatient treatment program in June 2018 and made
progress with finding housing, she was permitted to have unsupervised visitation with the minor
child. It was reported that the visitations went well; and, on September 23, 2018, respondent had
her first unsupervised overnight visit with the minor child. However, at some point that evening,
one of respondent’s neighbors found the minor child standing at her door in only a t-shirt and
diaper. The minor child appeared to be upset. The neighbor tried to walk the minor child back
to respondent’s apartment, but he was crying uncontrollably and did not want to go back. Law
enforcement was contacted.
At 5:05 p.m. on September 23, 2018, Trooper Jarod Chiros arrived at respondent’s
apartment complex. After hearing screaming coming from respondent’s apartment, Trooper
Chiros entered through the unlocked door and found respondent standing naked in her apartment
with a blank look in her eyes. Respondent was alone in the apartment, had slurred speech, and
could not coherently answer Trooper Chiros’s questions. Although the minor child was not
present in the apartment, respondent tried to convince Trooper Chiros that the minor child was in
his crib and on the dining room floor. When asked what she had ingested, respondent told
Trooper Chiros that she was not under the influence of any substances. Trooper Chiros
contacted emergency medical services, and respondent was transported to the hospital. The
minor child was returned to his foster home.
Trooper Chiros conducted an investigation. Two of respondent’s neighbors reported to
him that they heard chanting coming from inside respondent’s apartment on September 22 and
September 23, 2018. A different neighbor told Trooper Chiros that, around 1:00 p.m. on
September 23, 2018, respondent came to his apartment door with the minor child and asked him
to open a prescription pill bottle for her. According to that neighbor, respondent appeared “[o]ut
of it,” and her head appeared to be “on a bobble.”
At the hospital, it was unable to be determined through a drug test what substances
respondent had consumed. However, respondent’s doctor ruled out a psychiatric issue and
believed respondent’s state was caused by substance abuse. When confronted, respondent
provided inconsistent statements to multiple individuals concerning what substances she had
ingested. As a result of respondent’s conduct on September 23, 2018, she was charged with
fourth-degree child abuse.
On October 8, 2018, a review hearing was held and evidence concerning the September
23, 2018 incident was presented. The trial court ultimately suspended respondent’s parenting
time. Petitioner filed a supplemental petition on November 2, 2018; and it sought termination of
respondent’s parental rights pursuant to MCL 712A.19b(3)(c)(i), (c)(ii), (g), and (j). The
termination hearing was held on January 9, 2019 and January 15, 2019 before a referee, who
issued recommended findings of fact and conclusions of law after the hearing was complete.
The referee recommended that respondent’s parental rights be terminated pursuant to all of the
statutory grounds relied on by petitioner. In so recommending, the referee relied on respondent’s
substance abuse and the fact that she had placed the minor child in danger on September 23,
2018. In a February 1, 2019 opinion and order, the trial court adopted the referee’s findings of
fact and terminated respondent’s parental rights. This appeal followed.
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Respondent first argues on appeal that the trial court erred in finding that statutory
grounds existed to terminate her parental rights. We disagree. “In order to terminate parental
rights, the trial court must find by clear and convincing evidence that at least one of the statutory
grounds for termination in MCL 712A.19b(3) has been met.” In re VanDalen, 293 Mich App
120, 139; 809 NW2d 412 (2011). “We review the trial court’s determination for clear error.” Id.“A finding is clearly erroneous if, although there is evidence to support it, we are left with a
definite and firm conviction that a mistake has been made.” In re HRC, 286 Mich App 444, 459;
781 NW2d 105 (2009) (quotation marks and citation omitted).
We first conclude that the trial court did not clearly err in finding that petitioner
established, by clear and convincing evidence, a statutory ground for termination under MCL
712A.19b(3)(c)(i). Termination is proper under MCL 712A.19b(3)(c)(i) when 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 [t]he 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.” This Court has previously held that termination
was proper under MCL 712A.19b(3)(c)(i) where “the totality of the evidence amply support[ed]
that [the respondent] had not accomplished any meaningful change in the conditions” that led to
adjudication. In re Williams, 286 Mich App 253, 272; 779 NW2d 286 (2009).
Here, “182 or more days” have “elapsed since the issuance of an initial dispositional
order” at the time of termination. See MCL 712A.19b(3)(c)(i). The condition that led to
adjudication was respondent’s substance abuse when she was pregnant with the minor child. At
the time the trial court authorized the first petition for termination of respondent’s parental rights
on July 20, 2017, respondent had failed to appear at several drug screens and had tested positive
for illegal substances in October 2016, February 2017, March 2017, and April 2017. On two
occasions, respondent’s parenting time ended early because respondent had slurred speech and
appeared to be under the influence. Respondent’s outpatient therapy was also discontinued
because she arrived to sessions in an intoxicated state. Respondent did not enter an inpatient
treatment program until May 2017, which was over nine months after the minor child was taken
into custody. Although respondent made progress during her 13-month inpatient treatment
program, the record clearly establishes that respondent abused substances on September 23, 2018
when the minor child was in her care. As a result of the amount of substances that respondent
consumed, she was incoherent and unaware that the two-year-old minor child had left the
apartment. Despite the fact that the evidence clearly established that she was intoxicated on
September 23, 2018, respondent provided numerous conflicting statements regarding what
substances she ingested and therefore never fully took responsibility for her substance abuse on
September 23, 2018.1 Moreover, the fact that respondent was observed to be nude and chanting
1
Although respondent argues on appeal that she had made progress on her issues with substance
abuse and that she merely had a “bizarre reaction” to medication on September 23, 2018,
because the referee based his recommendation to terminate respondent’s parental rights based on
the allegations of continued substance abuse, it is clear that the referee did not find the testimony
of respondent at the termination hearing to be credible. On appeal, this Court gives deference to
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in her apartment several weeks after September 23, 2018 supports the trial court’s conclusion
that she continued to abuse substances.
