Opinion
356701
09-23-2021
In re T. GEISBERT, Minor.
UNPUBLISHED
Clare Circuit Court Family Division LC No. 19-000030-NA
Before: Beckering, P.J., and Shapiro and Swartzle, JJ.Per Curiam.
Respondent-mother appeals as of right the order terminating her parental rights to her minor child-TG-under MCL 712A.19b(3)(c), (g), and (i). On appeal, respondent argues that the trial court clearly erred in terminating her parental rights and that termination of her parental rights was not in TG's best interests. We affirm.
I. BACKGROUND
TG was born in March 2015 and remained in respondent's care until November 2017 when Children's Protective Services (CPS) removed him from her care because of allegations of neglect and possible physical abuse. CPS placed TG with his father, Timothy Sutton. Respondent did not have any contact with TG from that time until the Michigan Department of Health and Human Services (petitioner) filed a petition in May 2019 to remove TG from Sutton's care because of alleged physical abuse. Petitioner was unable to locate respondent initially, but eventually contacted her through social media. Petitioner did not place TG with respondent because of TG's behavioral issues, respondent's lack of contact with TG over the prior two years, and respondent's prior termination of parental rights to two of her other children for "serious and chronic neglect or physical abuse."
Respondent immediately engaged in services and completed a psychological evaluation in September 2019. The psychological evaluation identified multiple mental health issues and recommended that respondent participate in multiple types of services, such as Alcoholics Anonymous, parenting classes, and individual therapy. The evaluation also recommended that respondent have supervised visits with TG and obtain appropriate employment and housing. Additionally, TG completed a trauma assessment, which diagnosed him with posttraumatic stress disorder. The assessment recommended that TG participate in trauma therapy with his caregivers and obtain a permanent placement as soon as possible. After reviewing the assessment, Kelly Powell-Wiley, TG's Community Mental Health (CMH) home-based therapist, determined that trauma therapy using the Parent Management Training Oregon (PMTO) model was necessary for all of TG's caregivers, noting that TG's trauma triggered "major outbursts," which included physical aggression, verbal aggression, and night terrors.
TG's behavioral problems eventually resulted in his expulsion from school. In February 2020, the trial court suspended respondent's visitation with TG in an effort to stabilize TG's behavior. TG's behavioral problems continued and visitation never resumed. Petitioner eventually filed a petition to terminate respondent's parental rights based on respondent's failure to benefit from the services that had been provided to her, appreciate the level of TG's trauma, and demonstrate an ability to care properly for TG. The trial court authorized the petition and moved to the termination phase of the proceedings.
During the termination hearing, Powell-Wiley testified that TG's behavior was improving, but that he did not express any interest in visiting respondent. Additionally, a CPS worker testified that petitioner experienced difficulty obtaining services for respondent because TG was moved to foster homes in multiple counties. Each move made different services available to respondent and prevented her from participating in some other services respondent was otherwise set to participate in. During the gaps in these services, however, the CPS worker gave respondent some PMTO book materials. Eventually, respondent began an eight-week PMTO program with Powell-Wiley, but respondent stopped participating in this program after two weeks. We note, however, that respondent did seek out two parenting classes and a trauma class on her own because petitioner could not timely get her services. Finally, respondent's therapist testified that she began treating respondent in December 2019 and that respondent showed significant progress during their sessions.
The trial court terminated respondent's parental rights in a written opinion. The trial court found statutory grounds to terminate respondent's parental rights under MCL 712A.19b(3)(c), (g), and (i). Regarding subsection (c), the trial court concluded that, since the initial dispositional order and notice to rectify conditions, respondent failed to treat and regulate her own mental health concerns, develop parenting skills to care for TG, or benefit from the services offered to her. As for subsection (g), the trial court found that respondent had not seen TG for two years before the petition was filed, could not be located when the petition was filed, never attempted to change custody or enforce parenting time, did not maintain appropriate housing, did not address her own mental health needs, and failed to support TG emotionally, financially, or physically since he was two years old. Finally, regarding subsection (i), the trial court found that respondent failed to rectify the issues that led to her prior terminations of parental rights, noting that respondent was previously offered services in the earlier case but refused and fled the state. Because there was no bond between TG and respondent, nor a reasonable likelihood that respondent would rectify the conditions within a reasonable time, the trial court concluded that there was clear and convincing evidence for termination on each of the statutory grounds.
