Opinion
Nos. 336163 No. 336228
07-18-2017
In re DORSEY, Minors.
UNPUBLISHED Wayne Circuit Court Family Division
LC No. 14-517626-NA Before: GADOLA, P.J., and METER and FORT HOOD, JJ. PER CURIAM.
In these consolidated appeals, respondents appeal as of right the circuit court's order terminating their parental rights to their two minor children under MCL 712A.19b(3)(c)(i) and (g). We affirm.
I. STATUTORY GROUNDS FOR TERMINATION
Both respondents challenge the circuit court's finding that the statutory grounds for termination were established by clear and convincing evidence. Petitioner, the Department of Health and Human Services, bears the burden of proving a statutory ground for termination by clear and convincing evidence. MCL 712A.19b(3); In re Trejo, 462 Mich 341, 350; 612 NW2d 407 (2000). We review for clear error a circuit court's decision to terminate parental rights. MCR 3.977(K). A decision qualifies as 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." In re JK, 468 Mich 202, 209-210; 661 NW2d 216 (2003). Clear error signifies a decision that strikes us as more than just maybe or probably wrong. Trejo, 462 Mich at 356. "We give deference to the trial court's special opportunity to judge the credibility of the witnesses." In re HRC, 286 Mich App 444, 459; 781 NW2d 105 (2009).
A. MCL 712A.19b(3)(c)(i)
Clear and convincing evidence supports the circuit court's termination of respondents' parental rights under MCL 712A.19b(3)(c)(i). A circuit court may terminate parental rights under MCL 712A.19b(3)(c)(i) if clear and convincing evidence establishes the following:
(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.
Approximately 21 months had elapsed between the initial dispositional hearing and the termination hearing. In December 2014, the circuit court exercised jurisdiction over the children on the basis of respondents' homelessness and respondent-father's untreated mental health issues. In January 2015, the court ordered respondent-mother to participate in individual therapy, complete parenting classes, maintain suitable housing and an income source, attend supervised parenting times, and remain in regular contact with the caseworker. The court ordered respondent-father to participate in a psychiatric evaluation, comply with the recommendations of the evaluation, attend individual therapy, complete parenting classes, complete random drug screens, maintain suitable housing and an income source, participate in supervised parenting times, and remain in contact with the caseworker. In July 2015, the circuit court also ordered respondent-father to participate in mental health services.
The principal issue that remained unresolved throughout the case was respondent-father's untreated mental health condition, and respondent-mother's unwillingness to plan for the children independent of respondent-father or acknowledge respondent-father's need for mental health treatment. Respondent-father's June 2015 psychiatric evaluation recommended, inter alia, that he participate in mental health services and support from a mental health organization, visit a psychiatrist to address a prior diagnosis of psychosis, "benefit from an atypical neuralistic [medication] . . . to address his delusional state," attend physical and neurological examinations, and participate in individual therapy. The caseworker testified that she advised respondents on a weekly basis regarding the available mental health services recommended by the psychiatric and psychological evaluations. In December 2015, the caseworker attempted to arrange for mental health services, but the agency responded that respondent-father did not qualify for their services because he denied that he required mental health assistance. Respondent-father's individual therapist recommended that he participate in "in-patient psychiatric services." The caseworker again discussed respondent-father's need for psychiatric services with respondents, but respondent-father opined that he was stable and did not require services. Since the child protective proceeding began, respondent-father had not completed any mental health services or acknowledged having any mental health impediments.
The caseworker testified that respondent-father failed to complete individual therapy, despite being provided with referrals for at least three counseling sessions. In April 2016, respondent-father's counseling agency terminated therapy and refused to provide additional referrals on the basis that respondent-father had exhibited bizarre behaviors and refused to pursue mental health services. Between April and July 2016, respondent-father enrolled in individual therapy at a different agency that he located on his own. Although respondent-father regularly attended individual therapy sessions at the new agency, he made no progress because he had not identified any attainable treatment goals.
