Opinion
No. 351147
09-17-2020
In re GILLIARD/GARVINS, Minors.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Genesee Circuit Court Family Division
LC No. 09-124936-NA Before: CAVANAGH, P.J., and BORRELLO and TUKEL, JJ. PER CURIAM.
Respondent-mother appeals as of right the trial court's order terminating her parental rights to three minor children, DG, SG, and AG, pursuant to MCL 712A.19b(3)(a)(ii), (c)(i), (g), (i), and (j). This appeal is being decided without oral argument pursuant to MCR 7.214(E)(1). We affirm.
I. FACTS AND PROCEEDINGS
Respondent has a lengthy history with Child Protective Services (CPS) dating back to 2009 and involving at least five other children. Respondent's parental rights to two other children, AB and TB, previously were terminated in 2011 and 2012, respectively. Two other children, LW and AN, were removed from respondent's custody and placed with their fathers. Another child, AW, was part of the instant proceedings, but the trial court declined to terminate respondent's parental rights to AW, and instead, allowed the child to remain in the custody of her father and dismissed her from the petition.
In December 2017, respondent was living with DG, SG, and AW, who each were less than three years old. Respondent left her home and was subsequently arrested for assault. The police discovered the three children alone in the home, which had multiple safety hazards, including an oven that was open and had been left on. The children were removed from the home and placed in foster care. Petitioner filed a petition for the court to exercise jurisdiction over the children and requesting that respondent's parental rights be terminated at the initial dispositional hearing.
On June 21, 2018, respondent entered a plea of no contest to the allegations in the petition to enable the trial court to exercise jurisdiction over the children. At the initial dispositional hearing, petitioner agreed to dismiss the request to terminate respondent's parental rights and also agreed to provide reunification services. The court ordered respondent to comply with a case service plan that included individual and family therapy as well as anger management classes. Respondent's psychological evaluation showed that she had low intelligence in the "mildly impaired" range. To accommodate her intellectual disability, petitioner provided "supportive parenting time" in which a parenting coach provided one-on-one guidance during visitations with the children. Respondent was also required to establish stable housing.
Respondent initially complied with services, but her progress declined after three months. She missed several parenting-time sessions and often failed to call ahead to report that she would be absent. Respondent was not receptive to the parenting coach's feedback, and she did not consistently attend therapy. She completed anger management classes, but she continued to act aggressively toward workers and her children.
On February 8, 2019, petitioner filed a supplemental petition to terminate respondent's parental rights to DG, SG, and AW. In the summer of 2019, before a hearing was held, respondent gave birth to AG. Petitioner filed a new petition requesting that the court also exercise jurisdiction over AG and terminate respondent's parental rights to that child at the initial dispositional hearing. Following a hearing on September 26, 2019, the trial court asserted jurisdiction over AG, placed AW in the permanent custody of her father and dismissed her from the petition, and also terminated respondent's parental rights to DG, SG, and AG. This appeal followed.
II. ADJUDICATION OF DG AND SG
Respondent argues that the plea proceeding in which she entered a no-contest plea to allow the court to exercise jurisdiction over DG and SG was defective, and that the defects invalidate the trial court's termination of her parental rights to those two children. We disagree.
Respondent acknowledges that she never moved to set aside her plea or otherwise challenge the trial court's exercise of jurisdiction over DG and SG before the trial court terminated her parental rights to these children. "[A]djudication errors raised after the trial court has terminated parental rights are reviewed for plain error." In re Ferranti, 504 Mich 1, 29; 934 NW2d 610 (2019). "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) (quotation marks omitted), citing People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). "Generally, an error affects substantial rights if it caused prejudice, i.e., it affected the outcome of the proceedings." In re Utrera, 281 Mich App 1, 8-9; 761 NW2d 253 (2008). The appellant bears the burden of persuasion with respect to prejudice. See Carines, 460 Mich at 763 ("It is the defendant rather than the Government who bears the burden of persuasion with respect to prejudice.") (quotation marks and citation omitted). Finally, issues concerning the interpretation and application of statues and court rules are reviewed de novo. In re Sanders, 495 Mich 394, 404; 852 NW2d 524 (2014).