The trial court additionally found that termination was in TG's best interests. Specifically, the trial court concluded that TG's level of trauma required a consistent and stable caregiver, which respondent failed to demonstrate. The trial court also noted that, while respondent consistently attended visitation before it was suspended, TG referred to respondent by her first name, identified his foster parents as "mom" and "dad," showed no affection toward respondent, and was out of control during respondent's visits. Finally, the trial court additionally found that respondent still had not taken care of her own mental health and emotional needs. As a result, the trial court found that termination of respondent's parental rights was in TG's best interests. Consequently, the trial court entered an order terminating respondent's parental rights.
II. ANALYSIS
A. STATUTORY GROUNDS
Respondent argues that the trial court erred by finding statutory grounds to terminate her parental rights. This Court "reviews for clear error the trial court's factual findings and ultimate determinations on the statutory grounds for termination." In re White, 303 Mich.App. 701, 709-710; 846 N.W.2d 61 (2014). To be clearly erroneous, a trial court's determination must be more than possibly or probably incorrect. In re Ellis, 294 Mich.App. 30, 33; 817 N.W.2d 111 (2011). "A finding is clearly erroneous if, although there is evidence to support it, this Court is left with a definite and firm conviction that a mistake has been made." Id. Finally, this Court must consider "the special opportunity of the trial court to judge the credibility of the witnesses who appeared before it." Id.
As an initial matter, we note that "[r]easonable efforts to reunify the child and family must be made in all cases except those involving the circumstances delineated in MCL 712A.19a(2)." In re Simonetta, __Mich__; 959 N.W.2d 170 (2021). See also In re S J Sanborn, __Mich App__, __ n 2; __N.W.2d__ (2021) (Docket Nos 354915 & 354916); slip op at 2 n 2. One of the exceptions under MCL 712A.19a(2) establishes that reasonable efforts to reunify a parent with her child need not be made if "[t]he parent has had rights to the child's siblings involuntarily terminated and the parent has failed to rectify the conditions that led to that termination of parental rights." MCL 712A.19a(2)(c). This provision clearly applies when petitioner seeks, as it does in this case, to terminate a respondent's parental rights under MCL 712A.19b(3)(i). Consequently, we assume without deciding that petitioner failed to make reasonable efforts to reunify respondent with TG.
Orders from our Supreme Court are binding if they are a final disposition of an application containing a concise statement of the applicable facts and the reason for the decision. See DeFrain v State Farm Mut Auto Ins Co, 491 Mich. 359, 369; 817 N.W.2d 504 (2012).
"Only one statutory ground need be established by clear and convincing evidence to terminate a respondent's parental rights, even if the court erroneously found sufficient evidence under other statutory grounds." In re Ellis, 294 Mich.App. at 32. MCL 712A.19b(3)(i) provides that the trial court may terminate a parent's rights to a child if the "[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." MCL 712A.19b(3)(i).
There is no dispute that respondent's parental rights were previously terminated to two other children for "serious and chronic neglect or physical abuse." Respondent was provided services in that earlier proceeding to regain custody of her children, but she refused to participate and, instead, left the state. Additionally, there is no dispute that TG was removed from respondent's care and custody in 2017 for improper supervision, neglect, and possible physical abuse.
