Opinion
No. 346159
06-18-2019
In re V. L. BROWN, II and N. J. BROWN, Minors.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Calhoun Circuit Court Family Division
LC No. 2015-002613-NA Before: METER, P.J., and JANSEN and M. J. KELLY, JJ. PER CURIAM.
Respondent mother appeals as of right the trial order terminating her parental rights to her sons, VLB and NJB, under MCL 712A.19b(3)(a)(ii) (desertion for 91 days or more), (c)(i) (conditions that led to adjudication continue to exist), (g) (failure to provide proper care and custody), and (j) (reasonable likelihood of harm if children returned to parent's home). We affirm.
The parental rights of respondent father were terminated in the same order; however, he has not filed an appeal. --------
This case arises from the removal of the children from respondent mother in October 2016, when she was incarcerated, and had left the children without proper care and supervision. When respondent mother was released from jail, she was offered a treatment plan by petitioner, complied with some of the services, and visited the children. However, when an active warrant was out for her arrest for violation of probation of her previous conviction, she stopped participating in services, and was incarcerated again in January 2018. She failed to complete services while she was incarcerated. Thus, a petition to terminate respondent mother's parental rights was filed, and an evidentiary hearing was held. The court determined that statutory grounds existed to terminate respondent mother's parental rights, and termination was in the best interests of the children. Respondent mother does not challenge the trial court's findings of statutory grounds on appeal.
Rather, respondent mother argues that the trial court erred when it determined that termination was in the best interests of the children because it failed to consider relative placement with a maternal cousin, who was capable of caring for the children, and placement with the maternal cousin was in the children's best interests. We disagree.
A trial court must order the termination of a respondent's parental rights if the petitioner establishes a statutory ground for termination by clear and convincing evidence, and the trial court finds by a preponderance of the evidence based on the record as a whole that termination is in the child's best interests. In re White, 303 Mich App 701, 713; 846 NW2d 61 (2014). The trial court's best interests determination is reviewed for clear error. Id. " 'A finding is clearly erroneous if, although there is evidence to support it, we are left with a definite and firm conviction that a mistake has been made.' " In re Schadler, 315 Mich App 406, 409; 890 NW2d 676 (2016), quoting In re HRC, 286 Mich App 444, 459; 781 NW2d 105 (2009).
MCL 712A.19b(5) provides, "[i]f 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." The prosecution must prove that termination is in the child's best interests by a preponderance of the evidence. In re Schadler, 315 Mich App at 408 (citations omitted). A trial court must weigh all of the evidence in making a best interests determination. In re White, 303 Mich App at 713. This encompasses many 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,' " as well as "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." Id. (citations omitted). "In making its best-interest determination, the trial court may consider 'the whole record,' including evidence introduced by any party." In re Medina, 317 Mich App 219, 237; 894 NW2d 653 (2016) (citation omitted).
Pursuant to In re Mason, 486 Mich 142, 164; 782 NW2d 747 (2010), placement with a child's relative weighs against termination pursuant to MCL 712A.19a(6)(a). In this matter, the children were not actually placed with the maternal cousin, or any other relative, at the time of the evidentiary hearing. They were together, in the same foster care placement, for the entire time that they were in care. Evidence was presented at the evidentiary hearing regarding whether placement with the maternal cousin would be appropriate, and in the children's best interests. Respondent mother is essentially arguing on appeal that placement with the maternal cousin pursuant to a guardianship is in the children's best interests, rather than termination of respondent mother's parental rights.
A trial court's "failure to explicitly address whether termination is appropriate in light of the children's placement with relatives renders the factual record inadequate to make a best interests determination and requires reversal." In re Olive/Metts, 297 Mich App 35, 42; 823 NW2d 144 (2012), citing In re Mason, 486 Mich at 163-165, and In re Mays, 490 Mich 993, 994; 807 NW2d 307 (2012). The evidentiary hearing was initially adjourned because the court requested more information regarding relative placement. During the court's best-interest analysis, it asserted that petitioner's initial efforts towards relative placement were unacceptable; however, the maternal cousin was also obligated to make known her interest as placement for the children, which she failed to do for a long period of time. The court weighed the benefits of relative placement against the benefits of termination when it made its best interests determination. Thus, the court properly considered relative placement as part of the best interests determination, id., and any argument on appeal by respondent mother to the contrary is without merit.
