Opinion
No. 350486
05-21-2020
In re AUSTIN, Minors.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Shiawassee Circuit Court Family Division
LC No. 10-012798-NA Before: RONAYNE KRAUSE, P.J., and SERVITTO and REDFORD, JJ. PER CURIAM.
Respondents appeal as of right the order terminating their parental rights to their children MA and KA, under MCL 712A.19b(3)(b)(i) (physical injury to child or sibling and reasonable likelihood of abuse or injury in the foreseeable future if returned home) and (j) (reasonable likelihood child will be harmed if returned to parent). We affirm.
I. BACKGROUND
Seven-year-old MA and five-year-old KA have been removed from the care of respondents four times over the past six years based on allegations of excessive physical abuse. In 2013, because of extensive bruising to MA who was one year old, Child Protective Services (CPS) removed her. Respondents received services to enable them to develop suitable parenting skills. In 2016, MA suffered extensive bruising again resulting in MA and KA's removal. The Department of Health and Human Services (DHHS) provided respondents services and the children were returned to respondents on November 17, 2017. During February 2018, new allegations of severe physical abuse and improper supervision were made against respondents regarding their care of MA and KA. Termination proceedings were held but the trial court ruled that termination did not serve the children's best interest, so the children were returned to respondents and the DHHS provided services to respondents to enable them to undergo individual and family therapy and to work on positive parenting skills to develop techniques for handling the children without resorting to physical discipline.
This case commenced four months after the closure of the last case when CPS received complaints that each respondent had again physically abused MA. While at the home providing services, counselor Jane Blossey observed respondent-father aggressively, physically discipline an unruly MA by holding her in a corner. The next day MA told her kindergarten teacher that respondent-mother choked her the night before. When the CPS investigation was substantiated, the DHHS filed the instant petition seeking termination of respondents' parental rights.
II. REASONABLE EFFORTS
Respondents argue that the trial court erred by terminating their parental rights because the DHHS failed to make reasonable efforts to reunify the family. We disagree.
"[I]ssues that are raised, addressed, and decided by the trial court are preserved for appeal." In re TK, 306 Mich App 698, 703; 859 NW2d 208 (2014). Respondents did not argue in the trial court that the DHHS failed to make reasonable efforts to reunify. Accordingly, this issue is unpreserved for appeal because respondents failed to raise the specific issue of reasonable efforts below.
Unpreserved issues are reviewed for plain error affecting substantial rights. In re Utrera, 281 Mich App 1, 8-9; 761 NW2d 253 (2008). "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." In re Smith Trust, 274 Mich App 283, 285-286; 731 NW2d 810 (2007) (quotation marks and citations omitted). "[A]n error affects substantial rights if it caused prejudice, i.e., it affected the outcome of the proceedings." In re Utrera, 281 Mich App at 9.
"Generally, reasonable efforts must be made to reunite the parent and children unless certain aggravating circumstances exist." In re Moss, 301 Mich App 76, 90-91; 836 NW2d 182 (2013). "However, the petitioner is not required to provide reunification services when termination of parental rights is the agency's goal." Id. at 91 (quotation marks and citation omitted). The record reflects that before this case, during respondents' previous cases where CPS and the DHHS intervened, numerous services were provided to respondents. Respondents failed to benefit from the services. The children were reunited with respondents but the physical abuse continued resulting in the DHHS's filing the petition in this case which sought termination of respondents' respective parental rights. Because the original petition in this case requested termination of parental rights, petitioner had no obligation to provide respondents reunification services. Accordingly, the trial court did not err when it terminated respondents' parental rights.
III. EVIDENCE FROM PREVIOUS PROCEEDINGS
Respondents argue that the trial court erred when it relied on evidence not admitted in the record in this case to terminate respondents' parental rights. "[I]ssues that are raised, addressed, and decided by the trial court are preserved for appeal." In re TK, 306 Mich App at 703. Respondents did not argue in the trial court that it relied on inadmissible evidence when making its determination. Thus, this issue is not preserved for appeal. We review unpreserved evidentiary issues for plain error affecting substantial rights. In re Utrera, 281 Mich App at 8-9. An error affects substantial rights if it affects the outcome of the proceedings. Id. at 9.