It is difficult to determine if respondent has developed the parenting skills necessary to care for TG because there has been no opportunity for respondent to demonstrate her parenting skills or capability to care for TG since the suspension of her visitation. But the conditions that led to respondent's prior parental rights terminations and TG's 2017 removal were not limited to respondent's parenting skills. Rather, respondent has a history of neglecting her children to the level of removal and termination, which we conclude has not been rectified. Specifically, respondent admits she had no contact with TG after his removal in 2017, despite having court-ordered parenting time. While respondent stated she contacted Sutton to visit TG on multiple occasions during this time, she failed to provide any evidence of her attempts. Respondent also took no steps to enforce her court-ordered parenting time. Accordingly, respondent's lack of effort to maintain contact with TG for two years, especially in the early years of his life, coupled with witness testimony establishing respondent's disregard for TG's level of trauma and needs, confirm that respondent has not rectified the neglect-based concerns from the prior terminations, regardless of her compliance and efforts in other areas of this proceeding. We acknowledge that respondent did appear to make progress by seeking out services to improve her parenting abilities on her own, but her efforts are not sufficient to show that the trial court erred by finding statutory grounds to terminate her parental rights to TG under MCL 712A.19b(3)(i). Because the trial court did not err by finding one statutory ground to terminate respondent's parental rights, we need not address any of the other statutory grounds the trial court relied on. See In re Ellis, 294 Mich.App. at 32.
B. BEST INTERESTS
Respondent also argues that termination of her parental rights was not in TG'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, 40-41; 823 N.W.2d 144 (2012). "[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 N.W.2d 182 (2013). The trial court's ruling regarding best interests are reviewed for clear error. In re Schadler, 315 Mich.App. 406, 408; 890 N.W.2d 676 (2016).
"The trial court should weigh all the evidence available to determine the children's best interests." In re White, 303 Mich.App. at 713. In considering the child's best interests, the trial court's focus must be on the child and not the parent. In re Moss, 301 Mich.App. at 87. "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, 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." In re White, 303 Mich.App. at 714. When the trial court makes its best interests-determination, it 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 In re Moss, 301 Mich.App. at 83.
A review of the record establishes that the trial court's best-interests decision was based on the lack of a bond between TG and respondent, respondent's inability to control TG during visitation, TG's need for a stable and consistent caregiver to receive trauma therapy, and TG's relationship with his foster parents. The trial court also concluded that respondent did not benefit from her parent-agency treatment plan because she did not engage in the services offered to her and the services she did engage in were inadequate to provide stability and consistency for TG.
Respondent argues petitioner's actions stifled her opportunity to develop her bond with TG when her visitation was suspended. MCL 712A.13a(13) generally requires the trial court to allow a parent to have "regular and frequent parenting time" with her child after removal, but:
If the court determines that parenting time, even if supervised, may be harmful to the juvenile's life, physical health, or mental well-being, the court may suspend parenting time until the risk of harm no longer exists. The court may order the juvenile to have a psychological evaluation or counseling, or both, to determine the appropriateness and the conditions of parenting time. [MCL 712A.13a(13).]
Respondent failed to cite any legal authority, such as MCL 712A.13a(13), for the proposition that the trial court erred by suspending her parenting time with TG. Consequently, any such argument is abandoned. See Cheesman v Williams, 311 Mich.App. 147, 161; 874 N.W.2d 385 (2015). Nevertheless, we consider respondent's lack of parenting time with TG relevant to our best-interests analysis so we choose to address it within that limited context.
A review of the record establishes that TG's significant trauma-induced behavioral issues warranted a temporary suspension of respondent's visitation in February 2020. Powell-Wiley- TG's CMH therapist-opined that, in addition to TG's continued behavioral issues, suspension was necessary, in part, because Powell-Wiley had observed a "chaotic visit" with respondent and TG in February 2020. Accordingly, the trial court's initial temporary suspension was warranted for TG's well-being. The trial court then deferred to Powell-Wiley regarding when to resume visitation, and she recommended that the trial court continue to suspend visitation. The trial court did not err by deferring to Powell-Wiley regarding when to resume visitation. Then the trial court continued to suspend respondent's visitations when the proceedings' goal changed to terminating respondent's parental rights. Again, the trial court did not err by making this decision because resuming visitation immediately before terminating respondent's parental rights could easily have detrimentally affected TG by reintroducing his mother in his life only to then terminate her parental rights. Indeed, Powell-Wiley repeatedly testified that TG needed stability and permanency even more than most children. Accordingly, maintaining the status quo regarding TG served a significant interest in supporting his mental and emotional well-being.
