Opinion
364610
10-05-2023
In re G. T. RILEY, Minor.
UNPUBLISHED
Wayne Circuit Court Family Division LC No. 2019-000631-NA
Before: REDFORD, P.J., and K. F. KELLY and RICK, JJ.
PER CURIAM.
Respondent appeals as of right the trial court's order terminating her parental rights to her minor child, GTR, pursuant to MCL 712A.19b(3)(i) (parent's rights to one or more siblings of the child previously terminated) and (j) (substantial likelihood child will be harmed if returned to the parent's home). On appeal, respondent argues that the trial court clearly erred in terminating her parental rights because insufficient evidence failed to satisfy the relevant statutory grounds, and because termination did not serve the child's best interests. We affirm.
The child's unknown biological father's parental rights to the child were terminated pursuant to MCL 712A.19b(3)(a)(i) (child abandoned and parent unidentifiable). Accordingly, respondent mother is referred to as respondent in this opinion.
I. BACKGROUND
In September 2022, three months after GTR's birth, petitioner filed an original petition requesting that the trial court take jurisdiction over GTR and enter an order removing the child from respondent's care and terminating her parental rights pursuant to MCL 712A.19b(3)(g) (failure to provide custody and care despite financial means to do so), (i), and (j). The petition alleged that respondent had her parental rights to six other children recently terminated in February 2022; she failed to rectify the conditions leading to those prior terminations, including a lack of suitable housing, improper supervision, and a failure to complete and benefit from ordered services; GTR tested positive for marijuana at birth; GTR lacked bedding and his own place to sleep in the home of respondent's fictive kin where they lived; and, therefore, GTR was at risk of harm in respondent's care.
Following a preliminary hearing before a referee, the trial court authorized the petition and ordered that GTR be placed under petitioner's care and supervision, with respondent having supervised parenting time. At a combined adjudication trial, termination hearing, and best-interest hearing, the referee found the evidence sufficient to take jurisdiction over GTR and that it satisfied statutory grounds for termination under MCL 712A.19b(3)(i) and (j), and that termination served the child's best interests. Accordingly, the trial court entered (1) an order of adjudication taking jurisdiction over GTR, and (2) an order terminating respondent's parental rights to GTR pursuant to MCL 712A.19b(3)(i) and (j). This appeal followed.
All proceedings below took place before a referee, and the trial court adopted the referee's factual findings, conclusions, and recommended orders throughout this case.
II. STANDARDS OF REVIEW
To terminate parental rights, a trial court must find by clear and convincing evidence a statutory ground warranting termination. In re Mota, 334 Mich.App. 300, 320; 964 N.W.2d 881 (2020). The trial court's findings and rulings regarding statutory grounds are reviewed for clear error. Id. "A finding . . . is clearly erroneous if the reviewing court has a definite and firm conviction that a mistake has been committed...." Id. (quotation marks and citation omitted; ellipses in original). Further, "regard is to be given to the special opportunity of the trial court to judge the credibility of the witnesses who appeared before it." Id. (quotation marks and citations omitted). Whether termination of parental rights is in a child's best interests must be established by a preponderance of evidence. Id. The trial court's findings and ruling that termination serves the child's best interests are also reviewed for clear error. Id.
III. ANALYSIS
Respondent argues petitioner presented insufficient evidence for the trial court to terminate her parental rights pursuant to MCL 712A.19b(3)(i) and (j). We disagree.
Concerning both statutory grounds, respondent argues that much of the testimony and court commentary related to circumstances from respondent's prior termination case, with the court failing to consider that she had since rectified her parenting issues. Specifically, respondent contends that, at the time of termination, she was an appropriate and loving parent, made progress on housing, and could prove that she was no longer the same parent who had six prior terminations. According to respondent, she significantly changed her life since the prior terminations and was receptive to engaging in reunification services at the time of termination. She argues that the court, therefore, should have given respondent an opportunity to complete a treatment plan before terminating her parental rights.
This portion of respondent's argument is more appropriately considered in evaluating whether termination served GTR's best interests.
Under MCL 712A.19b(3), the trial court could terminate respondent's parental rights if clear and convincing evidence established either of the following:
(i) Parental rights to 1 or more siblings of the child have been terminated due to serious and chronic neglect or physical or sexual abuse, and the parent has failed to rectify the conditions that led to the prior termination of parental rights.