In this case, the trial court "reflected on the history of this file," and relied on evidence presented in prior CPS cases when making its termination decision. "[C]hild protective proceedings are viewed as one continuous proceeding." In re Hudson, 294 Mich App 261, 264; 817 NW2d 115 (2011). However, this principle applies to the proceedings occurring during a particular case, not all proceedings ever conducted that concern the parties. Id. The evidence of prior proceedings was not part of the record of this case and the trial court, therefore, erred in considering it. However, the record reflects that petitioner presented sufficient evidence to support termination without consideration of the nonrecord evidence. In In re Utrera, this Court upheld a termination despite consideration of "improperly admitted hearsay" because the respondent's own testimony sufficed to prove the ground for termination by clear and convincing legally admissible evidence. In re Utrera, 281 Mich App at 23.
In this case, the record reflects that admissible clear and convincing evidence established statutory grounds for termination. Two doctors testified that MA's body had a significant number of suspicious bruises that suggested physical abuse. MA also disclosed physical abuse to the Child Advocacy Center interviewer, her kindergarten teacher, and one of the examining doctors. This evidence, all legally admissible, clear and convincing evidence established the existence of statutory grounds for termination of respondents' rights. Accordingly, although the trial court plainly erred, such error does not warrant reversal because respondents cannot establish that it affected the outcome of the proceedings.
IV. STATUTORY GROUNDS
Respondents argue that the trial court clearly erred by finding that clear and convincing evidence established statutory grounds for termination. We disagree.
Parental rights may be terminated by the trial court if it finds by clear and convincing evidence at least one of the statutory grounds for termination set forth in MCL 712A.19b(3). In re Miller, 433 Mich 331, 344-345; 445 NW2d 161 (1989). We review for clear error the trial court's determination of statutory grounds under MCL 712A.19b(3) for termination of parental rights. MCR 3.977(K); In re VanDalen, 293 Mich App 120, 139; 809 NW2d 412 (2011). "The clear error standard controls our review of both the court's decision that a ground for termination has been proven by clear and convincing evidence and, where appropriate, the court's decision regarding the child's best interest." In re Williams, 286 Mich App 253, 271; 779 NW2d 286 (2009) (quotation marks and citation omitted). A finding is clearly erroneous if, "although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been made." Id. (quotation marks and citation omitted). Regard must "be given to the special opportunity of the trial court to judge the credibility of the witnesses who appeared before it." In re Ellis, 294 Mich App 30, 33; 817 NW2d 111 (2011).
In this case, the trial court determined that clear and convincing evidence established the existence of statutory grounds for termination under MCL 712A.19b(3)(b)(i) and (j). MCL 712A.19b(3)(b)(i) provides:
(b) The child or a sibling of the child has suffered physical injury or physical or sexual abuse under 1 or more of the following circumstances:
(i) The parent's act caused the physical injury or physical or sexual abuse and the court finds that there is a reasonable likelihood that the child will suffer from injury or abuse in the foreseeable future if placed in the parent's home.
Clear and convincing evidence in this case established that respondents subjected MA to repeated physical abuse. Dr. Jon Paget, a hospital emergency room physician, examined MA in the emergency room and found that her bruises were concerning and suspicious for child abuse. MA presented with physical evidence of trauma from pressure applied to her neck and in a fold of her armpit. Dr. Stephan Guertin, a child abuse expert with 34 years of experience, examined MA and documented 54 bruises on her body, which in his expert opinion constituted a "phenomenal number of bruises" to find on a child. Additionally, he found that, while some bruises were in typical accident locations, other were not.
MA disclosed to her kindergarten teacher that respondent-mother choked her. MA also disclosed to both Dr. Guertin and a Child Advocacy Center interviewer that respondents hit her with a paddle. Dr. Guertin's examination found suspicious, clustered lines of bruises on the lateral aspect of MA's leg. Further, during a therapy session at the home, Blossey observed respondent-father excessively restraining MA in a corner by pressing her into it with his arm and leg.
In this case, clear and convincing evidence established how respondents treated MA. The trial court could appropriately consider that evidence for determination of how they may treat KA. "Evidence of how a parent treats one child is evidence of how he or she may treat the other children." In re Hudson, 294 Mich App 261, 266; 817 NW2d 115 (2011). The physical abuse of which respondents subjected MA established how they likely would subject KA to similar abuse. Moreover, under MCL 712A.19b(3)(b)(i) termination is appropriate if a sibling of a child suffered physical injury.
