Opinion
No. 345265
04-18-2019
In re C. L. HAMAN, Minor.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Oakland Circuit Court Family Division
LC No. 2017-849983-NA Before: MARKEY, P.J., and FORT HOOD and GADOLA, JJ. PER CURIAM.
In this appeal arising from a child protective proceeding, respondent-father appeals as of right the circuit court's order terminating his parental rights to his child pursuant to MCL 712A.19b(3)(c)(i) and (g). We affirm.
I. STANDARD OF REVIEW
Respondent challenges on appeal the circuit court's findings regarding the statutory grounds for termination and the child's best interests.
The petitioner bears the burden of proving a statutory ground for termination by clear and convincing evidence. MCL 712A.19b(3); In re White, 303 Mich App 701, 713; 846 NW2d 61 (2014). This Court reviews for clear error a circuit court's decision that a statutory ground for termination has been proven by clear and convincing evidence. MCR 3.977(K); In re White, 303 Mich App at 709-710. Once the petitioner has proven a statutory ground, the circuit court must order termination if "termination of parental rights is in the child's best interests." MCL 712A.19b(5). A circuit court's decision regarding a child's best interests is also reviewed for clear error. MCR 3.977(K); In re White, 303 Mich App at 713. A decision qualifies as clearly erroneous when, "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). 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).
II. STATUTORY GROUNDS FOR TERMINATION
A. MCL 712A.19b(3)(c)(i)
A circuit court may order termination of parental rights under MCL 712A.19b(3)(c)(i) if the court finds by clear and convincing evidence that:
[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 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.
The circuit court's order of adjudication was entered February 23, 2017, following respondent's no-contest plea to allegations that he was living in a hotel room that lacked a bed, food, and other supplies for the child. When the circuit court first exercised jurisdiction, respondent also was not paying child support and could not financially support the child. In its first dispositional order entered on March 13, 2017, the circuit court ordered respondent to complete a substance abuse evaluation, submit weekly random screens for alcohol and drugs, participate in a psychological evaluation, attend individual therapy to improve his emotional stability, attempt to have a social support system, maintain appropriate housing and an income sufficient to care for the child, improve his parenting skills by attending parenting classes, and maintain weekly contact with petitioner.
According to petitioner's caseworker, Carrie Gaffney, at the time of the termination hearing that began on February 27, 2018 and concluded on April 23, 2018, respondent still did not have a stable income, his application for Social Security disability benefits had been denied and he was pursuing an appeal. Respondent had not complied with Gaffney's requests to apply for subsidized housing and seek a steady income from a job, and he continued to reside in a small hotel room that was not large enough and lacked supplies for the child. Respondent also lacked a support system to assist him in meeting the child's needs. While respondent participated in a substance abuse evaluation and attended a substance abuse support group, he failed to appear for 21 drug tests, one screen tested positive for cocaine, and six screens tested positive for Tramadol before respondent obtained a prescription for the drug. Respondent also inconsistently reported his alcohol consumption.
Respondent completed a psychological evaluation in October 2017, which recommended that he attend individual and substance abuse therapy, maintain financial stability, obtain a home, and monitor his health. The psychologist did not believe that respondent wanted the responsibility of caring for the child, given that he suffered from long-term depression that interfered with his capacity to change, and he was not engaging in behaviors that would improve his ability to parent. Respondent did regularly attend parenting times with the child, but he initially had difficulty changing the child's diaper and often appeared bored, although he responded to redirection and improved his ability to care for the child. Gaffney recommended that the court terminate respondent's parental rights in light of his minimal progress toward achieving his treatment plan goals and the substantial risk of harm that existed if the child returned to his custody. Gaffney did not believe that respondent was likely to make further progress if the child remained in foster care.
Conversely, respondent testified that the child was affectionate toward him during parenting times, and he felt that he had a strong, loving bond with the child. He also believed that he benefitted from group substance abuse counseling, and felt that the group and individual therapy sessions helped him improve his parenting skills by helping him make better decisions. Respondent explained that he inadvertently missed some drug screens because he mistakenly believed the testing agency had closed. He did occasionally test positive for hydrocodone and Tramadol, which he took to alleviate pain from a back injury, but denied that he abused these medications. Respondent felt prepared to care for the child. If the child was returned to his care, he intended to apply for jobs that required little heavy lifting. However, he had not sought employment because he was appealing the denial of his application for Social Security disability benefits and he did not want to interfere with his potential receipt of the benefits. While respondent testified that he suffers from back pain from a prior work-related injury as well as a heart condition, he conceded that his health issues do not prevent him from working as long as he is not required to do any heavy lifting. Respondent admitted that throughout 2017 he had shared a single-bed hotel room with his nephew who paid all the rent. However, he claimed he was ready to find proper housing for the child.