(j) There is a reasonable likelihood, based on the conduct or capacity of the child's parent, that the child will be harmed if he or she is returned to the home of the parent.
The evidence presented to the trial court in this case adequately supported the trial court's findings regarding both statutory grounds. Here, respondent's parental rights to her other six children were previously terminated, in relevant part, as a result of physical abuse, respondent's failure to provide proper care, supervision, and support, and her failure to complete court-ordered services, including not regularly visiting the children and not securing appropriate housing.
Although the record establishes that respondent regularly visited GTR throughout this case, with no concerns identified during these visits and she worked to remedy her issues with visitation, it is undisputed that she still lacked proper housing of her own at the time of termination, an ongoing and unrectified issue throughout the earlier termination case. Given this continued issue, the trial court correctly determined that clear and convincing evidence established ground to terminate respondent's parental rights to GTR pursuant to subsection (3)(i).
Respondent's continued lack of appropriate housing also supported termination under subsection (3)(j). Specifically, this significant, unremedied parenting deficit created a reasonable likelihood that GTR would be harmed if returned to respondent's care. Evidence supported the trial court's finding given the concerns regarding respondent's drug use. And despite respondent's presumably negative drug test provided at the eleventh hour of the termination proceedings and her testimony that drug use was not a continuing issue, the record shows that GTR tested positive for marijuana at birth in June 2022-four months after the prior terminations and less than six months before the termination in this case-and that respondent refused multiple drug screens offered during relevant times. Under these circumstances, the trial court did not clearly err in finding that clear and convincing evidence established statutory grounds to terminate respondent's parental rights under MCL 712A.19b(3)(i) and (j).
Respondent also argues that terminating her parental rights did not serve GTR's best interests. We disagree.
According to respondent, termination did not serve GTR's best interests because she significantly changed her life for the better since the prior terminations and dedicated herself to improving her parenting skills. She argues that the trial court should have given her an opportunity to complete a treatment plan, which would pose no risk to GTR, before terminating her parental rights.
"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, 297 Mich.App. 35, 41-42; 823 N.W.2d 144 (2012). "The trial court should weigh all the evidence available to determine [a] child[]'s best interests." In re White, 303 Mich.App. 701, 713; 846 N.W.2d 61 (2014). The court's focus must be on the child, not the parent. In re Moss, 301 Mich.App. 76, 87; 836 N.W.2d 182 (2013).
In evaluating whether a child's best interests support termination, "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." Olive/Metts, 297 Mich.App. at 41-42 (citations omitted). "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." White, 303 Mich.App. at 714. When making its best-interest determination, the trial court may rely upon evidence in the entire record, including the evidence establishing the statutory grounds for termination. In re Trejo, 462 Mich. 341, 353-354; 612 N.W.2d 407 (2000), superseded by statute on other grounds as recognized in Moss, 301 Mich.App. at 83. "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).
A preponderance of the evidence in the record supports the trial court's decision that termination served GTR's best interests. Although respondent endeavored to make some improvements in her parenting, particularly concerning visitation, and she acted appropriately with the child during visits and had an established bonded with him, respondent still had not remedied her inadequate housing over three years after being ordered to do so in the earlier termination case. During this case, respondent continued to place much blame for the prior terminations on external factors like COVID-19 and the conduct of workers on the case. She failed to fully acknowledge her responsibilities and role in the terminations, and even disputed various determinations from the previous case. Concerns also exist from GTR's positive marijuana screen at birth and associated risks regarding respondent's parenting ability.
Ultimately, we defer to the referee's credibility determination that respondent, contrary to her testimony and argument, had not substantially changed her life since the prior terminations. Given GTR's need for permanence and stability, the significant issues that led to respondent's prior terminations, and the only minimal changes to her life and parenting since the earlier terminations, the trial court did not clearly err in finding that termination served GTR's best interests.
Affirmed.
Michelle M. Rick, J. (dissenting).
I respectfully dissent from the Court's decision to affirm the termination of mother's parental rights. In my view, statutory grounds for termination were entirely nonexistent in this case. Instead, mother has merely been penalized for her inability to afford her own housing and for minor marijuana use, neither of which have any demonstrated negative effect on her ability to parent GTR. I would reverse the order terminating mother's parental rights as insufficiently justified by the record.
