Opinion
No. 351836
01-28-2021
In re ALEXANDER/PETERSON/BEARD, Minors.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Wayne Circuit Court Family Division
LC No. 16-522293-NA Before: JANSEN, P.J., and SERVITTO and RIORDAN, JJ. PER CURIAM.
Respondent-mother, appeals as of right the trial court's orders terminating her parental rights to the minor children, LA, TA, DP, and DB, pursuant to MCL 712A.19b(3)(c)(i), (g), and (j). Finding no errors warranting reversal, we affirm.
Between 2006 and 2010, respondent gave birth to her four oldest children: DP, TA, LA, and NL. In 2013, Child Protective Services (CPS) investigated the family for complaints of physical abuse and neglect. CPS substantiated allegations that respondent abused and failed to protect her children from abuse perpetrated by J. Alexander, the father of TA and LA. This matter was resolved after respondent voluntarily participated in preventative services. However, in March 2016, the four children were removed from respondent's care after injuries consistent with child abuse were observed on both DP and TA. An ensuing petition alleged that respondent failed to protect her children from physical abuse at the hands of her boyfriend, B. Lloyd. After the court took jurisdiction of the children, respondent was ordered to comply with a treatment plan designed to address her parenting skills, emotional issues, and housing and employment instability. Respondent was also ordered to have no continued contact with B. Lloyd and she represented to the court and her caseworkers that she had severed her relationship with this man.
Approximately two years after the children came into care, and while respondent was purportedly participating in services, respondent gave birth to B. Lloyd's son, DB. Shortly after this child's birth, the child was removed from respondent's care and a petition was filed seeking termination of respondent's parental rights at the initial disposition. In exchange for respondent's plea of admission, the petition was reduced to one of temporary custody, and respondent was again ordered to participate in services. Ultimately, in November 2019, after more than 3½ years of services, the trial court terminated respondent's parental rights to four of the five children pursuant to MCL 712A.19b(3)(c)(i), (g), and (j). Thereafter, this appeal ensued.
Early in the proceedings, the court placed NL in the custody of her father, C. Lott. Petitioner did not pursue termination of respondent's parental rights to this child.
On appeal, respondent first challenges the trial court's findings that the statutory grounds for termination were established by clear and convincing evidence. We find no error in this regard.
In order to terminate parental rights, the trial court must 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).
The trial court terminated respondent's parental rights pursuant to MCL 712A.19b(3)(c)(i), (g), and (j), which permit termination of parental rights under the following circumstances:
(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:The record supports the trial court's reliance on these statutory grounds.
(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 children were removed from respondent's care and the court exercised jurisdiction over them after it was found that respondent failed to protect her two oldest children, DP and TA, from being physically abused by her boyfriend, B. Lloyd. After adjudication, the court ordered respondent to comply with a treatment plan designed to, among other things, improve her parenting skills, and thereby remove the barriers to reunification. Services offered to respondent included parenting classes, parenting time, psychological and psychological evaluations, housing assistance, and individual counseling. After DB's birth in February 2018, respondent was court-ordered to retake parenting classes, and, in addition to her other services, participate in Infant Mental Health (IMH) therapy and a domestic violence program. Respondent was also ordered to address four outstanding warrants. Despite being offered a multitude of services, and given an extraordinary amount of time to complete them, respondent was unable to demonstrate that she could properly parent her children, or establish that they would be safe in her care.
According to the foster care worker, at the time of the termination hearing, despite more than three years of services, respondent had failed to provide verification that she had completed any aspect of her treatment plan. The evidence established that between September 2016 and April 2019, respondent was terminated from individual therapy seven times. In April 2019, she was re-referred for individual therapy. At the time of the August 2019 termination hearing, she had not completed the therapy program and, indeed, she was not participating in any individual counseling. After DB was born and came into care, the caseworker referred respondent to IMH services. Respondent attended the intake, but then never returned to participate in the IMH therapy with DB. Similarly, despite multiple referrals, respondent never completed the court-ordered requirement that she participate in a domestic violence program.