Finally, under MCL 712A.19b(3)(b)(i) there must be a reasonable likelihood that the child will suffer from injury or abuse in the foreseeable future if the child is returned home. MA had been home for only a few months after being returned to respondents' care and custody when she again suffered physical abuse from respondents. The record established that MA would likely suffer further injury and abuse if returned home. KA also faced similar risk of harm. Therefore, the trial court did not clearly err by determining that clear and convincing evidence established statutory grounds for termination of respondents' respective parental rights under MCL 712A.19b(3)(b)(i).
V. BEST INTERESTS
Respondents argue that the trial court erred when it determined that termination of respondents' parental rights served the children's best interests because the court failed to consider MA's preference and other best-interest factors. We disagree.
We review for clear error a trial court's decision that termination is in a child's best interests. In re Olive/Metts, 297 Mich App 35, 40; 823 NW2d 144 (2012). "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 BZ, 264 Mich App 286, 296-297; 690 NW2d 505 (2004) (citations omitted). The lower court must determine whether termination of parental rights is in a child's best interest using the preponderance of the evidence standard. In re Moss, 301 Mich App at 90.
Respondents argue that MCL 712A.19a(3) required the trial court to obtain MA's view on the termination matter. We disagree because that statutory provision pertains to permanency planning hearings and not a termination proceeding as held in this case. Respondents also incorrectly argue that MCL 712A.17d(2), which concerns resolution of differing positions between a child and the child's lawyer guardian ad litem, required the trial court to solicit MA's views on termination. That statutory provision, however, is inapplicable because the children and their lawyer guardian ad litem did not dispute what served the children's best interests in this case. The trial court had no obligation to inquire regarding MA's position on termination.
Respondents next argue that the trial court failed to consider some relevant best-interest factors when making its best-interest determination. We disagree.
MCL 712A.19b(5) provides that the trial court shall terminate parental rights if it "finds that there are grounds for termination of parental rights and that termination of parental rights is in the child's best interests[.]" "Best interests are determined on the basis of the preponderance of the evidence." In re LaFrance Minors, 306 Mich App 713, 733; 858 NW2d 143 (2014) (citation omitted). The focus must be on the child, rather than the parent. In re Moss, 301 Mich App at 87. A trial court may consider evidence introduced by any party and consider the evidence on the whole record to determine whether termination is in a child's best interests. In re Trejo, 462 Mich 341, 353; 612 NW2d 407 (2000). To determine whether termination serves a child's best interests, the trial court should consider a variety of factors, 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. 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, 713-714; 846 NW2d 61 (2014) (quotation marks and citations omitted).]
In In re VanDalen, 293 Mich App 120, 141-142; 809 NW2d 412 (2011), a similar case involving physical abuse, this Court affirmed the trial court's decision that termination served the children's best interest because the evidence established that the children would not be safe in the respondents' care and the children were doing well in foster care. This Court explained that, "[g]iven that the children's safety and well-being could not reasonably be assured in light of the past severe abuse of the children while in respondents' care, which remained unresolved, and that the children were thriving in the care of their foster parents, the court did not clearly err by finding that termination of respondents' parental rights was in the children's best interests."
The record reflects that the trial court considered the record evidence and appropriately weighed the applicable best-interest factors. A preponderance of the evidence established that a reasonable likelihood of harm existed if the children were returned to respondents. Respondents lacked appropriate parenting skills and physically abused the children. Evidence established that respondents were hostile to changing their behavior for the betterment of the children. After removal, the children did well in foster care and their behaviors were improving. The trial court correctly found that the children needed permanency and stability. Respondents failed to provide the children the stability and loving environment in which to thrive. Foster care provided the children a safe environment. The record indicates that the relevant factors weighed in favor of termination of respondents' parental rights. The trial court, therefore, did not clearly err by finding that termination of respondents' parental rights served the children's best interests.
Affirmed.
/s/ Amy Ronayne Krause
/s/ Deborah A. Servitto
/s/ James Robert Redford