Opinion
No. 350533
05-21-2020
In re ACKLEY/DYE, Minors.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Eaton Circuit Court Family Division
LC No. 18-019930-NA Before: SWARTZLE, P.J., and GLEICHER and M. J. KELLY, JJ. PER CURIAM.
The circuit court terminated respondent-mother's parental rights to four of her five children based on her persistent substance abuse coupled with failure to protect her children from her violent romantic partners. Respondent challenges the evidentiary support for the statutory grounds underlying the termination decision and contends that termination of her parental rights was not in the children's best interests. We discern no error and affirm.
I. BACKGROUND
Child Protective Services (CPS) first became involved with respondent's family in 2009. At that time, respondent placed her oldest child, DA, in a guardianship with her mother. Respondent was then pregnant with her second child, AA. AA's father was abusive toward respondent and DA, and respondent abused opiates and marijuana during her pregnancy. AA was born with opiates in her system. CPS referred respondent for substance abuse counseling, therapy, and Early On services for the infant.
Respondent later became romantically involved with David Dye, Jr. Respondent and Dye had two more children—AD and DD. DD tested positive for substances upon birth and CPS ordered respondent to submit to drug screens, obtain a substance abuse assessment, and participate in Early On services and Families First programming. Between July 28 and September 18, 2017, respondent tested positive for Tramadol 12 times, cocaine five times, opiates twice, and amphetamines once. Moreover, Dye was physically abusive of respondent. After DD's birth, respondent briefly ended their relationship. When respondent went to their shared residence to collect her belongings, Dye assaulted her. Respondent and the children moved in with her mother. She secured a personal protection order and was provided with information for domestic violence counseling.
Although respondent and the children continued to live with her mother, she and the children joined Dye at a motel over the Christmas break in 2017. During that stay, Dye threw DA against a wall, breaking his femur. Respondent, who was pregnant with her third child with Dye, was too intoxicated to assist her son. DA laid on the floor that night, unable to move, and urinated on himself. When respondent and the children returned to her mother's house on January 4, 2018, DA had to "army crawl" from the vehicle because he was unable to walk. The family waited another two days to take him to the hospital.
As a result of these events, the Department of Health and Human Services (DHHS) filed a petition to remove AA, AD, and DD from the custody of respondent and Dye. The court ordered respondent to prevent Dye's contact with the children and Dye ultimately relinquished his parental rights. The court placed the children with respondent's mother and permitted respondent to live in the home as well. Respondent was ordered to participate in substance abuse counseling, a psychological evaluation, domestic violence counseling, and therapy. She was also required to submit to drug screens.
DA was not included in the petition as he remained in a guardianship with his maternal grandmother.
Respondent's compliance with the case services plan vacillated throughout the proceedings. Respondent continued to allow Dye access to AD and DD, as well as AMD after her birth. Although respondent initially participated in substance abuse treatment, she tested positive for marijuana on April 27, 2018, and opiates on May 8, 2018. AMD did not test positive for substances at birth, but suffered from withdrawal symptoms requiring an extended hospitalization.
In the fall of 2018, the caseworker reported that respondent was showing benefit from substance abuse treatment. However, respondent had continued her romantic relationship with Dye and respondent's mother no longer wanted respondent and her four younger children to live in her home. A relative purchased respondent a mobile home and paid three months of lot rent on her behalf, and the court approved respondent's move to the home with her children.
Once on her own, respondent demonstrated a marked decrease in benefit. Respondent was unemployed and fell behind on her rent. She lacked transportation to travel to services, search for employment, or ensure that AA attended school. Respondent did not take the children for Early On programming or medical appointments. Respondent missed several drug screens and tested positive for cocaine and marijuana in April 2019. Security footage established that Dye spent several nights at the mobile home in violation of court order. Then, on May 30, 2019, Dye appeared at the mobile home under the influence of methamphetamine or Adderall. Dye assaulted respondent in front of the children, choking her and threatening to kill her. Respondent's cousin arrived and Dye chased her with a knife. Respondent called 911, police arrived on the scene and arrested Dye, and the prosecutor charged Dye with domestic violence and felonious assault. When Dye was released on bond, however, respondent continued to allow him to visit the children in her home.
Respondent was evicted from the mobile home park on June 3, 2019, and she and the children moved back into her mother's home. One week later, the DHHS filed a petition to remove the children from respondent's care; the children were separated and placed in the homes of various relatives. And on June 24, 2019, the DHHS filed a supplemental petition to terminate respondent's parental rights based on her failure to benefit from substance abuse treatment, failure to protect her children from Dye, continued involvement in violent relationships, and medical neglect. The court found statutory grounds supporting termination and determined that termination was in the children's best interests.
Respondent was pregnant with her sixth child at the time of the termination hearing.
Respondent now appeals.
II. STATUTORY GROUNDS
Respondent contends that she had complied with her case service plan and could have achieved reunification if given additional time. Accordingly, respondent challenges the evidentiary support for the statutory grounds underlying the termination decision.
Pursuant to MCL 712A.19b(3), a circuit court "may terminate a parent's parental rights to a child if the court finds, by clear and convincing evidence" that at least one statutory ground has been proven by the DHHS. MCR 3.977(A)(3); In re Trejo, 462 Mich 341, 350; 612 NW2d 407 (2000). When termination is sought in a supplemental petition based on new grounds, the DHHS must present legally admissible evidence in support. In re DMK, 289 Mich App 246, 258; 796 NW2d 129 (2010). We review for clear error a circuit court's factual finding that a statutory termination ground has been established. In re Rood, 483 Mich 73, 90-91; 763 NW2d 587 (2009). "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 Moss, 301 Mich App 76, 80; 836 NW2d 182 (2013) (quotation marks and citation omitted). "Clear error signifies a decision that strikes us as more than just maybe or probably wrong." In re Williams, 286 Mich App 253, 271; 779 NW2d 286 (2009).
