Opinion
No. 335782
07-18-2017
In re G. L. FOUNTAIN, Minor.
UNPUBLISHED Kalamazoo Circuit Court Family Division
LC No. 2009-000020-NA Before: SAWYER, P.J., and HOEKSTRA and BECKERING, JJ. PER CURIAM.
Respondent-father appeals as of right the trial court order terminating his parental rights to the minor child, GLF, under MCL 712A.19b(3)(c)(i), (c)(ii), (g), and (j). We affirm.
The trial court also terminated the parental rights of the mother, but the mother is not a party to this appeal. --------
Respondent first argues that the agency failed to make reasonable efforts toward reunification and that this failure prohibits a finding of a statutory ground for termination. We disagree.
Respondent never argued in the trial court that reasonable efforts were not made toward reunification, and this issue is therefore unpreserved. "The time for asserting the need for accommodation in services is when the court adopts a service plan," and the issue is unpreserved if a respondent "fail[s] to object or indicate that the services provided to them were somehow inadequate." In re Frey, 297 Mich App 242, 247; 824 NW2d 569 (2012) (quotation marks and citation omitted).
This Court generally reviews a trial court's finding "that reasonable efforts were made to preserve and reunify the family" for clear error. In re Fried, 266 Mich App 535, 542-543; 702 NW2d 192 (2005). However, unpreserved issues are reviewed for plain error affecting substantial rights. In re Utrera, 281 Mich App 1, 8; 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 VanDalen, 293 Mich App 120, 135; 809 NW2d 412 (2011). "Generally, an error affects substantial rights if it caused prejudice, i.e., it affected the outcome of the proceedings. When plain error has occurred, [r]eversal is warranted only when the plain, forfeited error resulted in the conviction of an actually innocent defendant or when an error seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings independent of the defendant's innocence." In re Utrera, 281 Mich App at 9 (quotation marks and citations omitted; alterations in the original). "When reviewing the trial court's findings of fact, this Court accords deference to the special opportunity of the trial court to judge the credibility of the witnesses." In re Fried, 266 Mich App at 541.
"In general, petitioner must make reasonable efforts to rectify conditions, to reunify families, and to avoid termination of parental rights." In re LE, 278 Mich App 1, 18; 747 NW2d 883 (2008). "When a child is removed from a parent's custody, the agency charged with the care of the child is required to report to the trial court the efforts made to rectify the conditions that led to the removal of the child." In re Plump, 294 Mich App 270, 272; 817 NW2d 119 (2011). "Before the trial court enters an order of disposition, it is required to state whether reasonable efforts have been made to prevent the child's removal from the home or to rectify the conditions that caused the child to be removed from the home." Id. "Further, at each review hearing, the court is required to consider, among other things, [c]ompliance with the case service plan with respect to services provided or offered to the child and the child's parent, . . . whether the parent . . . has complied with and benefited from those services, and [t]he extent to which the parent complied with each provision of the case service plan, prior court orders, and an agreement between the parent and the agency." In re Mason, 486 Mich 142, 156; 782 NW2d 747 (2010) (quotation marks and citations omitted; alterations in the original). "While the DHS has a responsibility to expend reasonable efforts to provide services to secure reunification, there exists a commensurate responsibility on the part of respondents to participate in the services that are offered." In re Frey, 297 Mich App at 248. This includes the requirement that the respondent "sufficiently benefited from the services provided." Id.
Here, the fact that respondent's housing was not approved was attributable to respondent's conduct rather than the conduct of the agency. There was evidence that respondent lived at his grandmother's house consistently throughout the case when he was not incarcerated, that Caseworker Colleen Cochrane tried on multiple occasions over the course of a year to schedule a home study, and that respondent declined opportunities to have his residence inspected. At times he indicated that he wanted to obtain independent housing before having a home inspection. He never obtained independent housing and remained at his grandmother's residence without then securing a home study. In fact, he declined that opportunity on multiple subsequent occasions despite offers from Cochrane. Furthermore, respondent was arrested in September 2015 and faced potential jail time, which he did in fact serve, so his residence with grandmother became somewhat of a moot issue for a time due to respondent's own criminal activity. There was also a time when respondent lived with a woman who was determined to be inappropriate for parenting time. At another point, respondent told Cochrane not to come see the house because he wanted to find independent housing, but respondent also testified that he was focused on looking for employment rather than housing at the time.
