Opinion
No. 345827
04-23-2019
In re MIKOTTIS, Minors.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Montcalm Circuit Court Family Division
LC No. 2017-000784-NA Before: BECKERING, P.J., and SERVITTO and STEPHENS, JJ. PER CURIAM.
Respondent-appellant, mother of the four minor children involved in this case, appeals as of right a circuit court order terminating her parental rights to the children under MCL 712A.19b(3)(c)(i), (g), and (j). We affirm.
The court also terminated the parental rights of the children's father, who has not appealed that decision.
I. FACTS
This case originated with a petition alleging that the oldest child reported that the father had encouraged her to drink rum and then "moved his hand towards [the child's] 'private parts' " until the child "stopped him," and had earlier engaged in several instances of similar inappropriate touching. The petition additionally reported that, "a complaint was received due to domestic violence" on the part of respondents in the children's presence, which began at a hotel and continued in the family car such that they almost collided with oncoming traffic, and that allegations "were substantiated for improper supervision and threatened harm to [the children]." The petition further reported that respondent-appellant by then had "only . . . supervised parenting time with her children." The children were immediately removed from the home and initially placed with respondent-appellant's mother, then into nonrelative foster care. Respondent-appellant's supervised parenting time was initially continued, but after the children's lawyer-guardian ad litem (L-GAL) reported that the relationship between the oldest child and respondent-appellant was seriously strained, the trial court suspended parenting time in connection with that child.
At a subsequent review hearing, an audio recording of the altercation respondents had in their car in the presence of the children was entered into evidence. The trial court described the recording as "more than discouraging," elaborating that "the language, the conduct, the attitude, displayed by the parents towards each other in front of these children . . . is alarming." The court later described the recording as "one of the worse [sic] things I've ever heard." The L-GAL reported that she had met with the younger three children, along with the oldest child's therapist, and that from those meetings, as well as having "listened to the tape today" and considered the pertinent psychological evaluations, she had "concerns with continued parenting time." The trial court noted respondent-appellant's sketchy compliance with services, and suspended all parenting time. As the case progressed, the various service providers consistently recommended against any resumption of parenting time, on grounds that it would be traumatic for the children.
After the children had been in care for approximately 14 months, and in response to reports that respondent-appellant had but minimally benefited from services, the trial court ordered petitioner to "pursue termination." A two-day termination hearing followed.
The oldest child's counselor confirmed that the child suffered from post-traumatic stress disorder (PTSD), which resulted from exposure to substance abuse and domestic violence, along with reports of physical abuse and "not full sexual abuse but some grooming types of behaviors leading toward that." A home-based specialist reported that the oldest and youngest of the three younger children were also diagnosed with PTSD, and that the middle child suffered from "more generalized trauma." According to that witness, the oldest of those three suffered "anchor trauma" from riding in a car along with anxious distress at the prospect of interactions with respondents, and when the younger two children "would receive something from their parents" they responded with "heightened anxiety" and problematic behaviors.
Respondent-appellant's therapist reported that respondent-appellant was diagnosed with a "chronic subtype" of PTSD, from "a very long history of trauma" and survival. The therapist testified that respondent-appellant initially came to her to address her "volatile" relationship with respondent-father, which featured physical, sexual, psychological, and emotional abuse. The witness added that respondent-appellant and respondent-father were now "divorced officially" and that she "would like to see absolutely zero contact," but expressed the concern that with children in common maintaining such distance might not be possible. The therapist opined that respondent-appellant should continue her counseling because "a lot of healing" was in order.
The foster care worker who prepared the termination petition reported that respondent-appellant's barriers to reunification were "income, housing, emotional stability, and on-going issues of domestic violence between her and [respondent-father]," along with substance abuse and parenting skills. She further reported that respondent-appellant had overcome the barriers relating to employment and housing, but otherwise had less success.
The foster care worker testified that respondent-appellant's counselors described respondent-appellant as using sessions mainly for "venting" about petitioner, and initially resisting the dialectical behavior therapy (DBT) intended to address her issues. The foster care worker additionally described "aggressively worded emails" in which respondent-appellant presented an angry and aggressive tone, adding that respondent-appellant's negativity toward petitioner far exceeded the typical. The witness described attending Wraparound meetings in which respondent-appellant was "venting her frustrations" and calling the oldest child a liar, and one where respondent-appellant "was so escalated . . . that she was asked to leave, and the individuals that were still present for the meeting had . . . to wait on premises until she left . . . because they were concerned for their physical safety."
The witness opined that respondent-appellant had not sufficiently benefited from her services to have fully addressed her problem with emotional stability, explaining that respondent-appellant had refused to sign the releases for participation in the Supportive Parenting program, and had also refused to cooperate with obtaining appropriate treatment for the oldest child when the latter exhibited self-harming behavior and was having traumatic nightmares. The foster care worker further reported that respondent-appellant's benefit from parenting classes was minimal because she did not believe that she needed improvement in that area, and also that respondent-appellant refused to be of any help to a foster parent. The witness also expressed concerns that respondent-appellant "has never been on board" with the allegations of sexual abuse that initially prompted removal of the children," including by maintaining that the oldest child was lying and denying that the children were ever traumatized, and also that "a lot of . . . back and forth between her and [the father] kind of showed that a lot of the behaviors as far as the toxicity of their relationship were still ongoing throughout the case."