Respondent also failed to comply with the court-ordered parenting education. Disposition on the original petition regarding the older children occurred in July 2016. Respondent did not complete a parenting class until August 2017, and she only did so after multiple referrals. After DB came into care, respondent was ordered to retake parenting classes. The caseworker referred respondent to parenting classes three times, after which the worker never received any verification that respondent had completed the parenting program. Respondent claimed at the termination hearing that she was enrolled in parenting classes and that she had six sessions remaining. However, this claim was unverified, but more significantly, the children had been in care for more than three years and respondent had yet to successfully participate in and benefit from a parenting class.
While respondent did attend parenting time, she was frequently late, appearing anywhere from 15 minutes to an hour tardy. Moreover, despite intervention and redirection, she was not always appropriate with the children. She was heard cursing at the children, telling them to "shut-up," and making promises to them about when they could come home.
Housing also remained a barrier to reunification. During the three years the children were in care, respondent lacked suitable, stable housing. She did maintain housing for approximately 10 months, but it was unsuitable because it was not large enough to accommodate respondent and her four children. In any event, respondent lost this housing in April 2019, due to no fault of her own, and did not secure a new home. At the time of termination, respondent remained homeless, despite receiving referrals for housing vouchers, funds, and housing assistance.
To the extent that respondent did participate in services, she did not benefit therefrom. Despite assistance, respondent could not obtain and maintain housing and employment stability. Furthermore, she continued to maintain a relationship with Lloyd, the person who physically abused her sons. Respondent admitted that she saw Lloyd occasionally, but continued to assert that she was no longer in a relationship with him. However, the caseworker and others observed respondent and Lloyd together after visits and near bus stops. Lloyd also posted pictures of the two of them on social media that suggested that their romantic relationship continued. Even more compelling is that respondent became pregnant with Lloyd's son, DB. Respondent still continued to assert that she was not involved with Lloyd and claimed that the pregnancy was the result of a single indiscretion.
The evidence demonstrated that at the time of termination, more than three years after the children had come into care, respondent had yet to meaningfully address the barriers to reunification. She did not successfully participate in or complete any of the services. A parent's failure to comply with a court-ordered treatment plan is indicative of neglect and evidence that return of the child to the parent may cause a substantial risk of harm to the child's life, physical health, or mental well-being. In re Trejo, 462 Mich at 346 n 3; In re BZ, 264 Mich App 286, 300; 690 NW2d 505 (2004).
Moreover, there was clear and convincing evidence from which the court could conclude that respondent would not be able to remove the barriers to reunification anytime soon. The children had been in care for approximately 3-1/2 years. Respondent was in no better position to parent her children than when they were removed. Moreover, respondent was given an extraordinary amount of time to work toward reunification. Rather than take advantage of this additional time, respondent squandered the opportunity. It is clear that she lacked the motivation to improve her parenting skills and work toward reunification. She was unwilling to put her children's needs ahead of her own. Thus, it is unlikely that respondent will be able to successfully address the issues that precipitated the removal of her children. Accordingly, the trial court did not err when it found clear and convincing evidence to terminate respondent's parental rights pursuant to MCL 712A.19b(3)(c)(i), (g), and (j).
Next, respondent argues, in a cursory fashion, that the trial court erred by terminating her parental rights because petitioner failed to make reasonable efforts to reunite her and the children. We disagree. Respondent did not preserve this issue by raising it in the trial court; therefore, our review is for plain error affecting respondent's substantial rights. In re Utrera, 281 Mich App 1, 8; 761 NW2d 253 (2008).
