in Re McCloud 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UNPUBLISHED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 MCCLOUD, Minors. January 23, 2020
No. 348680
Muskegon Circuit Court
Family Division
LC No. 2013-043227-NA
Before: MARKEY, P.J., and GLEICHER and M. J. KELLY, JJ.
PER CURIAM.
Respondent-mother appeals by right the order terminating her parental rights to her three
minor children under MCL 712A.19b(3)(c)(i) (conditions leading to adjudication continue to
exist) and (j) (reasonable likelihood of harm to child if returned to parent).1 We affirm.
I. PERTINENT FACTS
The two oldest children were removed from respondent’s care in 2016 after the 13-
month-old boy suffered severe burns to his face, neck, and chest area and was found to have
three unexplained healed fractures. The two-year-old girl was also found to have a healed
fracture. At the adjudication, evidence was presented that the young boy’s burns occurred when
respondent was at work and while McCloud was bathing the child. The burns were consistent
with the boy being dunked in hot water. Respondent did not believe that McCloud had abused
the child. Additional evidence showed that in 2013, McCloud had burned another one of
respondent’s children while respondent was sleeping.2 In that case, the burns appeared to have
been caused by an electric stove. In her testimony about the 2013 case, respondent testified that
1
The father of the three children at issue, K. McCloud, voluntarily relinquished his parental
rights to the children. He is not a party to this appeal.
2
This was a child that respondent had with a different father from an earlier relationship. That
child is not encompassed by this appeal.
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she did not know if McCloud had committed child abuse despite being aware that pediatric
physical abuse had been confirmed and that McCloud had entered a plea in a criminal
prosecution regarding the abuse. He pleaded guilty to second-degree felony child abuse and was
still on probation when the 13-month-old boy was burned in 2016. Respondent stated that after
the 2013 child protective proceeding was dismissed, she allowed McCloud to have unsupervised
contact with the children. In addition to the 2013 conviction, McCloud was eventually convicted
of second-degree child abuse for burning the 13-month old in 2016. The trial court assumed
jurisdiction over the children after the jury found that respondent had neglected or refused to
provide necessary care for the children’s health, that there was a substantial risk to the children’s
well-being, and that there existed an unfit home environment.
Respondent’s issues were identified as mental health and parenting skills. During the
first year of this child protective proceeding, respondent maintained housing and employment,
started counseling, and gave birth to the youngest child involved in this proceeding. The trial
court assumed jurisdiction over the youngest child after respondent admitted having phone
contact with McCloud while he was incarcerated and despite his convictions of child abuse
against her children. Domestic violence counseling was added to the treatment plan because a
review of the phone calls recorded at the jail and prison indicated that McCloud was very
controlling and manipulative of respondent. The youngest child was placed in the home of
respondent’s grandmother and her husband, but concerns quickly surfaced about the hostile and
demanding behavior the grandmother’s husband exhibited, and the parties stipulated to an order
that he not be allowed to attend parenting time.
At the beginning of the second year of the child protective proceeding, all three children
moved into the foster care home of their paternal uncle and aunt. Respondent was starting to
make progress in identifying unhealthy relationships, such as the one with her grandmother’s
husband. Concerns grew, however, about respondent’s lack of transparency regarding
individuals in her home. In addition, prison phone logs showed continued contact between
respondent and McCloud, even though she had agreed not to have contact with him. Respondent
had also allowed phone communication between the children and McCloud. Toward the end of
the second year, respondent was evicted from her home for nonpayment of bills and moved into
a domestic violence shelter. She later moved into her grandmother’s home. Respondent
subsequently secured an apartment but was again evicted. At one point, a man was discovered
sleeping in respondent’s residence during a scheduled home visit, and the man and respondent
refused to provide the man’s identity. Respondent later told a caseworker that she only knew the
man by his street name, Doggy. On another occasion, the caseworker, during a scheduled
parenting time visit at respondent’s home, discovered belongings in the basement that appeared
to be those of a male. Respondent stated that she was storing the belongings for a cousin, but,
according to the caseworker, respondent gave conflicting information about this purported
cousin.
The termination petition was filed at the beginning of the third year of the child
protective proceeding. By the time of the termination hearing, respondent was homeless and
living with a friend. Testimony from the caseworkers and case aides indicated that respondent
clearly loved the children but she struggled to manage all three children at the same time and
would become overwhelmed when the children acted out. There was also concern about a lack
of progress with respondent’s treatment plan and the children’s safety when in respondent’s care.
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The court-appointed special advocate (CASA) worker recommended termination, primarily
because respondent had continued to allow contact between the children and McCloud and also
because respondent patently could not provide a stable environment for the children.