As for the bond between TG and respondent, the trial court concluded that no bond existed between them. A review of the record establishes that before the suspension of visitation TG referred to respondent by her first name, would run away from her, and would not listen to or follow her directions. Additionally, Powell-Wiley testified that TG stated he did not want to visit with respondent and did not have a significant reaction to the suspension of visitation. Moreover, Powell-Wiley and TG's CPS caseworker both testified that TG was doing very well in his foster parents' care since visitation was suspended. Additionally, we note respondent's bond with TG was significantly disrupted when she was absent from TG's life for two years after he was removed from her care and placed with Sutton. While respondent asserted she was denied any ability to see TG between 2017 and 2019 by Sutton, respondent also never sought to enforce her parenting time through the courts. Consequently, respondent and TG did not have any bond that would weigh against terminating respondent's parental rights.
Despite the lack of a bond between respondent and TG, respondent argues that it will be difficult to find a permanent and stable adoptive family for TG because of his behavioral issues. Essentially, respondent argues that TG's behavioral issues are so extensive he can only have a stable home environment with respondent because foster homes will continually ask that he be transferred to other foster homes. But this argument cuts both ways. TG needs a stable home environment and caregivers who are capable of adequately caring for him and addressing his individual needs. TG has shown significant behavioral problems and his foster parents at the time of the termination hearing had previously requested TG be removed for physically and verbally aggressive behavior. TG needs permanency to engage in trauma therapy and develop skills to be a functioning adult. But respondent would still need to make significant progress before TG could be placed with her. While the foster system might not immediately lead to stability for TG, a definitive conclusion regarding the status of respondent's parental rights does add a level of stability that was not present during the trial court proceedings. Additionally, respondent had not shown, at the time of the termination hearing, that she was capable of caring for TG on her own. Consequently, because TG would not likely have a stable home environment with respondent in the near future, he had a greater chance for stability if respondent's parental rights were terminated.
We do note, however, that respondent took the initiative to obtain her own therapist and to attend and pay for parenting classes on her own. According to respondent and her therapist, respondent benefited from these services. Petitioner, however, failed to verify respondent's progress. Respondent's efforts to seek out services on her own clearly show her desire to reunify with TG. But, as discussed in Part II(A), petitioner was not required to make reasonable efforts to reunify respondent with TG. While we commend respondent for seeking out services on her own, respondent unfortunately failed to establish that she could properly care for TG. We acknowledge that respondent had a limited opportunity to do so after her visits with TG were suspended. As discussed earlier, however, the trial court did not err by suspending respondent's visits with TG. As a reminder, in considering the child's best interests, the trial court's focus must be on the child and not the parent. In re Moss, 301 Mich.App. at 87. Consequently, while respondent's efforts to obtain services on her own weigh against terminating her parental rights, these efforts are outweighed by the other factors previously discussed.
When viewing the record as a whole, the trial court did not err by concluding that termination of respondent's parental rights was in TG's best interests. As discussed, respondent's lack of a bond with TG was largely the result of her absence from his life for two years before these proceedings began. Despite having court-ordered parenting time from 2017 to 2019, respondent had no contact with TG, failed to establish any attempt to have contact with TG, and chose not to enforce her rights through the courts. While the suspension of visitation and petitioner's questionable efforts to provide reunification services makes it is difficult to determine whether respondent has adequate parenting skills after participating in individual therapy and parenting classes, respondent's history of neglect and failure to acknowledge the results of that neglect creates a serious concern about her ability to care for TG. Further, it appears respondent was not prepared, at the time of termination, to actually care for TG and it was undetermined how much time would be necessary for her to achieve that ability.
TG has sustained significant trauma after years of abuse and neglect from Sutton and respondent, which has made caring for him difficult even for his trained foster care providers. While termination does not guarantee permanency and stability for TG, the close relationship TG has formed with his current foster parents and improved behavior suggests a stronger likelihood for permanence, stability, and access to services in foster care than potentially returning him to respondent's care. Further, we recognize the heightened potential for harm and trauma if TG is returned to respondent and then, once again, removed from respondent's care and custody. On this basis, because the focus at the best-interests stage is on the child, and not the parent, we conclude termination of respondent's parental rights was in TG's best interests, despite respondent's efforts and compliance in this proceeding.
III. CONCLUSION
For the reasons stated in this opinion, we affirm the trial court's order terminating respondent's parental rights to TG.