in Re Walker 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UNPUBLISHED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 WALKER, Minors. January 28, 2020
Nos. 348736, 348739
Wayne Circuit Court
Family Division
LC No. 04-433195-NA
Before: BECKERING, P.J., and CAVANAGH and STEPHENS, JJ.
PER CURIAM.
In these consolidated appeals, respondent-father, C. Walker, and respondent-mother, L.
Hayes, appeal as of right the trial court’s order terminating their parental rights to their children,
SAW and SARW. The trial court terminated the parental rights of both respondents under MCL
712A.19b(3)(g), (i), and (j). Because we conclude that there are no errors warranting relief in
either appeal, we affirm.
1. FACTUAL AND PROCEDURAL BACKGROUND
Between 2002 and 2017, respondent-mother gave birth to seven children. The family’s
contact with Children’s Protective Services (CPS) began in 2002, following the birth of
respondent-mother’s first child, TH. Court intervention started in 2004, and by 2007,
respondent-mother’s parental rights were terminated to her three oldest children, TH, EW, and
KH. During these early proceedings, respondent-mother was offered services to address her
substance abuse, mental health, parenting skills, and domestic violence. The services were
unsuccessful and these issues remained barriers to reunification.
Several years later, in 2010, respondent-mother gave birth to respondent-father’s
daughter, SW. This child was removed from respondents’ care after CPS received a complaint
that SW was injured during a physical altercation between respondent-mother and respondent-
father. The court declined to terminate respondents’ parental rights to SW at the initial
disposition and, instead, made the child a temporary ward of the court and provided respondents
with an opportunity to participate in a treatment plan and work toward reunification. During this
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time, respondent-mother gave birth to her fifth child, NR, 1 who was also removed from
respondent-mother’s care. Again, domestic violence, untreated mental health concerns,
substance abuse, and unstable housing culminated in the termination of respondents’ parental
rights to SW and NR in March 2016.2 Thus, by the time the children at issue in this appeal,
SAW and SARW, came into care, respondent-mother’s parental rights to five other children and
respondent-father’s parental rights to one other child had previously been terminated.
When respondent-mother gave birth to SAW in 2016, the child was allowed to go home
with respondent-mother and remain in her care for almost three months. However, after CPS
became aware that respondents were still in a relationship and likely living together, SAW was
removed from respondent-mother’s care in November 2016. Six months later, in May 2017, the
court denied a request to terminate respondents’ parental rights, made SAW a temporary ward of
the court, and permitted respondents additional time to work toward reunification. Two months
later, respondent-father was arrested and jailed on domestic violence charges. While he
remained jailed awaiting resolution of his criminal matter, respondent-mother gave birth to their
daughter SARW in October 2017. Shortly thereafter, petitioner filed a petition seeking
termination of respondents’ parental right to SARW at the initial disposition. In June 2018,
petitioner similarly filed a supplemental petition requesting that the court also terminate
respondents’ parental rights to SAW. After separate hearings on the two petitions in December
2018, the court found statutory grounds to terminate respondents’ parental rights and further
determined that termination was in the children’s best interests. These appeals followed.
II. DOCKET NO. 348736 (RESPONDENT-FATHER)
Respondent-father does not directly challenge the trial court’s findings regarding the
statutory grounds for termination or the children’s best interests, but he asserts the trial court
erred by finding that reasonable efforts were made to reunify the family. Because respondent-
father did not raise this issue in a timely manner in the trial court, and did not object to the
service plan or argue that the services provided were inadequate, this issue is not preserved for
appellate review. See In re Frey, 297 Mich. App. 242, 247; 824 NW2d 569 (2012). In general,
we review a preserved issue regarding reasonable efforts for clear error. In re Fried, 266 Mich
App 535, 542-543; 702 NW2d 192 (2005). However, unpreserved issues are reviewed for plain
error affecting substantial rights. In re Utrera, 281 Mich. App. 1, 8; 761 NW2d 253 (2008).
“Generally, an error affects substantial rights if it caused prejudice, i.e., it affected the outcome
of the proceedings.” Id. at 9. After reviewing the record, we conclude that respondent-father has
failed to demonstrate any error, plain or otherwise.
1
Although R. Robinson was identified as NR’s putative father, no legal father was ever
established.
2
This Court affirmed that decision in January 2017. In re Walker/Robinson, unpublished per
curiam opinion of the Court of Appeals, issued January 24, 2017 (Docket Nos. 332243 &
332244).