Moreover, once the home was inspected and found to be appropriate, respondent failed to follow through to ensure that his uncle's identification was provided to the agency to allow the necessary background checks to be performed. The testimony showed that it was necessary for all of the people in living in the house to be cleared by the agency through criminal and central registry background checks. Respondent acknowledged that his uncle had a bedroom at the house, and multiple caseworkers testified about "the uncle" who lived at the house. The evidence supports the conclusion that respondent's uncle was living in the home, even if he also stayed with his girlfriend sometimes as respondent claimed. While respondent argues on appeal that the agency still could have attempted a background check because it knew the uncle's name and address, respondent cites no authority for the proposition that the agency had a duty to attempt a background check that would have potentially been incomplete or incorrect without having the necessary information that it required to conduct the appropriate background checks: namely the uncle's identification.
Additionally, while the evidence supports respondent's argument that there appeared to be some miscommunication as caseworkers changed within the agency regarding communications with the girlfriend of one of respondent's relatives, there is no evidence that there were miscommunications about the home study that delayed approval for respondent. To the extent that respondent claims the house was inspected at some earlier point by another worker, he never made this claim until after Cochrane had been trying to schedule a home study for over one year. There is no dispute that the home itself was appropriate. Rather, the issue was the inability to complete a background check for respondent's uncle. Thus, any delays were attributable to respondent's own lack of cooperation, and respondent did not uphold his own "commensurate responsibility" to participate in the efforts of the agency that were otherwise reasonable with respect to housing. In re Frey, 297 Mich App at 248.
With respect to respondent's argument that the caseworkers did not accommodate his work schedule in regards to GLF's various mental health appointments, there was evidence that respondent missed many of these appointments while he was unemployed with no work schedule to consider. There was also testimony that respondent was consistently informed of the times for these appointments, that he missed some because he forgot, and that he never indicated that he had work schedule conflicts with the appointment times. He was able to communicate about scheduling conflicts with his parenting time, and caseworkers accommodated his requests. There would be nothing for the service providers to accommodate if they were unaware that the appointments posed a conflict for respondent. Love Kiracofe testified that she tried to take respondent's schedule into account when scheduling GLF's appointments, that respondent missed appointments about which he had been informed, and that respondent had attended a few appointments related to GLF's services and special educational needs but none of the counseling or psychiatric appointments. Moreover, there was overwhelming evidence that respondent was difficult to contact because he kept changing his telephone number without informing people who needed to contact him, such as GLF's service providers. The evidence clearly supported the conclusion that respondent was given every opportunity to participate in GLF's mental health treatment and with his various service providers but failed to take responsibility for engaging in those opportunities. In re Frey, 297 Mich App at 248.
Next, there was no reason for the agency to provide drug testing, substance abuse services, or employment services when respondent was already receiving these services through his parole and probation. The evidence demonstrates that respondent had at least some success with these services: he obtained two jobs and did not have any negative drug tests for over one year. Notably, he did not tell his caseworker when he finished parole in July 2015, and he subsequently committed a new drug offense in September 2015. As a result of the later offense, he was still serving a probation term at the time of the termination hearing, and he was required to complete drug testing as part of his probation. Respondent does not cite any authority for the proposition that it is somehow improper for the agency to consider the fact that a parent is already being provided services through a parole or probation term. Probation Officer Marquay Smith testified that respondent, as part of his probation, was referred to cognitive behavioral therapy (CBT), had to complete random drug screens, and had to maintain and find employment. Caseworker Cochrane testified that respondent was receiving services through parole and probation such as CBT, drug screens, substance abuse counseling, and job classes. Cochrane testified that she did not duplicate these services. Respondent also testified that he used Michigan Works as he was seeking employment. The services offered through another avenue such as probation may properly be considered as part of the reasonable efforts made in a case. Cf. In re Fried, 266 Mich App at 542-543 (where the respondent argued "that he had engaged in numerous services without assistance from the foster care worker," the panel concluded that "[t]he fact that respondent sought treatment independently in no way compels the conclusion that petitioner's efforts toward reunification were not reasonable, and, more to the point, does not suggest that respondent would have fared better if the worker had offered those additional services to him").