In general, issues raised, addressed, and decided by the trial court are preserved for appellate review. In re TK, 306 Mich App 698, 703; 859 NW2d 208 (2014). However, in In re Frey, 297 Mich App 242, 247; 824 NW2d 569 (2012), this Court, relying on In re Terry, 240 Mich App 14, 27; 610 NW2d 563 (2000), held that "the time for asserting the need for accommodation in services is when the court adopts a service plan" and the issue is deemed unpreserved if a respondent "fail[s] to object or indicate that the services provided to them were somehow inadequate." Based on a review of the record, we note that respondent did not object to the services that were offered until closing arguments. Even then, respondent's objections were vague. Considering the holding in In re Frey, it would appear that this issue was not properly preserved. However, to the extent that this issue is preserved, the trial court did not clearly err by finding that reasonable efforts were in fact made to preserve and unify the family. --------
In general, before a court may contemplate termination of a parent's parental rights, the Department of Health and Human Services (DHHS) must make reasonable efforts to reunite the family. MCL 712A.19a(2). The purpose of the treatment plan is to facilitate the return of the children to their parents. In re Mason, 486 Mich 142, 156; 782 NW2d 747 (2010). DHHS's statutory duties to update a parent's treatment plan and provide the parent with necessary and relevant reunification services continue throughout the case. Id. "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).
As discussed earlier, foster care workers repeatedly referred respondent to a wide variety of services for three years. In many instances, multiple referrals were required before respondent made any effort to participate in the services. Respondent, on more than one occasion, was then granted additional time to work on removing the barriers to reunification. To the extent that respondent did participate in services, there is very little evidence that she benefited therefrom. Due to lack of ability or motivation, or both, respondent was not able to sustain any forward progress. Although the agency is required to make reasonable efforts to provide services to secure reunification, the parent has a commensurate responsibility to participate in the services offered. In re Frey, 297 Mich App 242, 248; 824 NW2d 569 (2012).
In support of her argument, respondent has identified only one service for which she claims no referral was made. She then asserts that this one omission by DHHS constituted the failure to make reasonable efforts. Respondent represents that DHHS failed to refer her for family therapy. She asserts that had therapy of this nature been pursued, the physical altercation between her and DP in July 2019 would not have occurred. However, respondent's argument is not supported by the record. Foster care worker Isaiah Miles testified that a referral for family therapy was made. Indeed, at one point, Miles requested that respondent's visits be extended with DP so that respondent could participate in family therapy at the Methodist House. However, respondent never started this service. Miles was not aware of the reason why respondent did not complete this referral. Based on the existing record, there is no evidentiary support for respondent's assertion that DHHS failed to refer her for family therapy.
Further, respondent has not explained how participation in family therapy would have yielded a different outcome. In re Fried, 266 Mich App 535, 543; 702 NW2d 192 (2005). While the July 2019 altercation with DP was noteworthy, it was not central to the trial court's findings. Moreover, there is little to suggest that had respondent participated in family therapy she would have completed the program and benefited from the treatment. Respondent had a pattern of not completing services. Indeed, in a similar vein, respondent was referred for IMH therapy to improve her relationship with her infant son DB. Respondent did nothing more than go to the initial intake appointment. Considering that respondent refused to participate fully in the treatment plan—indeed, she had a longstanding history of declining services—there is no indication that she would have fared better had additional or alternative services been offered.
Lastly, respondent challenges the trial court's finding that termination of her parental rights was in the children's best interests. We find no error in this regard.
"If the court finds that there are grounds for termination of parental rights and that termination of parental rights is in the child's best interests, the court shall order termination of parental rights and order that additional efforts for reunification of the child with the parent not be made." MCL 712A.19b(5). The 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 35, 42; 823 NW2d 144 (2012). 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 126, 131; 777 NW2d 728 (2009). 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 at 129.
The trial court did not clearly err when it found that termination of respondent's parental rights was in the children's best interests. More than a preponderance of the evidence established that respondent was unable to provide a safe and stable home environment for her children. Indeed, she was homeless at the time of the best-interest hearing. Respondent had no viable plan, and even she, herself, admitted that it would be several months before she would be in a position to parent her children. Further, there was compelling evidence that the children would be at risk in respondent's care. Despite respondent's representations to the contrary, she continued in a relationship with an individual who physically abused her two oldest sons. Moreover, she misrepresented this relationship to the court and caseworkers and she ultimately gave birth to this man's child two years after the older children were removed because respondent failed to protect them from this same man's abuse. Respondent's conduct demonstrated that she was inclined to put her own wants ahead of her children's needs.