Pleas of admission or no contest are governed by MCR 3.971, which on the date of the adjudication provided, in pertinent part:
(B) Advice of Rights and Possible Disposition. Before accepting a plea of admission or plea of no contest, the court must advise the respondent on the record or in a writing that is made a part of the file:
(1) of the allegations in the petition;
(2) of the right to an attorney, if respondent is without an attorney;
(3) that, if the court accepts the plea, the respondent will give up the rights to
(a) trial by a judge or trial by a jury,
(b) have the petitioner prove the allegations in the petition by a preponderance of the evidence,
(c) have witnesses against the respondent appear and testify under oath at the trial,
(d) cross-examine witnesses, and
(e) have the court subpoena any witnesses the respondent believes could give testimony in the respondent's favor;
(4) of the consequences of the plea, including that the plea can later be used as evidence in a proceeding to terminate parental rights if the respondent is a parent.
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(D) Voluntary, Accurate Plea.
(1) Voluntary Plea. The court shall not accept a plea of admission or of no contest without satisfying itself that the plea is knowingly, understandingly, and voluntarily made.
(2) Accurate Plea. The court shall not accept a plea of admission or of no contest without establishing support for a finding that one or more of the statutory grounds alleged in the petition are true, preferably by questioning the respondent unless the offer is to plead no contest. If the plea is no contest, the court shall not question the respondent, but, by some other means, shall obtain support for a finding that one or more of the statutory grounds alleged in the petition are true. The court shall state why a plea of no contest is appropriate.
Respondent argues that, under In re Ferranti, 504 Mich 1, the trial court plainly erred when it accepted her no contest plea and took jurisdiction of DG and SG. In In re Ferranti, the trial court failed to advise the respondents that they were waiving certain rights and failed to advise them of the consequences of their pleas. Id. at 9. A year and a half later, the trial court terminated the respondents' parental rights under MCL 712A.19b(3)(c)(i) and (g). Id. at 12. On appeal, the respondents argued that the trial court improperly asserted jurisdiction because their pleas were defective. Id. at 12-13. Our Supreme Court concluded that the respondents established a plain error because "[d]ue process and our court rules require a trial court to advise respondents-parents of the rights that they will waive by their plea and the consequences that may flow from it." Id. at 30. The Court rejected the petitioner's argument that "it would have been able to prove the allegations had the case proceeded to an adjudication trial" because "the constitutional deficiencies here are not forgiven by what might have transpired at trial." Id. The Court concluded that the defective plea proceeding deprived the respondents "of their fundamental right to direct the care, custody, and control" over the child based on invalid pleas, which relieved petitioner "of its burden to prove that the respondents were unfit at a jury trial, with all of its due-process protections." Id. The Court also concluded that "these constitutional deprivations affected the very framework within which respondents' case proceeded. There was error, it was plain, and it affected the respondents' substantial rights." Id. at 30-31.
This case is distinguishable from In re Ferranti because the trial court here did advise respondent of the rights she would be waiving by pleading no contest. Respondent argues that the trial court erred by failing to obtain her understanding and agreement of the factual allegations in the petition to which she was pleading no contest. The record does not support respondent's argument. On questioning by the trial court, respondent specifically acknowledged her understanding that she was offering a plea of no contest "to the entire petition." Respondent was represented by counsel, who stated that a no-contest plea was appropriate because the petition contained allegations that could expose respondent to criminal charges. There is no basis for inferring that respondent thought that entering a plea to the petition was not the same as entering a plea to the allegations in the petition, or that she was uninformed as to the allegations in the petition. Accordingly, respondent fails to demonstrate a plain error in this regard.
We agree, however, that the trial court erred by failing to advise respondent that her plea could be used as evidence in a proceeding to terminate parental rights, as required by MCR 3.971(B)(4). But this error does not require reversal because there is no basis for concluding that it was outcome-determinative. Respondent was aware that termination of her parental rights was a possible consequence of entering her plea because the court advised her that if it exercised jurisdiction over the children, she would be required to participate in services and that her failure to benefit from services could be used as evidence to terminate her parental rights. In addition, the trial court did not rely on respondent's plea as a factual basis for finding that termination of respondent's parental rights was warranted. Instead, the court relied on independent evidence presented at the termination hearing to find that the statutory grounds for termination were established by clear and convicting evidence and to find that termination of respondent's parental rights was in the children's best interests. Indeed, of the five statutory grounds cited by the trial court, MCL 712A.19b(3)(a)(ii), (c)(i), (g), (j), and (i), only § 19b(3)(c)(i) (failure to rectify the conditions that led to the adjudication) was dependent upon the allegations in the petition. Even when addressing § 19b(3)(c)(i), however, the court did not rely on respondent's plea in finding the necessary factual support for the allegations; rather, the trial court relied on independent evidence that was presented at the termination hearing. Moreover, the factual basis for the trial court's reliance on § 19b(3)(a)(ii) involved respondent's failure to visit the children for 91 or more days several months after the adjudication. Under these circumstances, the trial court's error of failing to advise respondent that her plea could be used as evidence at a later proceeding to terminate parental rights did not affect the outcome. Thus, this unpreserved issue does not require reversal.