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Before a court may contemplate termination of a parent’s parental rights, the petitioner
generally must make reasonable efforts to reunite the family. MCL 712A.19a(2). “The
adequacy of the [DHHS]’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 has the responsibility to not only cooperate and participate in the
services, he must also benefit from them. In re TK, 306 Mich. App. 698, 711; 859 NW2d 208
(2014). Our review of the record fails to yield support for respondent-father’s assertion that the
trial court erred when it concluded that petitioner made reasonable efforts to preserve and reunify
this family.
Respondent-father argues that petitioner’s efforts at family reunification were not
reasonable because necessary referrals were not made to address his substance abuse issues.
Specifically, he contends that he should have been referred for inpatient treatment. Respondent-
father asserts that such referrals were necessary before he could successfully complete his
treatment plan. After reviewing the record, we find no support for respondent-father’s position
that petitioner’s efforts to address his substance abuse issues were deficient.
For several years, petitioner provided respondent-father with services designed to address
his substance abuse issues. After SW was removed in 2010, the court-ordered treatment plan
included, among other things, parenting classes, individual counseling, substance abuse
treatment, and mental health services. Similarly, after the court took jurisdiction of SAW in
January 2017, it ordered respondent-father in May 2017 to again participate in services,
including random weekly drug screens. In response, respondent-father replied on the record,
“I’m not doing none of this.” During a family team meeting in June 2017, respondent-father
refused to sign the treatment plan and disputed the necessity of services. When respondent-
father eventually submitted some drug screens, they were not random. In July 2017, respondent-
father was arrested for domestic violence. He was incarcerated for approximately 10 months.
During his incarceration, the caseworker mailed a copy of the treatment plan to respondent-father
six times. The worker was assured that he received the plan because after the first one was sent,
respondent-father tore it up and mailed the pieces back to the worker with a note that said,
“thanks, no thanks.” When respondent-father was released in May 2018, participation in mental
health and substance abuse treatment was a condition of his probation. Similarly, pursuant to his
treatment plan, he was again required to participate in random drug screens. Initially,
respondent-father would not comply because he did not want to participate in the call-in process.
When he did decide to participate in drug screening, he would only do so when he was at the
agency for parenting time. This did not qualify as random screening. In any event, respondent-
father did screen approximately 10 times during his parenting-time visits. These screens were
routinely negative. In August 2018, respondent-father was re-referred for services. These
referrals included domestic violence group counseling, mental health treatment, parenting skills,
and substance abuse services. Respondent-father submitted three random screens between
August and October 2018, and all three were negative. Then, respondent-father was early
terminated from services when he simply stopped participating in all treatment in October 2018.
Given this record, we find no support for respondent-father’s claim that petitioner failed to
adequately address his substances abuse issues. Instead, the record demonstrates that
respondent-father failed to cooperate with all of the services provided, particularly services that
would have assisted in discerning whether he required different or more intensive treatment.
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Furthermore, respondent-father has failed to provide any support for his position that if
yet another referral for services, including inpatient treatment, had been made, the results likely
would have been different. Considering respondent-father’s history, there is no basis for
concluding that even if additional services or modifications had been pursued, respondent-father
would have promptly cooperated with or benefited from these efforts. Under these
circumstances, there is no indication that respondent-father would have fared better had
additional or alternative services been offered.
Petitioner made the necessary referrals to address both respondent-father’s substance
abuse and mental health issues. After reviewing the record, we find no merit to respondent-
father’s assertion that petitioner’s efforts were deficient or contributed to his failure to remove
the barriers to reunification. While respondent-father faults petitioner for failing to make even
more referrals, the record demonstrates that this is a case where respondent-father was unable to
sufficiently benefit from the services offered during the years his children were wards of the
court living in a foster home. “While the [DHHS] has a responsibility to expend reasonable
efforts to provide services to secure reunification, there exists a commensurate responsibility on
the part of respondents to participate in services that are offered.” In re Frey, 297 Mich. App. at
248. Further, “[n]ot only must respondent cooperate and participate in the services, she must
benefit from them.” In re TK, 306 Mich. App. at 711. In this case, respondent-father did not
make any meaningful effort to cooperate in the services that were offered and designed to
address the barriers to reunification.