The court terminated respondent's parental rights under the following provisions of MCL 712A.19b(3):
The court may terminate a parent's parental rights to a child if the court finds, by clear and convincing evidence, 1 or more of the following:
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(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.
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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.
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(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 DHHS cited both MCL 712A.19b(c)(i) and (ii) in the supplemental termination petition and the court did not specify upon which subfactor it relied. The court's record analysis, however, makes clear that the termination decision was based upon factor (c)(i). --------
The record evidence supported termination under factor (c)(i). The DHHS filed its original petition on March 15, 2018, and provided services through August 20, 2019, 18 months later. Respondent also had received services at various times since 2009. Despite this assistance over the years, the conditions that led to adjudication persisted. Respondent continued her romantic relationship with Dye throughout the proceedings. She was 36 weeks pregnant at the time of the termination hearing and the caseworker suspected that Dye was the father. Although respondent initially showed benefit from substance abuse treatment and was permitted to move with the children into their own home, she regressed into drug use. Respondent tested positive for marijuana and cocaine in April 2019. She missed several drug screens, counseling sessions, and Buprenorphine dosages in June and July 2019. The psychologist who conducted respondent's psychological evaluation testified that respondent was likely to relapse as supervision decreased because she had a severe opiate and mild cannabis use disorder.
Although a court need only support its termination decision with one statutory ground, termination was also supported under factor (g). During the proceedings, a relative purchased a mobile home for respondent and paid three months lot rent on her behalf. Respondent did not secure employment and was ultimately evicted based in part on her nonpayment of rent. Indeed, respondent's mother testified that respondent had never lived independently for more than a few weeks at a time. Respondent also did not provide for the children's needs while they were in her care. Respondent was repeatedly referred to Early On for assistance with her children's developmental needs and yet did not follow through. She missed the children's well-child examinations and failed to transport AA to school regularly. Given respondent's failure to benefit from services, there was no reasonable likelihood that respondent would be able to provide proper care and custody for the children within a reasonable time.
And respondent's continued substance abuse and relationship with a violent man supported that the children would be placed in harm's way if returned to her care. Respondent continued her relationship with Dye after he threw DA against a wall, breaking his femur, and threatened to kill him. She continued her relationship with Dye after he choked and threatened to kill her in front of their children. Respondent repeatedly allowed Dye access to the children in defiance of court orders. The court did not err in concluding that respondent would not protect her children from Dye in the future.
Moreover, contrary to respondent's contention, termination was not premature. The current child protective proceeding lasted 18 months. CPS and the DHHS had provided services to respondent on multiple occasions since 2009. Although respondent showed some improvement in the middle of the proceedings in rectifying her substance abuse addiction, respondent relapsed and stopped complying with services. And respondent showed no benefit from services geared toward rectifying her involvement in relationships marred by domestic violence. Given this history, the DHHS was not required to prolong the proceedings further.
III. BEST-INTERESTS DETERMINATION
Respondent further contends that termination of her parental rights was not in the best interests of her children. "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), citing MCL 712A.19b(5). "[W]hether termination of parental rights is in the best interests of the child must be proven by a preponderance of the evidence." Moss, 301 Mich App at 90. The court should weigh all the evidence available to it in determining the child's best interests. Trejo, 462 Mich at 356-357. And we review the court's factual findings in this regard for clear error. In re Brown/Kindle/Muhammad Minors, 305 Mich App 623, 637; 853 NW2d 459 (2014).
Factors relevant to the best-interest determination include "the child's bond to the parent, the parent's parenting ability, [and] the child's need for permanency, stability, and finality," as well as the advantages of the foster home over the child's home with the parent. Olive/Metts, 297 Mich App at 41-42 (quotation marks and citations omitted). "The trial court may also consider a parent's history of domestic violence, . . . 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). Placement with relatives generally, but not necessarily, weighs against termination. Olive/Metts, 297 Mich App at 43. Ultimately, "the focus at the best-interest stage [is] on the child, not the parent." Moss, 301 Mich App at 87.
In determining that termination of respondent's parental rights was in the best interests of AA, AD, DD, and AMD, the court recognized the strong bond between respondent and her children and acknowledged that the children love their mother. However, respondent had a spotty history of complying with service plans and therefore had not rectified conditions that left her unable to safely parent. Respondent continued to abuse drugs and never completely severed her relationship with Dye. Because of her substance abuse, respondent had been unable to protect her children from Dye's violence in the past and there was no reasonable likelihood that respondent would be able to protect her children or herself in the future.
The court noted that the children were then divided up and placed with relatives. If those relatives could provide permanent and stable homes for the children for the rest of their minority, the court noted that it may be able to retain respondent's parental rights to continue the parent-child relationship. The relatives, however, indicated that they would be unable to provide for the children long-term. Nonrelative placements would need to be found to provide the children permanence. Accordingly, the relative placement did not weigh against termination in this case.
Ultimately, while we sympathize with respondent's plight, we discern no ground to overrule the trial court's assessment that termination of her parental rights was in the children's best interests.
We affirm.
/s/ Brock A. Swartzle
/s/ Elizabeth L. Gleicher
/s/ Michael J. Kelly