Respondent was provided with services in the form of parenting time; case management; parenting class; services to address GLF's mental health treatment and in which respondent was invited and encouraged to participate; and programs through parole and probation that included drug screening, substance abuse counseling, and job classes. Respondent engaged in some of these services and not in others. The trial court did not plainly err by finding that reasonable efforts were made. In re VanDalen, 293 Mich App at 135.
Finally, there is no merit to respondent's argument that the lack of reasonable efforts precludes a finding of a statutory ground for termination. "The state must ensure that appropriate services are provided," and "a court is not required to terminate parental rights if the State has not provided to the family of the child, consistent with the time period in the State case plan, such services as the State deems necessary for the safe return of the child to the child's home." In re Rood, 483 Mich 73, 104; 763 NW2d 587 (2009) (quotation marks and citations omitted). However, because reasonable efforts at reunification were made in the instant case, the trial court's statutory grounds finding is not undermined on this basis.
Respondent next argues that termination of his parental rights was not in GLF's best interests. We disagree.
"In order to terminate parental rights, the trial court must find by clear and convincing evidence that at least one of the statutory grounds for termination in MCL 712A.19b(3) has been met." In re VanDalen, 293 Mich App at 139. The trial court must also determine "that termination is in the child's best interests before it can terminate parental rights." In re England, 314 Mich App 245, 253; 887 NW2d 10 (2016) (quotation marks and citation omitted). "[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 76, 90; 836 NW2d 182 (2013). This Court "review[s] for clear error 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 Trejo, 462 Mich 341, 356-357; 612 NW2d 407 (2000), abrogated by statute on other grounds as stated in Moss, 301 Mich App at 83, 88. "A circuit court's decision to terminate parental rights 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." In re JK, 468 Mich 202, 209-210; 661 NW2d 216 (2003). "Appellate courts are obliged to defer to a trial court's factual findings at termination proceedings if those findings do not constitute clear error," In re Rood, 483 Mich at 90, and this Court "give[s] 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).
As a threshold matter, we note that respondent does not explicitly challenge on appeal the trial court's finding that statutory grounds for termination of parental rights existed and only argues that the trial court was precluded from finding a statutory ground existed because reasonable efforts at reunification were not made. As previously discussed, the trial court did not plainly err by finding that reasonable efforts were made. Nonetheless, we find that termination was proper under MCL 712A.19b(3)(c)(i).
The trial court may terminate parental rights under MCL 712A.19b(3)(c)(i) if "[t]he 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 . . . [t]he 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." We have affirmed termination under MCL 712A.19b(3)(c)(i) based on a finding that "the totality of the evidence amply supports that [respondent] had not accomplished any meaningful change in the conditions existing by the time of the adjudication." In re Williams, 286 Mich App 253, 272, 278; 779 NW2d 286 (2009).
Here, the initial dispositional order was entered on March 20, 2015, and the termination hearing began on October 6, 2016. Thus, more than 182 days had elapsed since the initial dispositional order was issued. MCL 712A.19b(3)(c).
The condition to which respondent pleaded and that led to his adjudication was that he had been unable to provide his own proper housing for the minor child GLF. According to Caseworker Cochrane, she had tried to view respondent's residence in March 2015 to approve it, but was not allowed to see it until more than a year later, in June 2016. Respondent declined multiple opportunities to have her view the house. Additionally, Cochrane needed to clear everyone in the house as part of the approval process to make sure that nobody in the house was on the central registry or had a criminal background. Thus, even though she determined that the house itself was appropriate, she could not approve the residence because respondent had never provided the necessary identification to allow the background check to be conducted on respondent's uncle who also lived in the house. Respondent's house had not been approved as of the time of the termination proceedings. Therefore, the totality of the evidence "amply supports" that there was no meaningful change in the conditions of respondent failing to provide proper housing for GLF. In re Williams, 286 Mich App at 272.