I. FACTUAL BACKGROUND
The original petition in this case was filed in September 2022, requesting that GTR be removed from mother's care and that mother's parental rights be terminated under MCL 712A.19b(3)(g), (i), and (j). As the majority points out, mother lost her parental rights to six other children earlier in 2022. According to a Children's Protective Services (CPS) worker assigned to the case, respondent's parental rights to these children were terminated for improper care, unsuitable housing, physical abuse, and a failure to adhere to a case service plan (CSP). The conditions leading to termination of mother's parental rights to GTR in the instant case included a failure to obtain her own housing and failure to comply with a CSP, particularly with regard to drug testing requirements. Based on these issues, petitioner claimed that GTR was at risk of harm if returned to mother's care and custody.
Regarding mother's drug use, a Children's Protective Services worker testified at the termination hearing that mother admitted she used marijuana before discovering that she was pregnant with GTR. However, the worker agreed that GTR did not suffer from withdrawal symptoms or any other medical issues related to mother's drug use while pregnant. Substance abuse was also an issue in mother's past termination cases. The CPS worker testified that some or all of mother's other children tested positive for marijuana at birth. At the hearing, mother testified that she used to smoke marijuana but chose to quit because she believed it negatively affected her "emotions and concentration[.]" Mother submitted to two drug screens prior to the termination hearing, both of which returned negative results.
Regarding housing, the CPS worker testified that mother was residing with a friend and his wife. The worker further testified that mother initially lied and stated that this friend was her brother before later admitting that they were not related by blood, but instead knew each other through church. The worker further testified that GTR slept in a bed with mother and did not have any bedding of his own. Despite these concerns, however, the worker agreed that the home was generally appropriate for children. A foster care worker testified that she had concerns about mother's housing situation and believed that GTR "should not be returned to [mother] at this time." Mother testified that she had recently obtained new employment, applied for a mortgage, and found a realtor to assist her with finding a home. In the meantime, she testified that GTR had "five different beds" in the home to choose from, explaining that she had received a bed for GTR from the foster care agency and had gone to pick up another bed from a home where she used to live.
The CPS worker opined that termination was in GTR's best interests primarily because mother failed to rectify the problems with her housing and drug use that led to the six earlier terminations. The CPS worker also stated that respondent made no efforts to reunify with GTR since the petition was filed that September. However, the foster care worker testified that mother had attended parenting time visits with GTR, which took place on Tuesdays and Fridays for one hour each visit. The foster care worker opined that mother was appropriate with GTR and that she "holds him, talks to him, changes diapers, feeds him. They watch movies on her phone. She hugs and kisses him. She's very affectionate." The foster care worker also noted that mother had attended all of GTR's doctor's visits, as well as three occupational therapy sessions, which GTR had recently begun attending.
After the close of testimony, the trial court opined as follows:
[Mother], contrary to what you said today, you were inconsistent with visits [in the earlier case]. The Court gave you a lot of leeway in that regard, given the fact that you did have new children and those children had special needs, however, you just never rose to the occasion of being what your children needed. In regards to housing, there were a lot of promises made, none of which came to fruition. Now, we sit here, December 5th, 2022, some years later, and it's not in any different situation than it was with the other children. You have always had jobs, I will say that. You've always worked, that was never an issue. The issue was housing. The issue was substance abuse. And quite frankly, following through with the services that were required for reunification. Again, all contrary to what you testified to today. You indicated you did not consume marijuana, and quite frankly, it's not what's said, but essentially, you were surprised [GTR] was positive for marijuana, however, you have a history. I don't know which worker it was that testified about the dishonesty. If it's dishonesty or delusion, I don't know, but there's something there. This child-and again, I think it was maybe [the foster care worker] who testified that the child has occupational therapy that you have been going to, however, with the many things you didn't go to, again, it's contrary to what you
indicated. I remember I presided over those things, and you were not consistent with any of that. The housing, I'm sorry about the bed. You said the bed wasn't there for [GTR], but you had a bed, you got five beds. The Court cannot and will not put [GTR] through what those other children went through, and that is a mother who's inconsistent in showing reunification efforts. This child deserves and needs permanence and stability. Stability is what you cannot and have not been able to show that you can provide, and all children need stability ....
The trial court subsequently entered order of adjudication taking jurisdiction over GTR and an order terminating respondent's parental rights under MCL 712A.19b(3)(i) and (j).