III. DOCKET NO. 348739 (RESPONDENT-MOTHER)
Respondent-mother challenges the trial court’s findings that the statutory grounds for
termination were established by clear and convincing evidence. She also challenges the court’s
finding that termination of her parental rights was in the children’s best interests. We find no
error in either regard.
In order to terminate parental rights, the trial court must first find that at least one of the
statutory grounds for termination has been established by clear and convincing evidence. In re
Trejo, 462 Mich. 341, 355; 612 NW2d 407 (2000). This Court reviews the trial court’s findings
under the clearly erroneous standard. MCR 3.977(K). A finding is clearly erroneous if the
reviewing court is left with a definite and firm conviction that a mistake has been committed. In
re Miller, 433 Mich. 331, 337; 445 NW2d 161 (1989). Once a statutory ground for termination
has been established, the trial court must find that termination of parental rights 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). Whether termination of parental rights is in a child’s best interests must
be proven by a preponderance of the evidence. In re Moss, 301 Mich. App. 76, 90; 836 NW2d
182 (2013). This Court reviews for clear error a trial court’s finding that termination of parental
rights is in a child’s best interests. In re Jones, 286 Mich. App. 126, 129; 777 NW2d 728 (2009).
A. STATUTORY GROUNDS
The trial court terminated respondent-mother’s parental rights under MCL
712A.19b(3)(g), (i), and (j), which permit termination of parental rights when:
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(g) The parent, although, in the court’s discretion, financially able to do
so, 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.
* * *
(i) Parental rights to 1 or more siblings of the child have been terminated
due to serious and chronic neglect or physical or sexual abuse and the parent has
failed to rectify the conditions that led to the prior terminate of parental rights.
(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.
The trial court did not clearly err when it terminated respondent-mother’s parental rights under
the foregoing grounds. These statutory grounds are supported by many of the same facts.
Between 2006 and 2016, respondent-mother’s parental rights to five children were
terminated as a result of her mental instability, domestic violence, unstable housing, and poor
parenting skills. Throughout the prior proceedings, respondent-mother was provided with
services to remove the barriers to reunification. She was unable to demonstrate that she could
properly provide for her children and, as a consequence, the court terminated her parental rights
to five children. When SAW came into care in 2016, these services continued. Moreover,
similar to prior proceedings, the trial court denied the first petition to terminate respondent-
mother’s parental rights. She was then given additional time to address, among other things, her
mental health, anger management, and domestic violence issues. Despite being offered services
for an extended period of time, respondent-mother still is unable to provide a safe and stable
home for her children. During the termination hearings in this case, petitioner provided clear and
convincing evidence that respondent-mother had not overcome the barriers to reunification,
which have existed for years.
The evidence clearly and convincingly established that respondent-mother’s mental
health issues and mental instability remained a barrier to reunification. Respondent-mother was
diagnosed with several psychiatric conditions, including bipolar disorder with psychotic features
and schizoaffective disorder. She had treated with a psychiatrist since 2003. The prior
terminations of respondent-mother’s parental rights to her older children were due, in part, to her
mental instability. Approximately a month before the December 2018 termination hearing in this
case, respondent-mother was hospitalized because of a manic/psychotic episode. She received
inpatient psychiatric treatment for 11 days. During her hospitalization, she admitted that she had
been off her medication for several years. Upon her discharge, she was instructed to continue
her medications. At the termination hearing three weeks later, respondent-mother acknowledged
her recent hospitalization but claimed that she was never told a diagnosis, that she did not know
why she required hospitalization, and that she believed she was hospitalized for a physical
problem. She also admitted that she was not taking any of her medications. Respondent-mother
testified that her treating physician told her that she did need any medication. However, the
caseworker clarified that the mental health care provider was not going to prescribe any more
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medication because respondent-mother did not believe she had a mental illness and the provider
did not believe respondent-mother would comply with the medication regime. Clearly, at the
time of termination, respondent-mother continued to struggle with mental health issues.
The evidence further supports that the children would be at risk of harm in respondent-
mother’s care because she was not able to control her emotions due to her mental health issues.
Despite treatment, respondent-mother continued to have confrontations with respondent-father,
and with other individuals. The caseworker testified that respondent-mother became involved in
a physical altercation with a friend, she had issues with her family, and she had an altercation
with strangers that resulted in her sustaining a black eye. Another caseworker testified that
during a November 2018 telephone conversation, respondent-mother threatened the worker and
used a string of profanities. The threats were significant enough that a police report was made.