Clear and convincing evidence demonstrated that the conditions leading to the child's adjudication in February 2017, principally respondent's substance abuse, lack of income, and lack of appropriate housing for the child, continued to exist in April 2018. Respondent had missed 21 drug screens, and also tested positive on several occasions for unauthorized substances. The testimony of Gaffney and respondent consistently established that respondent did not have housing suitable for the child or a source of income. Moreover, given respondent's minimal progress toward achieving his treatment plan goals over the course of well over a year, the circuit court did not clearly err by finding that respondent was not reasonably likely to rectify these conditions within a reasonable period of time considering the child's age. See In re Dahms, 187 Mich App 644, 647; 468 NW2d 315 (1991) (recognizing that while the respondent had "made progress in her therapy," waiting two to three years for her to complete additional therapy to "reach an acceptable level of parenting skill" was not reasonable given the ages of the children and their specific "pervasive behavior disorders"). Accordingly, the circuit court did not clearly err by finding clear and convincing evidence warranting the termination of respondent's parental rights pursuant to MCL 712A.19b(3)(c)(i).
While respondent did testify that his income stemmed from scrapping and collecting bottles, we agree with the circuit court's concern that this is not a "sufficient plan" to maintain himself and a young child as it is not a stable and predictable source of income.
B. MCL 712A.19b(3)(g)
MCL 712A.19b(3)(g) provides, in pertinent part:
The parent, without regard to intent, fails to provide proper care or custody for the child and there is no reasonable expectation that the parent will be able to provide proper care and custody within a reasonable time considering the child's age.Abundant evidence established that respondent could not provide the child with proper care and custody and it was not reasonably likely that he would be able to do so within a reasonable time considering the child's age. The circuit court correctly found clear and convincing evidence that respondent did not have an income, which occurred from his own lack of effort to secure one, although he was able to work. Moreover, our review of the record yields no indication that the trial court's ruling was influenced in any manner by what respondent describes in his brief on appeal as his "poverty." Rather, the trial court was clearly aware that respondent could potentially improve his financial situation if his application for Social Security disability benefits was granted, but was justifiably concerned that respondent needed a stable and predictable income to support the minor child and there was no guarantee respondent's appeal of the denial of his Social Security disability benefits would be successful. Additionally, the record demonstrates that Gaffney repeatedly urged respondent to obtain employment. Indeed, respondent stated that he hoped to find employment in a position that did not require heavy lifting, but delayed doing so because he did not want to interfere with his appeal of his disability application denial.
MCL 712A.19b(3)(g) was amended, effective June 12, 2018, to provide:
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.
The circuit court initially exercised jurisdiction over the child on the basis that respondent could not care for the child. Respondent acknowledged that when the lower court proceedings began, he was living in a hotel room that lacked a bed, food, and other supplies for the child. He also was not paying any child support and could not financially support the child. The circuit court was also correct in its assessment that there was no reasonable expectation that respondent would be able to rectify his parental shortcomings within a reasonable time in light of the child's age. In re Dahms, 187 Mich App at 647. Notably, respondent had made little progress in satisfying the elements of his treatment plan, and he did not obtain his own appropriate housing or a stable and predictable source of income throughout the lower court proceedings. "A parent's failure to participate in and benefit from a service plan is evidence that the parent will not be able to provide a child proper care and custody." In re White, 303 Mich App at 710. Gaffney also testified at length that respondent did not benefit from the substance abuse elements of the treatment plan. Accordingly, the circuit court did not clearly err by finding clear and convincing evidence warranting termination of respondent's parental rights pursuant to MCL 712A.19b(3)(g).
At the time of the best interests hearing, respondent was living with his nephew in an apartment and his nephew paid the rent. --------
III. BEST INTERESTS
"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). In In re White, this Court summarized the applicable principles of law that govern the best interest analysis:
The trial court should weigh all the evidence available to determine the children's best interests. To determine whether termination of parental rights is in a child's best interests, the court should consider a wide variety of factors that may include the child's bond to the parent, the parent's parenting ability, the child's need for permanency, stability and finality, and the advantages of a foster home over the parent's home. The trial court may also consider a parent's history of domestic violence, the parent's compliance with his or her case service plan, the parent's visitation history with the child, the children's well-being while in care, and the possibility of adoption. [In re White, 303 Mich App at 713 (footnotes, citations and quotation marks omitted.]
The circuit court did not clearly err by finding that termination of respondent's parental rights served the child's best interests. While Gaffney and respondent both testified that respondent had an emotional bond with the child, the testimony of Gaffney, the child's foster mother, and Kathy Spatafora, a clinical psychologist, substantiated that the child and his foster parents shared a stronger bond. Even though respondent regularly attended his parenting time with the child, he did not address or remedy his lack of proper housing and income or his substance abuse issues. The testimony also established that the child's foster parents were satisfying all of the child's developmental needs and intended to continue providing for the child's needs as his adoptive parents. The young child had lived in foster care for most of his life, and had strong needs for finality, permanency, security and stability, which respondent was not in a position to provide. Accordingly, the circuit court did not err by terminating respondent's parental rights to the child.
Affirmed.
/s/ Jane E. Markey
/s/ Karen M. Fort Hood
/s/ Michael F. Gadola
The parties agree that at the time the trial court conducted the hearing to determine if statutory grounds to warrant termination existed, and entered its concomitant order on April 25, 2018, the predecessor version of the statute was in effect.