The totality of the evidence amply supports that respondent had not accomplished any
meaningful change in the condition that led to adjudication. See In re Williams, 286 Mich App
at 272. Although respondent argues that she would have been able to rectify the conditions if
given additional time, the record clearly establishes that there was no reasonable likelihood that
the condition that led to adjudication would “be rectified within a reasonable time considering
the child’s age.” See MCL 712A.19b(3)(c)(i). Respondent had demonstrated little progress with
respect to her long-term substance abuse at the time of termination. Moreover, the 2-1/2 year old
minor child had been in foster care for nearly his entire life. The trial court’s finding that
termination was proper pursuant to MCL 712A.19b(3)(c)(i) does not leave us with a definite and
firm conviction that a mistake has been made. See In re VanDalen, 293 Mich App at 139.
Because we have concluded that at least one ground for termination existed, we need not
consider the additional grounds upon which the trial court based its decision. See In re HRC,
286 Mich App at 461. Nevertheless, we have reviewed those grounds and conclude that
termination was appropriate under MCL 712A.19b(3)(g) and (j).2
Respondent also argues that termination was not in the minor child’s best interests
because they were developing a bond. We disagree. “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);
MCL 712A.19b(5). We review a trial court’s finding that termination is in the child’s best
interests for clear error. In re HRC, 286 Mich App at 459. Whether a child is progressing in
foster care and the child’s need for stability and permanency may be considered in determining
best interests. In re VanDalen, 293 Mich App at 141. When determining best interests, a trial
court may also consider whether the parent has resolved the conditions that led to adjudication,
In re Jones, 286 Mich App 126, 129-130; 777 NW2d 728 (2009), and whether the parent has a
the trier of fact’s “special opportunity to judge the credibility of the witnesses.” See In re HRC,
286 Mich App at 450.
2
The trial court clearly erred when it relied on MCL 712A.19b(3)(c)(ii) when terminating
respondent’s parental rights. More specifically, MCL 712A.19b(3)(c)(i) and (c)(ii) were not
addressed as separate statutory grounds. Rather, the referee’s findings of fact, which were
adopted by the trial court, focused exclusively on respondent’s continued substance abuse as
grounds for terminating her parental rights. The referee made no findings of fact regarding other
conditions that existed that brought the minor child within the court’s jurisdiction. Therefore, the
trial court clearly erred in terminating respondent’s parental rights pursuant to MCL
712A.19b(3)(c)(ii). Nonetheless, because termination under MCL 712A.19b(3)(c)(i), (g), and (j)
was proper, the trial court’s termination of respondent’s parental rights pursuant to MCL
712A.19b(3)(c)(ii) amounts to harmless error. See In re Jones, 286 Mich App 126, 129; 777
NW2d 728 (2009).
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healthy bond with the child, In re CR, 250 Mich App 185, 196-197; 646 NW2d 506 (2002),
overruled on other grounds by In re Sanders, 495 Mich 394, 422-423; 852 NW2d 524 (2014).
The record in this case clearly establishes that the minor child was at risk of neglect in
respondent’s care given that respondent did not have consistent employment or suitable housing
during the proceedings, see In re VanDalen, 293 Mich App at 141, and she continued to struggle
with substance abuse in the time leading up to termination of her parental rights, see In re Jones,
286 Mich App at 129-130. Importantly, even after receiving two years of services and spending
13 months in inpatient treatment, respondent overdosed on unknown substances while the minor
child was in her care on September 23, 2018. This resulted in the minor child being
unsupervised outside of the home and criminal charges being filed against respondent. Although
the minor child was not physically harmed on that date, the record supports that he was at risk of
physical harm and was actually emotionally harmed as a result of respondent’s overdose and
failure to supervise him. With respect to the minor child’s need for permanency, at the time of
termination, the minor child had spent almost his entire life in foster care and was bonded to his
foster parents. Throughout the proceedings, it was reported that the minor child was thriving,
happy, and developing well in his foster home. Additionally, although there was evidence of a
bond between respondent and the minor child, the record supports that it was not a healthy bond
given that the minor child’s social development improved after respondent’s visits with him
ended. See In re CR, 250 Mich App at 196-197. Based on a review of the record, the trial court
correctly concluded that terminating respondent’s parental rights was in the minor child’s best
interest. Thus, it did not clearly err. See MCL 712A.19b(5); In re HRC, 286 Mich App at 459.
Affirmed.
/s/ Kathleen Jansen
/s/ Thomas C. Cameron
/s/ Jonathan Tukel
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