III. ADJUDICATION OF AG
Respondent also argues that the trial court erred by finding that sufficient evidence supported a statutory basis for exercising jurisdiction over AG. This Court reviews for clear error the trial court's findings regarding statutory grounds to exercise jurisdiction. In re BZ, 264 Mich App 286, 295; 690 NW2d 505 (2004). 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 NW2d 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. In reviewing the trial court's determination, this Court must give due regard to the unique "opportunity of the trial court to judge the credibility of the witnesses who appeared before it." Id., citing MCR 2.613(C).
At a trial on a petition for jurisdiction over a child, "the petitioner has the burden of proving by a preponderance of the evidence one or more of the statutory grounds for jurisdiction alleged in the petition." In re Ferranti, 504 Mich at 15 (quotation marks and citation omitted); MCR 3.972(C)(1). Petitioner sought jurisdiction over AG pursuant to MCL 712A.2(b)(1) and (2), which provide that a court has jurisdiction over a child:
(1) Whose parent or other person legally responsible for the care and maintenance of the juvenile, when able to do so, neglects or refuses to provide proper or necessary support, education, medical, surgical, or other care necessary for his or her health or morals, who is subject to a substantial risk of harm to his or her mental well-being, who is abandoned by his or her parents, guardian, or other custodian, or who is without proper custody or guardianship. . . .AG was removed from respondent's custody at birth. At that time, respondent had three other children who were under the court's jurisdiction and a supplemental petition to terminate respondent's parental rights to those children was pending. Respondent failed to consistently visit the children, and she additionally failed to consistently participate in and benefit from services. She also had an extensive CPS history involving other children, which similarly involved poor parenting skills, volatility, and hostility. The trial court found that, because of the threat of maltreatment, AG could not be placed in respondent's care. The trial court reiterated respondent's history of neglecting her children, which resulted in the termination of her parental rights to two other children. The court summarized the services that had been offered to respondent in this case.
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(2) Whose home or environment, by reason of neglect, cruelty, drunkenness, criminality, or depravity on the part of a parent, guardian, nonparent adult, or other custodian, is an unfit place for the juvenile to live in. As used in this sub-subdivision, "neglect" means that term as defined in section 2 of the child abuse and neglect prevention act, 1982 PA 250, MCL 722.602.
Respondent argues that the trial court's findings were insufficient to support its jurisdiction over AG because the court did not explain how respondent's history of neglect pertained to AG. "The doctrine of anticipatory neglect recognizes that '[h]ow a parent treats one child is certainly probative of how that parent may treat other children.' " In re AH, 245 Mich App 77, 84; 627 NW2d 33 (2001), quoting In re LaFlure, 48 Mich App 377, 392; 210 NW2d 482 (1973) (alteration in original). Respondent argues that the anticipatory-neglect doctrine does not apply here because there was no evidence as to how her neglect of her other children affected or would affect AG. Respondent cites In re LaFrance, 306 Mich App 713; 858 NW2d 143 (2014), in which this Court held that the trial court erred in applying the doctrine of anticipatory neglect to terminate the respondents' parental rights to three older children based on the medical neglect of a younger child with heightened medical needs. Id. at 730-731. This Court remarked that "no evidence was offered to prove[] that either respondent had ever abused or neglected any of their three older children." Id. at 730. The Court noted that the older children did not require the special care that the youngest child needed, and that there was no evidence that the respondents abused or neglected the older children at any time. Id. This Court concluded, that "[w]hile anticipatory neglect can militate in favor of termination, under the unusual circumstances of this case, the doctrine has little bearing." Id.