Indeed, the foster care worker testified that domestic relations remained a barrier despite that respondent-appellant had graduated from a program intended to help victims of domestic abuse, because respondent-appellant gave no indication of having gained new perspectives on domestic violence, it was apparent from "screen shots" that she "was still sending threatening messages . . . to [the father], and it was reported that there was some sort of a car chase between the parents due to jealousy issues."
The foster care worker opined that respondent-appellant had not addressed her reunification barriers well enough that the children could be safely returned to her, and that respondent-appellant had exhausted available services.
II. STATUTORY GROUNDS FOR TERMINATION
On appeal, respondent-appellant argues that the trial court erred by concluding that termination of her parental rights was warranted under three statutory criteria.
An appellate court "review[s] for clear error . . . the court's decision that a ground for termination has been proven by clear and convincing evidence . . . ." In re Trejo, 462 Mich 341, 356-357; 612 NW2d 407 (2000). "Clear error exists when some evidence supports a finding, but a review of the entire record leaves the reviewing court with the definite and firm conviction that the lower court made a mistake." In re Dearmon, 303 Mich App 684, 700; 847 NW2d 514 (2014). This Court must defer to the trial court's special opportunity to observe the witnesses. Id. "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).
The trial court did find that termination of respondent-appellant's parental rights was in the best interests of the children, but respondent-appellant does not challenge that finding on appeal but for touching on best interests while taking issue with the trial court's findings relating to the statutory termination criteria. --------
The trial court terminated respondent-appellant's parental rights under MCL 712A.19b(3)(c)(i), (g), and (j), which provide:
(3) The court may terminate a parent's parental rights to a child if the court finds, by clear and convincing evidence, 1 or more of the following:
* * *
(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.
* * *
(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.
* * *
(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.
With regard to MCL 712A.19b(3)(c)(i), the trial court's comments concerning respondent-appellant's failure to rectify the conditions that led to the children's removal included the following:
[A]mple services were offered . . . . Barriers were . . . emotional stability, parenting skills, domestic violence, income, and housing.
With respect to the mother, . . . [t]he psychological evaluation . . . recommended that she engage in therapy and counseling, and . . . that she not engage in a relationship with [the father].
[Respondent-appellant's therapist] identified a . . . long history of trauma and emotional dysregulation, and believes that the mother suffers from posttraumatic stress disorder, a chronic subtype disorder which is not temporary or due to one incident or occurrence, but a long series of events, which requires a long road to recovery and a long period of treatment and many years to overcome. . . . [H]er relationship with [the father] is volatile. It involved verbal, physical, and sexual abuse, and the relationship doesn't work, yet the evidence suggests that they're continuing to see each other.
* * *
. . . [I]t's become clear . . . that with regards to emotional stability and self-regulation, [respondent-appellant] was not able to self-regulate. The record was clear from [the service providers] that the mother's aggression, anger, and hostility towards the service providers . . . became so dysfunctional due to her anger and aggression and inability to act in a rational manner . . . that . . . those services . . . had to end, that she hasn't benefitted and reduced that barrier, emotional stability. . . .
With respect to parenting skills, . . . Supportive Parenting Program through Catholic Charities was offered . . . . The mom did engage in this service . . . . She wasn't able to complete the program . . . due to death threats . . . , at this point it is not clear to the Court whether [respondent-appellant] made the death threats or whether her husband made the death threats, but as a result those threats were communicated to [petitioner] and as a result Catholic Charities discontinued that service. To her credit, the mother then did go forward and participate voluntarily in the Alpha Women's Program. But incredibly, . . . the mom states she doesn't need to improve her parenting skills, that she's a good mom.
Frankly, I don't see any evidence at this point that she has improved her parenting skills as she doesn't believe she has issues with . . . parenting, despite the CD or tape that the Court listened to . . . involving . . . a long argument between the parents in the presence of the children. The mother acknowledges that that argument . . . should not have occurred, but doesn't recognize that that was bad parenting. And the Court is satisfied that she hasn't taken ownership of the reasons the children were removed, and frankly, doesn't believe these kids were traumatized. . . .
Another barrier . . . was domestic violence. In this case, there has been and is a long history of domestic violence. . . . To Mom's credit, she . . . graduated from the [domestic violence] program. But there was ongoing verbal harassment between the parents throughout this case. Threatening messages were
sent. . . . And that violent behavior, aggressive, hostile, angry attitude continued throughout the case.The court further noted that there had been no parenting time since the previous several months, and that "[t]here never came a point where the parents could engage in family therapy because interactions between the kids and the parents was still too traumatic more than a year after they'd been removed from the home."