II. STATUTORY GROUNDS
Termination under MCL 712A.19b(3)(i) is appropriate where "[p]arental rights to 1 or more siblings of the child have been terminated due to serious and chronic neglect or physical or sexual abuse, and the parent has failed to rectify the conditions that led to the prior termination of parental rights." Termination is appropriate under MCL 712A.19b(3)(j) where "[t]here is a reasonable likelihood, based on the conduct or capacity of the child's parent, that the child will be harmed if he or she is returned to the home of the parent."
A thorough review of the record indicates that the trial court's ruling on both statutory grounds for termination is entirely unsupported by the facts of the case. The record indicates that mother's rights to her other children were terminated as a result of physical abuse, a failure to provide proper care and support for the children, and a failure to comply with a CSP, including a failure to regularly visit the children and obtain appropriate housing. As an initial matter, there were no allegations of physical abuse in this case. Regarding visitation, mother rectified her past failure to visit with her children by attending parenting time visits with GTR and going to his doctor's appointments. No concerns about mother's interactions with GTR have ever been reported; to the contrary, the foster care worker assigned to the case testified that mother was always appropriate with GTR, made a concerted effort to interact with him during visits, and was actively involved in his medical care. And as to housing, the CPS worker agreed that the home where she and GTR were staying prior to his removal from her custody was generally appropriate for children. Furthermore, contrary to what the CPS worker testified, mother testified that she had obtained a bed for GTR, applied for a mortgage, and contacted a realtor to help her find independent housing. While the court noted its concerns about mother's failure to find independent housing, it never articulated why the home where mother was staying was an inappropriate place for GTR to live. The court also wholly discounted that the CPS and foster care workers agreed the home was appropriate for children, and disregarded mother's testimony that she was trying to find independent housing.
Regarding mother's substance use, the court was overly concerned about the fact that GTR tested positive for marijuana when he was born, and dismissed the CPS worker's testimony that GTR never suffered any negative effects or withdrawal symptoms as a result. It is true that a parent's failure to resolve substance abuse issues that negatively affect his ability to parent or cause a risk of harm to a child can establish sufficient grounds for termination. In re Richardson, 329 Mich.App. 232, 253-256; 961 N.W.2d 499 (2019). However, there was no evidence that mother's marijuana use affected her ability to parent GTR, and even if it had, mother testified that she had stopped using marijuana and presented two drug tests confirming that she tested negative for marijuana. Accordingly, I would conclude that insufficient evidence was presented to support the termination of mother's parental rights under MCL 712A.19b(3)(i) and (j).
This case exemplifies the drawbacks of Michigan's current child welfare legislative scheme. For example, MCL 712A.19b(3)(i) effectively presumes that a parent who loses their parental rights to one child should also be at risk of losing their parental rights to their other children as well, regardless of what steps the parent takes in the meantime to rectify the conditions that led to the earlier termination. From the time that mother's rights to her other children were terminated to the time that her rights to GTR were terminated, mother made significant improvements and was well on her way to showing that she could properly parent GTR. But because the earlier terminations weighed so heavily against her, she was never given a chance to avoid the termination of her parental rights to GTR. Thus, in this case, mother was essentially doomed to lose her parental rights, and the efforts she made at improvement were futile. Applying MCL 712A.19b(3)(i) to such cases, particularly where the parent has tried to remedy the issues that led to the prior termination, is unjust to both parent and child.
This is not to say that MCL 712A.19b(3)(i) does not have its uses. Obviously, it is valuable when applied in cases involving "serious and chronic neglect or physical or sexual abuse," as set forth in the statute. However, those conditions did not exist here. It is my opinion that trial courts and DHHS may be too quick to use subsection (3)(i) as a catch-all provision, even where the parent should ostensibly be given a chance to show that they can rectify the conditions that led to a previous termination. We should take care not to lose sight of the principle that "[t]he fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State." Santosky v Kramer, 455 U.S. 745, 753; 102 S.Ct. 1388; 71 L.Ed.2d 599 (1982) (quotation marks and citations omitted). Even parents who have neglected their children should be given an opportunity to prove that they can rectify the issues leading to state intervention. Mother was given no real opportunity to do so here. Accordingly, I would reverse and remand for reinstatement of mother's parental rights to GTR.