Respondent testified that after the 13-month-old child was burned in 2016, she concluded that
McCloud had intentionally burned both him and her other child in 2013. She did not
immediately voice that belief, however, because she had been afraid of McCloud, who had
abused her in the past. Respondent explained that fear was also the reason she accepted his
many phone calls from jail and prison. She claimed that she would never again become involved
with a person who was controlling or allow a man to be with her children until she really knew
him. But she admitted that she had accepted $20 from a man whom she had met and about
whom the foster care worker had voiced concerns because he was in domestic violence
counseling. Respondent pointed out that the man had been the victim of domestic violence and
had given her the money because he understood her situation. Respondent claimed that she
would keep the children safe by not letting them be around McCloud or other random men.
II. GUIDING PRINCIPLES
If a trial court finds that a single statutory ground for termination has been established by
clear and convincing evidence and that it has been proved by a preponderance of the evidence
that termination of parental rights is in the best interests of a child, the court is mandated to
terminate a respondent's parental rights to that child. MCL 712A.19b(3) and (5); MCR
3.977(H)(3); In re Beck, 488 Mich 6, 10-11; 793 NW2d 562 (2010); In re Moss, 301 Mich App
76, 90; 836 NW2d 182 (2013); In re Ellis, 294 Mich App 30, 32; 817 NW2d 111 (2011). “This
Court reviews for clear error the trial court's ruling that a statutory ground for termination has
been established and its ruling that termination is in the children's best interests.” In re Hudson,
294 Mich App 261, 264; 817 NW2d 115 (2011); see also MCR 3.977(K). “A finding . . . is
clearly erroneous if the reviewing court has a definite and firm conviction that a mistake has
been committed[.]” In re BZ, 264 Mich App 286, 296; 690 NW2d 505 (2004). In applying the
clear error standard in parental termination cases, “regard is to be given to the special
opportunity of the trial court to judge the credibility of the witnesses who appeared before it.” In
re Miller, 433 Mich 331, 337; 445 NW2d 161 (1989); see also MCR 2.613(C).
III. STATUTORY GROUNDS FOR TERMINATION
We first review the finding of whether there was sufficient evidence to terminate
respondent’s parental rights under MCL 712A.19b(3)(j), which provides for termination when
clear and convincing evidence establishes that “[t]here 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.” The trial court terminated respondent’s parental rights based on this
statutory ground because of the risk of harm to the children resulting from respondent’s lack of
insight into who should be allowed around the children. In making this finding, the trial court
noted the injuries McCloud inflicted on the children, but it did not rely solely on the risk he
posed. Instead, the court found that the children were at a risk of harm because of respondent’s
lack of insight with respect to permitting others to be around the children in general.
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The trial court did not clearly err in finding that § 19b(3)(j) had been established by clear
and convincing evidence. Respondent’s mental health had been identified as an issue, and the
treatment plan provided for a psychological evaluation and any counseling recommended as the
result of the evaluation. Respondent was provided help in identifying healthy relationships and,
once domestic violence was found to be an issue, she was also provided domestic violence
counseling. On numerous occasions, the court made clear that the goal of respondent’s
counseling was for respondent to benefit from the information on healthy and unhealthy
relationships, to act in a manner that kept the children safe, and to set boundaries with other
adults and the children. At one hearing, the trial court stated that it would evaluate whether
respondent was “able to apply that information [on relationships] to her day-to-day life to set up
those barriers so the children are safe.” At another hearing, the trial court told respondent that it
would be key for her to show that she could say “no” to people that were forceful and perhaps
manipulative.
Throughout this lengthy case, respondent appeared to struggle with identifying healthy
relationships and setting boundaries to protect the children. It is true that respondent seemed to
recognize the hostile and demanding behavior of her grandmother’s husband and also started to
recognize McCloud’s controlling conduct, admitting that she had been abused by him. But there
was also evidence that respondent was unwilling to reveal the identities of people in her home
and was allowing people to sleep there without knowing their names. It was also concerning that
respondent had not informed her caseworker about a former boyfriend and appeared interested in
a relationship with a man who gave her money but who also called her repeatedly and displayed
signs of being controlling and demanding. Additionally, respondent did not attend counseling
sessions during the six months prior to the termination hearing.
In sum, the evidence supported the trial court’s conclusions that although respondent may
have made some progress, she was not yet able to identify healthy relationships and establish
boundaries to protect the children; consequently, there was a reasonable likelihood of harm to the
children if returned to respondent’s care. Accordingly, the trial court did not clearly err in
terminating respondent’s parental rights under MCL 712A.19b(3)(j). Because only one ground
for termination need be established, MCL 712A.19b(3); MCR 3.977(H)(3), we find it
unnecessary to review the trial court’s decision to terminate respondent’s parental rights under
MCL 712A.19b(3)(c)(i).