The instant case is distinguishable from In re LaFrance because there were no special circumstances related to respondent's older children that did not also apply to AG. Respondent did not fail to meet unusual or unique needs of her children. Rather, she failed to provide for their basic and general needs. She also failed to establish stable housing and to consistently visit the children; indeed, she last visited any of her children more than a month before AG was born. When respondent did visit, she evinced hostility and aggression, and she was unable to divide her attention among three children. She resisted guidance from the parenting coach and mental health specialists, insisting that there was nothing wrong with her parenting. Under these circumstances, the anticipatory-neglect doctrine provided a firm factual basis for exercising jurisdiction over AG.
IV. ACCOMMODATION OF DISABILITY
Respondent next argues that petitioner failed to make reasonable efforts to accommodate her mild intellectual disability, and thereby failed to satisfy its obligation to make reasonable efforts to reunify her with her children. We disagree.
"We review the trial court's findings regarding reasonable efforts for clear error." In re Smith, 324 Mich App 28, 43; 919 NW2d 427 (2018).
Respondent emphasizes that she requested accommodation under the Americans with Disabilities Act (ADA), 42 USC 12101 et seq. Although the ADA does not provide a defense to proceedings to terminate parental rights, In re Terry, 240 Mich App 14, 24-25; 610 NW2d 563 (2000), it does require petitioner to reasonably accommodate a disabled parent in the provision of services to achieve reunification and avoid termination of parental rights, In re Hicks, 500 Mich 79, 86; 893 NW2d 637 (2017). Petitioner's obligations under the ADA dovetail with its affirmative duty under Michigan's Probate Code "to make reasonable efforts to reunify a family before seeking termination of parental rights." In re Hicks, 500 Mich at 85-86. Failure to make reasonable efforts toward reunification may prevent petitioner from establishing statutory grounds for termination. See In re Newman, 189 Mich App 61, 65-68; 472 NW2d 38 (1991). But if a parent is simply unable to meet the needs of her child, then "the needs of the child must prevail over the needs of the parent." In re Terry, 240 Mich App at 28 (citation and quotation marks omitted). The ADA does not require petitioner to provide a parent "with full-time, live-in assistance with her children." Id. at 27-28. Rather, in order to prevail on an argument that petitioner's reunification efforts were inadequate, a respondent must demonstrate that he or she would have fared better if sufficient services were offered. See In re Fried, 266 Mich App 535, 543; 702 NW2d 192 (2005).
Respondent argues that petitioner did not tailor services to her ability to learn. Petitioner recognized early in the proceedings that one-on-one parenting instruction would be more suitable than classroom instruction. Petitioner therefore arranged for respondent to work one-on-one with a parenting coach. Respondent also participated in family counseling, but she missed approximately half the visitation and counseling sessions. Respondent was not open to guidance, but instead argued that her parenting needed no improvement. Just as the ADA does not require petitioner to provide a parent "with full-time, live-in assistance with her children," In re Terry, 240 Mich App at 27-28, it does not require petitioner to accommodate a parent's refusal to cooperate.
Respondent argues that psychiatric services might have provided the assistance she needed to overcome her hostility and poor impulse control. Respondent's psychological evaluation recommended psychiatric medication only as a "last resort," if respondent's "impulsive behaviors are out of control and have not responded to parenting instruction and counseling." Petitioner's failure to pursue this "last resort" option did not render its accommodation efforts insufficient. If respondent had made credible efforts to rehabilitate herself, but was still unable to manage her emotions and behaviors, psychiatric assistance might have been warranted. But respondent's failure to exert herself meant that the "last resort" option was not yet ripe. Thus, the trial court did not clearly err by finding that petitioner had made sufficient efforts to accommodate respondent in satisfaction of its obligation to provide reasonable reunification services.
V. STATUTORY GROUNDS FOR TERMINATION
Respondent argues that the trial court erred by finding sufficient evidence to support the statutory grounds for termination. We disagree.
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 NW2d 61 (2014). This Court must consider "the special opportunity of the trial court to judge the credibility of the witnesses who appeared before it." In re Ellis, 294 Mich App at 33.
"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. In relevant part, MCL 712A.19b(3) authorizes a trial court to terminate parental rights if it finds by clear and convincing evidence that any of the following exist:
(a) The child has been deserted under either of the following circumstances:
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(ii) The child's parent has deserted the child for 91 or more days and has not sought custody of the child during that period.
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(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.
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(g) The parent, although, in the court's discretion, financially able to do so, 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.