It was also clear that termination of respondent's parental rights was the only avenue by which the children would achieve the stability and permanence that they desperately desired and required. The trial court considered each of the children's interests separately. Respondent's instability had taken the greatest toll on DP. This teenage child had assumed the role of parent to his siblings and even respondent. DP saved his allowance money to give to respondent and he brought her food during parenting time. DP felt responsible for his siblings and he worried about their well-being. DP's therapist explained that he yearned for structure, stability, and a family placement. He had developed a close bond with a former foster mother who had expressed an interest in adopting DP. 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.
Eleven-year-old TA was also struggling in the system. At the time of the August 2019 hearing, TA had been in a residential treatment facility for 18 months, after being removed from his foster home. Similar to his brother, TA suffered from attention deficit attention disorder, emotional impairments, and reading issues. He was also on medications. The child had special needs for which respondent was ill-equipped to manage. Termination of respondent's parental rights was the best avenue by which this child could eventually achieve some permanence, finality, and stability.
Ten-year old LA had been placed in the same licensed nonrelative foster home for 3½ years. LA was doing well in this home, was bonded with the caregivers, and the foster parents had expressed an interest in adopting the child. Similarly, 18-month-old DB had been placed in the same foster home for all but two weeks of his life. A bond existed between DB and the foster parents and they were willing to adopt DB. The fact that these two children were placed in loving homes that offered a chance at permanence, stability, and finality weighed in favor of termination of respondent's parental rights.
Notwithstanding the foregoing, respondent asserts that the existence of a bond weighed in favor of preserving her parental rights. However, other factors can outweigh the import of a bond. In re LE, 278 Mich App 1, 29-30; 747 NW2d 883 (2008), abrogated on other grounds as recognized by In re Long, 326 Mich App 455; 927 NW2d 724 (2018). In this case, there was overwhelming evidence that respondent was unable and unwilling to protect her children from known risks of harm. Further, while respondent had been offered a multitude of services, she failed to benefit from the services. Respondent was unable to demonstrate that she had gained the necessary skills and insight to properly and safely parent her children.
Respondent also argues that the trial court failed to afford proper weight to the opinions of respondent's treating therapist, Jacqueline Dunn-Bell. We disagree. Dunn-Bell met with respondent on 16 occasions between March 7, 2019 and June 29, 2019. There was no evidence that respondent was continuing to treat with Dunn-Bell at the time of the August and September 2019 termination hearings. Dunn-Bell opined that respondent had gained insight into her poor decision-making in the past. She also believed that respondent had improved her ability to work on a treatment plan in the future. Dunn-Bell's testimony was less encouraging regarding respondent's decision-making ability at the time of the best-interest hearing. Indeed, she appeared to carefully craft her responses. When asked if respondent was capable of making logical and responsible decisions relative to a reunification plan, Dunn-Bell replied, "I think that she's able to continue to develop the ability to do that, yes." When asked if respondent was "consistent in continuing to make progress," Dunn-Bell replied, "She has been consistent in continuing to work on making progress." Dunn-Bell would not admit that respondent was making better decisions; instead, she clarified that respondent was "working on making better decisions." None of these statements are a resounding endorsement of respondent's decision-making abilities at the time of termination. That is, Dunn-Bell did not appear particularly confident that respondent had progressed to the point where she was capable of making appropriate parenting decisions. Dunn-Bell was clearly of the opinion that respondent had more work to do. Dunn-Bell admitted that there remained barriers to reunification, including housing, outstanding traffic tickets, the need to gain more insight, the need to improve her behavior, and the need to address domestic violence issues. After reviewing the record, it is clear that Dunn-Bell's testimony was not particularly helpful to respondent's position. In any event, this Court will defer to the trial court regarding the weight to be given a witness's testimony. 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 at 337.
Considering respondent's history, the children's ages, the advantage of foster homes over respondent's home, the possibility of adoption, and the need for permanence, stability, and finality, the evidence weighed overwhelmingly in favor of termination of respondent's parental rights. Accordingly, the trial court did not clearly err when it determined that termination of respondent's parental rights was in the children's best interests.
Affirmed.
/s/ Kathleen Jansen
/s/ Deborah A. Servitto
/s/ Michael J. Riordan