Clear evidence demonstrated that respondent-father's untreated mental health issues affected his ability to properly care for the children. Respondent-father completed parenting classes, but had not demonstrated any benefit from the course. In November 2014, the circuit court suspended respondent-father's parenting times after he made statements in the children's presence concerning "bomb making [and] ISIS." The circuit court allowed respondent-father only telephonic contact with the children until approximately December 2015. During respondent-father's supervised parenting times between December 2015 and October 2016, he usually paced the floor. On December 18, 2015, respondent-father inappropriately stated that "crackers . . . send . . . the N word to do their dirty work," and he ignored the caseworker's repeated efforts to redirect him. Before the next supervised parenting time on December 23, 2015, the caseworker prepared a plan that recommended proper interactions for respondent-father and the children, including how to discuss race in an age appropriate manner and redirect inappropriate conversations. The caseworker and respondents discussed the plan in December 2015, but the parenting times "continue[d] to go downhill." During every parenting time, respondent-father uttered "something inappropriate . . . in front of the children." He repeatedly called "people crackers, n*****s, morons, clowns, [and] imbeciles," mentioned alleged infidelities of respondent-mother, and referred to felonies committed by family members. Respondent-mother attempted to redirect respondent-father's inappropriate conduct on only two occasions, both of which were unsuccessful. The caseworker testified that respondent-father's inappropriate behavior in front of the children had recently caused the children to mistreat respondent-mother.
The caseworker testified that respondent-father also failed to comply with the treatment-plan requirement that he submit weekly random drug screens. He submitted some screens that were positive for marijuana, but stopped attending drug screens in February 2016. Respondent-father failed to complete substance-abuse therapy. The therapist terminated therapy because respondent-father sent "her inappropriate text messages at erratic times of the evening[.]" Respondent-father also routinely interacted poorly with the caseworker, especially in the weeks before the termination hearing. The caseworker described the interactions as lacking "anything satisfying or fruitful" and very hostile. Respondent-father sent the caseworker inappropriate voicemail and text messages, which included threats to "murder" the caseworker's career.
The caseworker questioned respondent-father's capacity to safely care for the children because he lacked mental stability or the capacity to handle frustration. In light of respondent-father's history of mental health issues, a psychiatrist concluded that respondent-father had a very poor prognosis of improved behavior if he did not participate in mental health treatments. Throughout respondent-father's testimony at the termination hearing, he repeatedly uttered statements that were unresponsive to the questions asked. Respondent-father denied that he had mental health or substance abuse problems.
The caseworker and her supervisors warned respondent-mother that if she stayed with respondent-father, she would have no hope of reuniting with the children. However, respondent-mother did not believe that respondent-father "had a mental issue" and she did not plan to separate from respondent-father. She denied that she ever saw respondent-father inappropriately interact with the children. The caseworker recommended that the circuit court terminate respondent-mother's parental rights because, although she complied with most requirements of her treatment plan, she planned to care for the children with the assistance of respondent-father, who could not provide the children with proper care. The caseworker opined that respondent-mother could not protect the children from respondent-father's verbal abuse, primarily because she repeatedly denied that he had any mental health issues.
The evidence regarding respondent-father's untreated mental health issues and respondent-mother's unwillingness to plan separately from respondent-father or acknowledge his mental health issues continued to exist at the time of the termination hearing. Because respondent-father refused to participate in mental health treatment and denied having any mental health issues needing treatment, and because the evidence clearly and convincingly established that respondent-mother intended to co-parent the children with respondent-father, and failed to recognize or acknowledge that he suffered from a serious, untreated mental health condition that affected his ability to properly care for the children, there was no reasonable likelihood that this barrier to reunification would be rectified within a reasonable time. See In re Dahms, 187 Mich App 644, 648; 468 NW2d 315 (1991). The children had spent approximately 21 months as temporary court wards, and they urgently needed permanency and stability. See In re LE, 278 Mich App 1, 28; 747 NW2d 883 (2008). Accordingly, the circuit court did not clearly err by finding that clear and convincing evidence supported terminating respondents' parental rights under MCL 712A.19b(3)(c)(i).