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(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 trial court found five grounds for terminating respondent's parental rights by clear and convincing evidence, MCL 712A.19b(3)(a)(ii), (c)(i), (g), (i), and (j). When considering MCL 712A.19b(3)(j), "a parent's failure to comply with the terms and conditions of his or her service plan is evidence that the child will be harmed if returned to the parent's home." In re White, 303 Mich App at 711. Respondent was initially compliant with her service plan, but her parenting time was inconsistent. She completed anger management classes, but even after completing these classes she continued to be easily angered. Respondent additionally failed to consistently attend services offered to her after the adjudication of DG and SG. Indeed, respondent was terminated from multiple services due to her failure to participate in them. Thus, the trial court did not err by finding statutory grounds to terminate respondent's parental rights to the children under MCL 712A.19b(3)(j). Because the trial court properly terminated respondent's parental rights under MCL 712A.19b(3)(j) we need not consider any other statutory grounds. See In re Ellis, 294 Mich App at 32.
VI. BEST INTERESTS
Respondent argues that the trial court erred by finding that termination of her parental rights was in the children's best interests. We disagree.
"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 NW2d 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 NW2d 182 (2013). The trial court's ruling regarding best interests are reviewed for clear error. In re Schadler, 315 Mich App 406, 408; 890 NW2d 676 (2016). Furthermore, "[t]his Court gives effect to the Legislature's intent as expressed in the statute's terms, giving the words of the statute their plain and ordinary meaning. When the language poses no ambiguity, this Court need not look beyond the statute or construe the statute, but need only enforce the statute as written." In re LE, 278 Mich App 1, 22-23; 747 NW2d 883 (2008), abrogated on other grounds as recognized by In re Long, 326 Mich App 455; 927 NW2d 724 (2018) (citations and quotation marks omitted).
"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 Minors, 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 NW2d 407 (2000), superseded by statute on other grounds as recognized in In re Moss, 301 Mich App at 83. In cases concerned with multiple children, the trial court must determine each child's interests individually. In re Olive/Metts, 297 Mich App at 43-44. But a trial court is not required to make individual and redundant best-interest findings for each child when the best interests of the children do not significantly differ. In re White, 303 Mich App at 715-716.
Respondent has a longstanding history of housing instability, poor mental health, poor decision-making, and inconsistent commitment to her children. Furthermore, she failed to comply with or benefit from her service plan in this case and did not even visit the children in the final three months before her parental rights were terminated. Additionally, the children were in need of permanency, and they were thriving in their foster care placements, which were viable permanent placements. The trial court did not clearly err by finding that termination of respondent's parental rights was in the children's best interests.
Finally, we reject respondent's argument that the trial court failed to give due consideration to a relative placement. "A child's placement with relatives is a factor that the trial court is required to consider" when making its best-interests determination, In re Gonzales/Martinez, 310 Mich App 426, 434; 871 NW2d 868 (2015), and "a child's placement with relatives weighs against termination." In re Mason, 486 Mich at 164. "Relative" is defined by MCL 712A.13a(1)(j) as
an individual who is at least 18 years of age and related to the child by blood, marriage, or adoption, as grandparent, great-grandparent, great-great-grandparent,
aunt or uncle, great-aunt or great-uncle, great-great-aunt or great-great-uncle, sibling, stepsibling, nephew or niece, first cousin or first cousin once removed, and the spouse of any of the above, even after the marriage has ended by death or divorce.Thus, a child's biological parent is not that child's "relative" for purposes of the statute, but a child's grandparent or first cousin is his or her relative. See MCL 712A.13a(1)(j); In re Schadler, 315 Mich App at 413.
Respondent argues that the trial court erred by failing to consider AW's "relative placement" with AW's father. But AW's father is not her "relative" for purposes of relative placement and, therefore, the trial court was not required to consider AW's placement with her father. See MCL 712A.13a(1)(j); In re Schadler, 315 Mich App at 413. Furthermore, in this case, relative placement options were explored, but found to be unsuitable. Respondent complains that petitioner made insufficient efforts to investigate a relative placement with respondent's mother. The record establishes that respondent's mother lived in Chicago and had a CPS history in Illinois; and she also had a CPS history in Michigan that she hoped to have expunged. There was no evidence that respondent's mother was a suitable placement option for the children. Respondent thus fails to demonstrate that the trial court erred by finding that termination of her parental rights was in the children's best interests.
VII. CONCLUSION
For the reasons stated, the trial court's order terminating respondent's parental rights to the children is affirmed.
/s/ Mark J. Cavanagh
/s/ Stephen L. Borrello
/s/ Jonathan Tukel