Next, there was no reasonable likelihood that the condition would be rectified within a reasonable time considering GLF's age. At the time of the termination, GLF was seven years old. He had spent the previous two years in foster care, and before that he lived with respondent's second cousin because respondent was incarcerated. There was evidence that GLF did not spend much of his early life living with respondent. More recently, respondent could not manage to have the home study concluded for his residence, including the necessary background checks, even though he had well over a year to do so. Respondent even testified at one point that he should have been more proactive about making sure the home inspection occurred. The evidence supports the conclusion that GLF has not ever had a very stable home situation during his seven-year life, and it would not be fair to make him continue to wait when it seems that respondent could not even manage to complete the simple task of having a caseworker approve the residence where he lived throughout this case with the exception of the times when he was incarcerated. See Matter of Dahms, 187 Mich App 644, 647, 648; 468 NW2d 315 (1991) (stating that it was not the Legislature's intent for children to remain in foster care indefinitely and holding that "[t]he trial court's decision to terminate appropriately focused not only on how long it would take respondent to improve her parenting skills, but also on how long her three children could wait for this improvement.").
Therefore, the trial court did not clearly err by relying on MCL 712A.19b(3)(c)(i) in terminating respondent's parental rights because the conditions that led to adjudication continued to exist and there was no reasonable likelihood that the conditions would be rectified within a reasonable time considering the child's age. Williams, 286 Mich App at 272. Only one statutory ground is necessary to support termination. In re VanDalen, 293 Mich App at 139. Thus, we need not consider the additional grounds relied upon by the trial court. In re HRC, 286 Mich App at 461.
Next, we consider whether termination was in GLF's best interests. "Once a statutory ground for termination has been proven, the trial court must find that termination is in the child's best interests before it can terminate parental rights." In re Olive/Metts Minors, 297 Mich App 35, 40; 823 NW2d 144 (2012). The child, not the parent, is the "focus" at the best-interest stage, In re Moss, 301 Mich App at 87, and "the trial court has a duty to decide the best interests of each child individually," In re Olive/Metts Minors, 297 Mich App at 42. A court may consider the entire record when making its best-interest determination. In re Trejo, 462 Mich at 354. "In deciding whether termination is in the child's best interests, the court may consider 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 Minors, 297 Mich App at 41-42 (citations omitted). A parent's degree of cooperation with the visitation portion of the family plan and the quality of the parent-child contact during visitation may be considered. In re BZ, 264 Mich App 286, 301; 690 NW2d 505 (2004). The trial court may also consider the length of time that a child was placed in foster care or with relatives and the likelihood that the child could be returned to the parents' home in the foreseeable future, considering the child's need for "a permanent, safe, and stable home." In re Frey, 297 Mich App at 248-249. In addition, the trial court may consider whether a child is thriving in foster care and whether the foster parents wish to adopt the child. In re VanDalen, 293 Mich App at 141.
Here, GLF was only seven years old and had spent the previous two years in foster care. He previously lived with respondent's second cousin because respondent was incarcerated, and he had called the second cousin "mom." There was evidence that GLF did not spend much of his early life living with respondent even when respondent had custody of GLF during the earlier court proceedings that immediately followed GLF's birth. Respondent had not taken the necessary steps to have his residence approved, despite Caseworker Cochrane's offers to conduct the home study over the course of more than a year. GLF had severe behavioral and mental health issues, but there was evidence that he was improving in his current foster home and that his foster mother was actively involved in his various mental health services. He had been in his current placement for over a year, which was the longest that any of his foster placements had lasted. There was evidence that the foster mother was interested in providing permanency, that she was the first foster placement to successfully manage GLF's behaviors over an extended period of time, and that GLF wished to remain with the foster mother. The fact that GLF was doing so well in a foster placement where he could be adopted weighs in favor of a conclusion that termination was in GLF's best interests. In re VanDalen, 293 Mich App at 141. Furthermore, the evidence supports the conclusion that GLF's home situation has never been very stable during his seven-year life because respondent has been in and out of prison and jail and GLF has been moved among relatives and foster placements throughout his life. GLF was in need of permanency, stability, and finality; the trial court did not clearly err by finding that termination of respondent's parental rights was in GLF's best interests. See In re Olive/Metts Minors, 297 Mich App at 41-42.
Affirmed.
/s/ David H. Sawyer
/s/ Joel P. Hoekstra
/s/ Jane M. Beckering