B. MCL 712A.19b(3)(g)
A circuit court can terminate a respondent's parental rights under MCL 712A.19b(3)(g) if the court finds by clear and convincing evidence that "[t]he parent, without regard to intent, 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." Abundant evidence established respondents' inability to protect the children from respondent-father's serious, untreated mental health issues, and the unlikelihood that they might do so within a reasonable time.
This case arose in September 2014, after respondents and the children were found living in a vehicle. Respondent-father had a mental health history that included a diagnosis of schizoaffective disorder, but he acknowledged that he had not pursued mental health treatment since 2010. As summarized in the discussion regarding the propriety of termination under MCL 712A.19b(3)(c)(i), clear and convincing evidence established that the concerns regarding respondent-father's untreated mental health issues, and respondent-mother's inability to manage respondent-father's mental health issues, still existed at the time of the termination hearing. Respondent-father was unwilling to pursue mental health treatment, or even acknowledge having mental health issues, and respondent-mother was unwilling to plan for the children without the assistance of respondent-father. She also denied that respondent-father suffered from a serious, untreated mental health condition that affected his ability to properly care for the children. Accordingly, there was no reasonable likelihood that respondents would be able to provide proper care and custody within a reasonable time. See Dahms, 187 Mich App at 648. The circuit court did not clearly err by finding clear and convincing evidence supported terminating respondents' parental rights under MCL 712A.19b(3)(g).
II. REASONABLE EFFORTS TO REUNIFY THE FAMILY
In Docket No. 336163, respondent-mother argues that petitioner failed to make reasonable efforts to reunify her with her children by failing to refer her to marital counseling. Because respondent-mother did not challenge the adequacy of the services in the trial court, this issue is unpreserved. In re Frey, 297 Mich App 242, 247; 824 NW2d 569 (2012). We review unpreserved issues only to determine whether a plain error affected an appellant's substantial rights. In re Williams, 286 Mich App 253, 274; 779 NW2d 286 (2009).
Petitioner has "an affirmative duty to make reasonable efforts to reunify a family before seeking termination of parental rights. MCL 712A.18f(3)(b) and (c); MCL 712A.19a(2)." In re Hicks/Brown, ___ Mich ___, ___; 893 NW2d 637 (2017). The record establishes that respondent-mother received services sufficient to address the potential parental shortcomings that existed when the circuit court exercised jurisdiction over the children. But even after participating in services for approximately 21 months, respondent-mother planned to care for the children with respondent-father, and she failed or was unwilling to recognize that respondent-father had a serious, untreated mental health condition. Respondent-mother suggests that "family or marriage counseling . . . would have, perhaps, cured the problem regarding the alleged inappropriate behavior or speech by" respondent-father. However, she has not persuasively shown that the services she received, which included individual therapy, were insufficient to enlighten her regarding respondent-father's mental health problems. Furthermore, she has failed to demonstrate that marriage or family counseling would adequately address respondent-father's serious mental health issues. Respondent-mother has failed to demonstrate that petitioner's alleged failure to provide family or marital counseling constituted plain error affecting substantial rights.
III. BEST INTERESTS
Lastly, respondents argue that the circuit court erred by finding that termination of their parental rights was in the children's best interests, primarily because the children resided with a relative at the time of the termination hearing. "Even if the trial court finds that the [petitioner] has established a ground for termination by clear and convincing evidence, it cannot terminate the parent's parental rights unless it also finds by a preponderance of the evidence that termination is in the best interests of the children. MCL 712A.19b(5)." In re Gonzales/Martinez, 310 Mich App 426, 434; 871 NW2d 868 (2015). We review for clear error a circuit court's decision that termination of parental rights is in a child's best interests. MCR 3.977(K); Trejo, 462 Mich at 356-357.