IV. ADMISSION OF REPORT CONTAINING NAME OF AN UNIDENTIFIED PERSON
Respondent next argues that her due-process rights were violated when the trial court
admitted into evidence a report containing the name of a person who was not identified but about
whom the trial court expressed concern. Respondent reasons that it was possible that the trial
court’s perception of respondent may have been altered by seeing the name of this unidentified
person on the report. Respondent did not raise this issue at the trial level. “We review
unpreserved claims of constitutional error under a plain-error analysis.” In re VanDalen, 293
Mich App 120, 135; 809 NW2d 412 (2011). “To avoid forfeiture under the plain error rule, three
requirements must be met: 1) the error must have occurred, 2) the error was plain, i.e., clear or
obvious, 3) and the plain error affected substantial rights.” Id. (quotation marks omitted). An
error affects a party’s substantial rights if it is prejudicial by impacting the outcome of the
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proceedings. Lawrence v Mich Unemployment Ins Agency, 320 Mich App 422, 443; 906 NW2d
482 (2017).
There was no plain error in this case because the record reflected: that the trial court was
focused on the management of the case when it referenced the unnamed person; that the
prosecutor had also been concerned about the unnamed person and had therefore contacted the
supervisor from the foster care agency; that the trial court reassured both the Department of
Health and Human Services and the CASA worker that they were doing a good job; and that the
trial court thought it may be necessary to explain something to the foster parents. This shows
that rather than being unfair to respondent, the trial court was apparently trying to ensure that the
case was properly managed. Furthermore, the court’s statement that the foster care parents may
need an explanation indicated that the potential problem likely involved the foster care
placements rather than respondent. Thus, the record simply does not support respondent’s claim
that her due-process rights were violated.
Respondent also argues that the trial court’s disregard for her due-process rights in
relation to the unidentified person constituted grounds for disqualification of the court. A trial
judge is presumed to be fair and impartial, and any litigant who challenges this presumption
bears a heavy burden to prove otherwise. In re Susser Estate, 254 Mich App 232, 237; 657
NW2d 147 (2002). Respondent’s argument has no merit. First, respondent failed to timely
move for disqualification at the trial level pursuant to MCR 2.003(D)(1)(a). Second, the record
does not support her claim that her rights were disregarded or that the trial court was biased
against her. Instead, the trial court simply appeared to be trying to avoid potential problems in
the management of her case. Third, her reliance on MCR 2.003(C)(1)(c) is misplaced because
that subsection provides for the disqualification of a judge when the judge has personal
knowledge of disputed evidentiary facts concerning the proceeding. The trial court’s reference
to a name on a report hardly constitutes personal knowledge of such facts. Thus, there was no
plain error, let alone a plain error that affected respondent’s substantial rights, when the trial
court admitted into evidence the report containing the name of the unidentified person.
V. BEST INTERESTS OF THE CHILDREN
With respect to a child’s best interests, we place our focus on the child rather than the
parent. In re Moss, 301 Mich App at 87. The interest of the child in living in a stable home is
superior to any interest of the parent. In re Medina, 317 Mich App 219, 237; 894 NW2d 653
(2016). In assessing a child’s best interests, a trial court may consider such factors as a “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 Olive/Metts Minors,
297 Mich App 35, 41-42; 823 NW2d 144 (2012) (citations 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.” In re White, 303 Mich App 701, 714; 846 NW2d 61 (2014). A
trial court can additionally consider the length of time a child “was in foster care or placed with
relatives,” and whether it was likely that “the child could be returned to [the parent’s] home
within the foreseeable future, if at all.” In re Frey, 297 Mich App 242, 248-249; 824 NW2d 569
(2012).
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In this case, the trial court did not clearly err when it found that termination of
respondent’s parental rights was in the children’s best interests. There was evidence that
respondent loved the children, that she took care of the children, and that respondent worked to
improve her parenting skills. But we cannot overlook the fact that two of her children suffered
burns inflicted by McCloud, yet she initially stood by McCloud and was deceptive about other
men. Furthermore, there was evidence that the three children were thriving in the home of their
foster care parents where they had lived for over a year by the time of the termination hearing
and that the foster parents were willing to adopt the children, which would allow the children to
stay with their siblings. In the opinion of the infant mental health specialist, given the oldest
boy’s attachment to the foster parents, it would have been traumatic for him to be moved from
their care. Moreover, it appeared that the foster parents were committed to ensuring that the
children have no contact with McCloud. This proceeding lasted for over 2½ years and,
considering the children’s need for permanency and stability, we conclude that the trial court did
not clearly err in finding by a preponderance of the evidence that terminating respondent’s
parental rights was in the children’s best interests.
We affirm.
/s/ Jane E. Markey
/s/ Elizabeth L. Gleicher
/s/ Michael J. Kelly
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