Clearly, at the time of termination, respondent-mother was not emotionally stable and she had
not acknowledged the severity of her mental illness or the need for treatment.
There was also clear and convincing evidence that respondent-mother had not adequately
addressed the domestic violence issues that have plagued her relationships for years. Throughout
her 12-year association with respondent-father, domestic violence was an ongoing concern.
Respondent-father was arrested, charged, and jailed on domestic violence charges several times.
Moreover, the caseworker made clear that respondent-mother was also abusive and physically
aggressive. Respondent-mother was offered domestic violence and anger management
counseling. Despite these services, the violence continued. Moreover, respondent-mother
continued to maintain a relationship with her abuser. Respondent-mother contends on appeal
that she should not be punished because she is a victim of abuse. However, this ignores the fact
that respondent-mother appears to have made no effort to sever her relationship with respondent-
father. Respondent-mother had a history of misrepresenting to the court and her caseworkers
that respondent-father was not living in her home. Just weeks before the termination hearing, it
was clear that they were still involved because respondent-father was the person who took
respondent-mother to the hospital when she had her psychotic episode and the records indicate
that she went home with him after her discharge.
There was also clear and convincing evidence that respondent-mother lacked the
necessary skills to properly parent her children. Respondent-mother challenges this conclusion,
arguing that she had completed parenting classes and that the evidence was uncontroverted that
she had suitable housing for her children. However, while respondent-mother did participate in
several services, she clearly did not benefit from them. Respondent-mother’s continued
relationship with respondent-father evidenced, at the least, poor judgment and suggested that she
was unwilling to put her children’s needs ahead of her own. Further, while respondent-mother
did maintain a home that was structurally suitable and fairly well-equipped, this did not render
the home appropriate for her children because she continued to allow respondent-father to be in
the home. This was concerning not only because of the violence in their relationship, but
because respondent-father was also a convicted sex offender and for most of the relevant time
period he was included on the sex-offender registry.
On the basis of the foregoing, the trial court did not clearly err by finding clear and
convincing evidence to terminate respondent-mother’s parental rights to the minor children
under MCL 712A.19b(3)(g), (i), and (j). The evidence supports a finding that respondent-mother
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had her rights to five other children previously terminated due to serious and chronic neglect and
that she has failed to rectify the conditions that led to the prior terminations. Moreover,
respondent-mother was neither in a position to properly parent her children nor reasonably likely
to be able to do so within a reasonable time, and the children were reasonably likely to be
harmed if returned to her care.
B. BEST INTERESTS
The trial court did not clearly err when it found that termination of respondent-mother’s
parental rights was in the children’s best interests.
A court may consider several factors when deciding if termination of parental rights is in
a child’s best interests, including 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 Olive/Metts, 297 Mich. App. at 42. The court may also consider
psychological evaluations, the child’s age, continued involvement in domestic violence, and a
parent’s history. In re Jones, 286 Mich. App. at 131.
Respondent-mother simply argues that a bond existed between her and the children.
While respondent-mother and the children may have a bond, that factor does not outweigh the
children’s need for a safe and stable home that is free from emotional volatility and domestic
violence. Respondent-mother continued to struggle with mental health issues and she had not
adequately addressed her anger management and domestic violence issues. She continued to be
involved in altercations with several individuals and she lacked insight into the nature of her
conduct. She did not comprehend the severity of her mental illness and the need for treatment.
The evidence confirmed that the children would be at risk of harm in respondent-mother’s care.
When balancing the best-interest factors, a court may consider the advantages of a foster
home over the parent’s home and the possibility of adoption. In re Olive/Metts, 297 Mich. App. at
41-42. At the time of termination, SAW was 2½ years old and SARW was just one year old.
They had been in care for most, if not all, of their young lives. They were living in the same
foster home with another sibling. Their needs were being satisfied and the foster parent had
expressed a desire to adopt the children. Thus, it is clearly apparent that the children were in a
stable home where they were progressing and that this progress could continue because there
existed an individual willing to provide permanency for the children. They were entitled to
stability, consistency, and finality. Accordingly, the trial court did not clearly err when it held
that termination of respondent-mother’s parental rights was in the children’s best interests.
Affirmed.
/s/ Jane M. Beckering
/s/ Mark J. Cavanagh
/s/ Cynthia Diane Stephens
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