In In re White, 303 Mich App 701, 713; 846 NW2d 61 (2014), this Court summarized:
The trial court should weigh all the evidence available to determine the children's best interests. . . . [T]he court should consider a wide variety of factors
that may include 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. [Quotation marks and citations omitted.]
The circuit court did not clearly err by finding that termination of respondents' parental rights served the children's best interests. Testimony reflected that a loving bond sometimes existed between respondents and the children. The children expressed their desire to return to respondents' care. However, respondent-father's untreated mental health issues caused him to repeatedly make inappropriate statements in the children's presence. Respondent-father also failed to make any progress toward improving his mental health while the children spent 21 months in foster care. Respondent-mother had sufficient parenting skills, but she routinely failed to redirect respondent-father's inappropriate statements during parenting times. Further, she planned to co-parent the children with respondent-father and denied that respondent-father suffered from mental health problems. The young children required permanency and stability after living in foster care for approximately 21 months. The children's placement in foster care met the children's needs, and the foster parent, a paternal aunt, planned to adopt the children.
Respondents also challenge the circuit court's best-interest determination on the grounds that the court failed to separately address the children's best interests and failed to consider the children's placement with a relative at the time of the termination hearing. In support of their argument, respondents both cite In re Olive/Metts, 297 Mich App 35, 42-43; 823 NW2d 144 (2012) (quotation marks and citations omitted):
Although in most cases it will be in the best interests of each child to keep brothers and sisters together . . . , if keeping the children together is contrary to the best interests of an individual child, the best interests of that child will control. . . . It is, therefore, incumbent on the trial court to view each child individually when determining whether termination of parental rights is in that child's best interests.
* * *
However, because a child's placement with relatives weighs against termination under MCL 712A.19a(6)(a), the fact that a child is living with relatives when the case proceeds to termination is a factor to be considered in determining whether termination is in the child's best interests. . . . 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-interest determination and requires reversal.
We reject respondents' contention that the circuit court erred by failing to separately address the children's best interests. This "Court's decision in In re Olive/Metts stands for the proposition that, if the best interests of the individual children significantly differ, the trial court should address those differences when making its determination of the children's best interests." White, 303 Mich App at 715-716. In this case, the circuit court considered the close ages of the children, the children's bond with respondents, and the children's strong need for permanency and stability after having lived in foster care for approximately 21 months. Respondents fail to identify any significant differences of the children that the circuit court failed to consider. Therefore, the circuit court was not required to separately consider each child's best interests.
Respondent-father also asserts that the circuit court should have placed the children in a "temporary wardship" or a "subsidized guardianship" with their aunt. The court concluded, in relevant part, as follows:
The Court considers relative placements in making a determination regarding the child's best interests . . . . As indicated above, the children are each placed with a relative. The children are too young . . . to implement a permanency plan other than adoption, as other plans will not provide the stability, finality and permanency needed. In addition, the relative caregivers have expressed a willingness to adopt the children. . . . [T]he Court finds termination of parental rights to be in the best interests of the children, notwithstanding the relative placements.
Contrary to respondents' arguments, the circuit court took into account the children's relative placement at the time of the termination hearing. The caseworker recommended terminating respondents' parental rights irrespective of the children's relative placement because termination would best serve the children's interests in having "a consistent place to stay where they're safe, secure, [and] their emotional, physical and mental health needs are addressed consistently." The caseworker also testified that a permanent adoption served the children's interests in permanency better than a guardianship with the paternal aunt. The circuit court did not clearly err by finding that the children's anticipated adoption by their aunt served their best interests better than some form of guardianship.
Affirmed.
/s/ Michael F. Gadola
/s/ Patrick M. Meter
/s/ Karen M. Fort Hood