Opinion
No. 346491
06-18-2019
In re M. BAGGETT, Minor.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Berrien Circuit Court Family Division
LC No. 2017-000061-NA Before: K. F. KELLY, P.J., and FORT HOOD and REDFORD, JJ. PER CURIAM.
Respondent father appeals as of right the trial court's order terminating his parental rights to his daughter, MB, pursuant to MCL 712A.19b(3)(c)(i) and (j). We affirm.
I. BASIC FACTS
This case arises from child endangerment caused by respondent's substance abuse and criminality. In May 2017, petitioner received a complaint that the child's mother was using illegal substances and staying at various homes. Initially, the mother was uncooperative, but ultimately executed a power of attorney and safety plan that placed the child with the maternal grandmother. However, on June 7, 2017, the police found mother and respondent in a vehicle with syringes and a residue believed to be heroin and the ten-month old child was in the backseat. Respondent admitted to drug use. Consequently, the child was removed from the parents' care and eventually placed with her maternal uncle and aunt.
The mother's parental rights were also terminated, and she appealed in Docket No. 346942, but subsequently stipulated to the dismissal of her appeal.
Respondent was arrested for outstanding warrants and jailed. An agency agreement was prepared. While in jail, respondent's participation was limited to some counseling. Ultimately, respondent completed a psychological assessment that concluded he had unspecified personality disorder with narcissistic and anti-social features and cocaine use disorder. Consequently, it was recommended that he engage in individual counseling, parenting skills training, and random drug screens. Respondent obtained employment upon his release from jail and did engage in some visitation with the child, but neither parent appeared for the March 27, 2018 hearing because there were criminal charges pending and warrants for their arrest. Respondent was later arrested for retail fraud and tested positive for methamphetamine. He was sentenced to a prison term for retail fraud and probation violations. In prison, he participated in a work assignment and attended a violence prevention program, and his projected release date was October 2019. The child's mother could not care for the child because she was incarcerated for retail fraud, and her projected release date was also October 2019.
In October 2018, a hearing was held on the petition to terminate parental rights. The foster care supervisor requested termination of respondent's parental rights because of the lack of parenting skills and the mental health and substance abuse issues. The supervisor acknowledged that respondent had participated in some services, but he failed to make progress in addressing his issues because of his recurrent incarcerations. Although the child was placed with a relative, petitioner sought termination of parental rights in lieu of a guardianship because of the child's age, now nearly two-years old, the need for permanency, agency policy, and the relative's preference. Respondent preferred a guardianship and thought termination of his parental rights was not warranted in light of the fact that the child was taken care of by relatives. Before his most recent arrest, he acknowledged that he stopped attending counseling and visiting the child "obviously" because of the outstanding bench warrant. The court terminated the parental rights, and respondent now appeals.
II. TERMINATION OF PARENTAL RIGHTS
Respondent contends that the court improperly found that termination of his parental rights was in the child's best interests in light of the child's placement with relatives. We disagree. "To terminate parental rights, a trial court must find by clear and convincing evidence that at least one statutory ground under MCL 712A.19b(3) has been established." In re Moss, 301 Mich App 76, 80; 836 NW2d 182 (2013). "We review for clear error a trial court's finding of whether a statutory ground for termination has been proven by clear and convincing evidence." Id.; see also MCR 3.997(K). A trial court's decision regarding a child's best interests is also reviewed for clear error. In re Laster, 303 Mich App 485, 496; 845 NW2d 540 (2013). "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." Id. at 491 (citation omitted). This Court reviews de novo the trial court's selection, interpretation, and application of the relevant statutory provisions. In re Gonzales/Martinez, 310 Mich App 426, 431; 871 NW2d 868 (2015).
Although respondent does not contest the statutory grounds for termination, we note that MCL 712A.19b(3)(c)(i) (conditions that led to the adjudication continue to exist), and MCL 712A.19b(3)(j) (reasonable likelihood that child will be harmed if returned to the parent's home), were satisfied by clear and convincing evidence in light of the failure to address the substance abuse and criminality issues that caused the child to be placed in care. --------
"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). "[W]hether termination of parental rights is in the best interests of the child must be proved by a preponderance of the evidence." In re Moss, 301 Mich App at 90. All available evidence should be weighed to determine the children's best interests. In re White, 303 Mich App 701, 713; 846 NW2d 61 (2014). The best interest determination focuses on the child, rather than the parent. In re Schadler, 315 Mich App 406, 411; 890 NW2d 676 (2016). Factors to consider when determining the child's best interests include the child's bond to the parent, the parent's parenting skills, the child's need for permanency, stability, and finality, the advantages of a foster home over the parent's home, and the child's placement with relatives. Id. The trial court must explicitly address whether termination is appropriate when a child is placed with relatives. Id. However, a child's placement with relatives is a factor that the trial court must consider, and the placement will not weigh against termination when the parent fails to make necessary changes to address substance abuse and mental health issues. See In re Gonzales/Martinez, 310 Mich App at 434-435. The trial court has the discretion to consider whether a guardianship is in the child's best interest. In re COH, 495 Mich 184, 202; 848 NW2d 107 (2014).
The trial court did not clearly err by concluding that termination of parental rights was in the child's best interests. The then ten-month old child was brought into care because of respondent's drug problem. The drug problem led to respondent's arrest. Although respondent did participate in a psychological examination and visitation with the child, he began using drugs again and engaging in criminal acts upon his release from jail. Upon learning that there was a bench warrant for his arrest, respondent did not contact authorities to resolve the issue to accelerate reunification with his child, but discontinued his participation in visitation, counseling, and employment to avoid arrest. Respondent was incarcerated in prison at the time of the termination hearing and would possibly be released when the child was three-years old.
Contrary to respondent's allegation, the worker did not merely reject a guardianship because of agency policy, but cited the need for permanency, stability, the preference of the prospective adoptive parents, and the emotional component of adoption, including the child's name change. The court also contemplated whether a guardianship by relatives presented a viable alternative to termination of parental rights. However, the court rejected it, not because of agency policy, but cited the child's age, the need for permanence, and the potential disruption to the prospective adoptive parents.
Affirmed.
/s/ Kirsten Frank Kelly
/s/ Karen M. Fort Hood
/s/ James Robert Redford