In Re foote/grassman-foote 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UNPUBLISHED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 FOOTE/GRASSMAN-FOOTE, Minors. March 16, 2023
No. 364225
Newaygo Circuit Court
Family Division
LC No. 21-009518-NA
Before: M. J. KELLY, P.J., and JANSEN and CAMERON, JJ.
PER CURIAM.
Respondent-father appeals as of right the trial court order terminating his parental rights to
the minor children under MCL 712A.19b(3)(c)(i) (conditions that led to adjudication continue to
exist) and MCL 712A.19b(3)(j) (reasonable likelihood child will be harmed if returned to parent).
We affirm.
The three minor children were removed from respondent’s care when he and the children’s
mother left the children with a nonrelative in an unsuitable home.1 Respondent was on probation
at the time, violated probation by testing positive for amphetamine and methamphetamine, and a
bench warrant was issued for his arrest. He was sentenced to an in-patient drug rehabilitation
program. The initial barriers to reunification were respondent’s substance abuse, maintaining safe
and stable housing, and his incarceration. After he was released from rehab, he was offered
services to rectify these issues. However, he continued to test positive for illegal drugs, he resided
with his parents, and did not verify his employment by the time of the termination hearing. Thus,
his parental rights were terminated.
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The children’s mother was a respondent in this case, and her parental rights were terminated, but
she is not a party to this appeal.
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I. REASONABLE EFFORTS
Respondent contends that the Michigan Department of Health and Human Services
(DHHS) did not make reasonable efforts at reunification by failing to offer sufficient services. We
disagree.
To preserve an argument that petitioner failed to provide reasonable efforts toward
reunification, the respondent must “object or indicate that the services provided to them were
somehow inadequate.” In re Frey, 297 Mich App 242, 247; 824 NW2d 569 (2012). The time for
asserting the need for accommodation in services is when the court adopts a service plan or soon
afterward. In re Atchley, ___ Mich App ___, ___; ___ NW2d ___ (2022) (Docket Nos. 358502
and 358503); slip op at 2. “However, even if a parent does not object or otherwise indicate that
the services provided were inadequate when the initial case services plan is adopted, such an
objection or challenge may also be timely if raised later during the proceedings.” Id. Respondent
did not object or otherwise indicate that the services provided were inadequate throughout the
proceedings. Because this issue is unpreserved, it is reviewed for plain error affecting substantial
rights. 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.” Kern v
Blethen-Coluni, 240 Mich App 333, 336; 612 NW2d 838 (2000) (quotation marks and citation
omitted).
Generally, “when a child is removed from the parents’ custody, the petitioner is required
to make reasonable efforts to rectify the conditions that caused the child’s removal by adopting a
service plan.” In re Fried, 266 Mich App 535, 542; 702 NW2d 192 (2005). “The [trial] court is
not required to order the agency to initiate proceedings to terminate parental rights if . . . [t]he state
has not provided the child’s family . . . with the services the state considers necessary for the
child’s safe return to his or her home, if reasonable efforts are required.” MCL 712A.19a(8)(c).
Although 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 the services that are offered.” In re Frey, 297 Mich App at 248. “Not only must respondent
cooperate and participate in the services, [he] must benefit from them.” In re TK, 306 Mich App
698, 711; 859 NW2d 208 (2014). This Court has explained that a “contention that reasonable
services were not offered ultimately relates to the issue of sufficiency.” In re Fried, 266 Mich App
at 541.
Respondent emphasizes that he engaged in several services without the assistance of his
caseworker. However, respondent’s decision to seek services independently does not compel the
conclusion that petitioner’s reunification efforts were not reasonable. See id. at 543. Contrary to
respondent’s assertion, the record reflects that the services offered to respondent included a referral
to Community Mental Health (CMH), random drug screening, supervised parenting time, family
team meetings, and a referral for Section 8 housing.
From the beginning of this case, respondent absconded from probation and had an
outstanding bench warrant for his arrest. He refused to provide the DHHS with his location. For
reasons outside its control, the DHHS could not provide respondent with services when respondent
was a probation absconder and when he was sentenced to residential rehabilitation treatment at
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Tri-Cap. After respondent was released from Tri-Cap in May 2022, his caseworker started offering
respondent drug screenings during parenting-time visits and was attempting to sign up respondent
for counseling through CMH. When respondent told his caseworker that the local CMH would
not return his calls because of an overdue bill, she attempted to refer him to Ludington and Lake
County CMH, whose services respondent failed to engage.
Respondent argues that his caseworker should have provided drug screening more
frequently. However, upon his release from Tri-Cap, drug screenings were offered during
parenting-time visits and amounted to a test approximately every other week before the trial court
held that the DHHS no longer had to provide services to respondent. Respondent’s caseworker
timed these screenings with parenting-time visits. Any failure to provide more frequent testing
was due to respondent’s failure to participate in parenting-time visits.
Additionally, respondent argues that the DHHS did not help respondent verify his
employment or assist in finding housing. These assertions are not supported by the record. His
caseworker made several requests to respondent to verify his employment and never received it.
Beyond repeatedly asking respondent for verification, there is little more that the caseworker could
do to verify his employment without respondent’s cooperation. As to housing, respondent’s
caseworker helped him get a Section 8 voucher. Respondent was rejected from Section 8 housing
because he failed to turn in required paperwork. Respondent cannot blame the DHHS for his own
failure to turn in paperwork.