The other factors to be considered in determining the children's best interests outweighed possible placement with the maternal cousin through a guardianship, rather than termination of respondent mother's parental rights. Although the children told their counselors that they loved respondent mother, there was no evidence of a bond between the children and respondent mother. In re White, 303 Mich App at 713. Respondent mother consistently visited the children after she was released from jail, until June 2017. The visits went well, and respondent mother was engaged with the children. However, beginning in July 2017, respondent mother stopped visiting the children because she was afraid that petitioner would call the police on an active warrant for her arrest. She was again arrested in January 2018, for violation of probation, and remained in jail throughout the course of the evidentiary hearing. At the time that the court made its best interests determination on July 27, 2018, respondent mother had not seen the children in over a year. Thus, there was a lack of a bond between the children and respondent mother, and this weighs in favor of termination of parental rights.
Additionally, there was no evidence of respondent mother's parenting ability. Id. The children were brought into care because they were left without proper supervision. Services were recommended and provided to respondent mother to strengthen her parenting ability, but she failed to complete them. She did not complete a psychological evaluation, a full course of parenting classes, or mental health counseling. She failed to maintain suitable housing or employment when she was not incarcerated. She stopped visiting the children months before she was incarcerated on a warrant for violating probation. She missed several drug screens, and tested positive for THC and heroin. She never completed a rehabilitation or outpatient drug treatment program. Thus, respondent mother's noncompliance with her treatment plan provides evidence that termination was in the children's best interests. See In re Foster, 285 Mich App 630, 633; 776 NW2d 415 (2009) (termination was in child's best interests where parents failed to substantially comply with treatment plans, demonstrating "their inability to provide minimally adequate care and structure" for the child).
" '[T]he focus at the best-interest stage has always been on the child, not the parent.' " In re Payne/Pumphrey/Fortson, 311 Mich App 49, 63; 874 NW2d 205 (2015) (quotation omitted, alteration in original). The children's need for permanency, stability, and finality, and their wellbeing while in care, was a major focus of the trial court's best interests determination. Therapist Kathleen Salas diagnosed NJB with an adjustment disorder because he was stressed by the uncertainty of his future. However, his outbursts decreased from learning the rules and structure of his foster care placement. The foster parent worked with NJB to maintain the coping skills that he learned in therapy. Although termination would cause NJB grief, Salas testified that termination would provide him with the consistency and stability that he needed, and a guardianship would not, because it was not a permanent placement. Salas recommended no contact between respondents and NJB as the best way for him to have stability. Therapist Julie Brown also testified that VLB experienced distress from adjusting to foster care, and frequently acted out in anger. He worried about what would happen to him, demonstrating his need for a permanent home.
NJB reported to Salas that he wanted to be placed with the maternal cousin because she was "family." But he also recognized the foster parent as "family." VLB said that he wanted to live with the maternal cousin because that was initially what respondent father wanted. However, VLB considered the foster parent "family," and felt relieved when respondent father agreed that it would be best for the children to remain with the foster parent.
The children did well in the foster home. They participated in sports, behaved at school, and received better grades. The children were placed together in the same foster home for the entire time that they were in care, and were very bonded to each other. Foster care worker Rochelle Brown testified that the foster home was a preadoptive placement, despite respondent mother's assertions to the contrary in her brief on appeal. Consideration of the advantages of the foster home is appropriate in a best interests determination. In re Foster, 285 Mich App at 635. Thus, termination was in the children's best interest because their need for permanency and stability would best be achieved through adoption.
As the court noted when it made its best interests determination, this does not prevent the maternal cousin from petitioning to adopt the children. However, termination was in the children's best interest, rather than a guardianship. Salas had no reason to believe that placement with the maternal cousin would be inappropriate. Julie Brown testified that VLB would interpret guardianship as another foster home, because it was not a permanent placement. A guardianship would not decrease VLB's anxiety, and the temporary nature of a guardianship was not beneficial to NJB. Salas testified that no further contact between NJB and respondents would be best to achieve finality and stability. And the maternal cousin testified that should the children be placed with her, she would not allow contact between the children and respondents unless ordered by the court. Thus, termination was in the children's best interests so that they could be adopted, either by the foster parent or the maternal cousin, and therefore obtain the permanency and stability that they needed.
The trial court did not clearly err in terminating respondent mother's parental rights because termination was proven to be in the children's best interests by a preponderance of the evidence.
Affirmed.
/s/ Patrick M. Meter
/s/ Kathleen Jansen
/s/ Michael J. Kelly