Finally, respondent argues that the DHHS failed to provide respondent with adequate
parenting time. At the start of this case, on the record, respondent refused parenting time because
he wanted to deal with his bench warrants before seeing his children. The trial court left open the
option for respondent to participate in supervised parenting time. By the December 2021
dispositional hearing, respondent had not yet participated in parenting time. Respondent expressed
interest in parenting time, but he remained an absconder from probation. After this hearing,
respondent entered Tri-Cap and was not released until May 2022. By the June 2022 statutory
review hearing, respondent had participated in several parenting-time visits by phone and had his
first in-person visit with his children. After this hearing, respondent was not consistent with his
parenting-time visits. Respondent canceled one appointment in June and failed to show for
another. His caseworker attempted to reschedule these visits. This record does not reflect that the
DHHS offered inadequate parenting time. Instead, it shows that respondent failed to consistently
attend and that his caseworker attempted to reschedule these missed appointments to accommodate
him. Ultimately, respondent failed to uphold his commensurate responsibility to participate in the
services offered. See In re Frey, 297 Mich App at 248.
II. STATUTORY GROUNDS
Respondent argues that the trial court clearly erred by finding that clear and convincing
evidence supported that the alleged statutory grounds were met. 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 at 139. This Court reviews the trial court’s determination
for clear error. Id.; MCR 3.977(k). “A finding of fact is clearly erroneous if the reviewing court
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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 Moss, 301 Mich App 76, 80; 836
NW2d 182 (2013) (quotation marks and citation omitted). The trial court need only establish one
statutory ground by clear and convincing evidence to terminate parental rights. In re Ellis, 294
Mich App 30, 32; 817 NW2d 111 (2011).
The trial court did not clearly err by finding that the statutory grounds for termination were
established by clear and convincing evidence under MCL 712A.19b(3)(c)(i). Termination under
MCL 712A.19b(3)(c)(i) is appropriate 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 the court,
by clear and convincing evidence, finds . . . [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.
The principal conditions that led to adjudication were respondent’s substance abuse,
criminality, and a lack of appropriate housing. An investigation into respondent and the mother
of the children was initiated when one of the children was born testing positive for
methamphetamine. The investigation revealed that both parents used methamphetamine and the
home was inhabitable for the children. Glass and debris were strewn across the floor, and there
was no access to water. The investigation also revealed that the parents had left their children in
the care of an acquaintance.
Respondent was a probation absconder. During the pendency of this case, respondent was
arrested on a bench warrant and sentenced to residential care at Tri-Cap. At Tri-Cap, respondent
participated in various courses on substance abuse. The DHHS provided respondent with
supervised parenting-time visits by phone. After respondent left Tri-Cap, the DHHS started in-
person supervised parenting-time visits with respondent. Within weeks of leaving Tri-Cap,
respondent tested positive for cocaine, methamphetamine, and amphetamine. Respondent
continued to test positive for methamphetamine and amphetamine over several more drug
screenings. Beyond respondent’s relapse, he failed to engage in mental-health services, provide
verification of his employment when asked by his caseworker several times, and presented no
proof that his parents’ house where he was residing was suitable for his children.
A year into these proceedings, the DHHS sought to terminate respondent’s parental rights.
Respondent had failed to resolve his substance-abuse and criminality issues. Upon release from
his sentence in Tri-Cap, respondent started abusing drugs almost immediately. He failed to show
that he had a verifiable source of income or suitable housing. The evidence established that
respondent failed to address any of these barriers over the 12 months in which he was in a service
plan with the DHHS and that each of these conditions would continue to exist. See
MCL 712A.19b(3)(c)(i).
Because we conclude that the trial court did not clearly err as to Subsection (3)(c)(i), we
need not address Subsection (3)(j). See In re Olive/Metts Minors, 297 Mich App 35, 41; 823
NW2d 144 (2012) (“Only one statutory ground for termination need be established.”).
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III. BEST INTERESTS
Respondent also argues that the trial court clearly erred by finding that a preponderance of
the evidence supported that termination was in the children’s best interests. We disagree.
After the trial court determines that at least one of the statutory grounds has been met, the
trial court must also find by a preponderance of the evidence that termination is in the children’s
best interests before it can terminate parental rights. In re Moss, 301 Mich App at 90. This Court
reviews the trial court’s findings regarding the child’s best interests for clear error. In re Trejo,
462 Mich 341, 357-358; 612 NW2d 407 (2000).
“[T]he focus at the best-interest stage has always been on the child, not the parent.” In re
Moss, 301 Mich App at 87. The trial court may consider such factors as “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 41-42 (citations omitted). Other considerations include the length of time the child was in foster
care or placed with relatives, the likelihood that “the child could be returned to [his or] her parent’s
home within the foreseeable future, if at all,” and compliance with the service plan. In re Frey,
297 Mich App at 248-249. Additionally, the trial court may consider a parent’s substance-abuse
problems in its best-interests analysis. In re AH, 245 Mich App 77, 89; 627 NW2d 33 (2001).
The evidence established that termination of respondent’s parental rights was in the
children’s best interests. The record showed that respondent interacted well with his children
during parenting-time visits. However, respondent had seen his children only a few times over the
past year. Respondent showed little to no progress on any of his barriers, and the instability and
lack of permanency affected his children’s mental and emotional well-being. Instead, his
children’s placement with a foster family provided them with the stability and permanency they
needed. Therefore, the trial court did not err by terminating respondent’s parental rights to the
children.
Affirmed.
/s/ Michael J. Kelly
/s/ Kathleen Jansen
/s/ Thomas C. Cameron
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