* * *
The Wraparound meetings . . . are indicative of . . . the mother's failure to address the barriers that led to the children's removal. . . . These . . . meetings were generally unproductive, and people quit coming because of that unproductivity. The . . . mother was venting her frustrations with [petitioner] and the service providers. They weren't even able to establish goals. She wouldn't cooperate . . . and just wanted to vent. She got so mad on one occasion that they made her leave because she was so angry and escalated. [Petitioner] indicated that no other services are available. They've exhausted all without benefit.
Concerning the failure to provide proper care or custody, MCL 712A.19b(3)(g), the trial court acknowledged that much of the analysis for (c)(i) also applied, reiterated its concern for respondent-appellant's failure to benefit from services, and added that "the therapist[s] never could reach a consensus that it was appropriate, or wouldn't be detrimental to the kids, to even engage in supervised family counseling with the parents. It was simply too traumatic for them."
In addressing the risk of harm to the children if returned to respondents, MCL 712A.19b(3)(j), the trial court acknowledged that its earlier analysis as concerned "the areas of domestic violence and emotional regulation or emotional instability" applied, and added that "neither respondent has satisfied the Court that they have sufficiently addressed that issue wherein the children could be safely returned to their home."
On appeal, respondent-appellant first argues that she was the victim of a "rush to terminate," asserting that the progress she had made with her service plan rendered premature the trial court's order that petitioner pursue termination after the children had been in foster care for just under 14 months. MCL 712A.19b(3)(c)(i) authorizes termination for failure to rectify the conditions of the adjudication after as little as 182 days, or less than half as long as the court waited in this case. Further, the several review hearings all brought to light only spotty signs that respondent-appellant had benefited from services, as well as every reasonable willingness on the part of the court, petitioner, and the children's advocate to give her the opportunity to demonstrate real progress. Further, respondent-appellant neither asserts that she had in fact rectified the barriers the trial court found continued to exist, nor expresses disagreement with the trial court's recognition that the service providers consistently opined that progress on her part would require still greater time commitments. "[T]he Legislature did not intend that children be left indefinitely in foster care, but rather that parental rights be terminated if the conditions leading to the proceedings could not be rectified within a reasonable time." In re Dahms, 187 Mich App 644, 647; 468 NW2d 315 (1991), citing MCL 712A.19b(3)(c)(i). For these reasons, respondent-appellant fails to show that the trial court was at all hasty in concluding that termination was warranted.
Respondent-appellant complains that such alternative permanency plans as a guardianship were not fully explored, but acknowledges that the children's advocate discussed this option at the last review hearing. The L-GAL stated that she might have liked to have suggested a guardianship arrangement, but that no suitable relative came to mind for such purpose. Respondent-appellant herself neither nominates a potential such guardian, nor suggests that any workable suggestion of a guardianship arrangement was ever offered to petitioner or the court.
Respondent-appellant next argues that she was deprived of services. See Tallman v Milton, 192 Mich App 606, 614-615; 482 NW2d 187 (1992) (setting forth petitioner's duty to make reasonable efforts toward reunification), citing MCL 712A.19a(4). Respondent-appellant does not dispute the trial court's finding that she had exhausted available services, but rather asserts that the father hindered her ability to make progress, and argues that "[t]he lack of investigation into his lying . . . rose to the level of . . . failing to make reasonable efforts to rectify conditions and reunify families." Respondent-appellant further protests that the father's "efforts to control and abuse [her] rose to the greatest level of deceit when he got her reunification services terminated by falsely alleging she made threats to physically harm professionals." Respondent-appellant however cites no authority for the proposition that the duty to offer reunification services includes a duty to launch an investigation in response to a possibly antagonistic person's allegations of a parent's misconduct. Further, the trial court did not accept at face value allegations attributed to the father's reports that respondent-appellant had offered death threats, but rather specifically disclaimed forming any such opinion. Nor did the court suggest that it considered dispositive the resulting discontinuation of the intensive parenting class with Catholic Charities. The court did, however, show great concern for respondent-appellant's persistent "aggression, anger, and hostility towards the service providers," as well as disinclination to appreciate her own responsibility for the children's removal.
Respondent-appellant further protests that the trial court was hasty in suspending, then declining to resume, parenting time with the younger three children. In particular, respondent-appellant asserts that the court deprived her of parenting time because it would not be "beneficial" to the children, where the court was obliged to allow parenting time unless it would be "harmful" to the children, citing MCR 3.965(C)(7). Although the home-based specialist did testify that she was never able to conclude that a resumption of parenting time would be "beneficial" to those children, she also described the PTSD that two of the children were diagnosed with, and the "more generalized trauma" from which the third suffered, and also how the oldest of those three suffered "distress" or "anxiety," and the younger two exhibited "heightened anxiety" and problematic behaviors, from interactions with respondents. And the foster care worker answered negatively when asked if respondent-appellant's reunification barriers were addressed well enough that the children could be "safely" returned to her. The trial court thus had before it ample indications that the three younger children were unusually vulnerable to emotional injury, and that a resumption of parenting time would be harmful, as opposed to merely not beneficial, to them.
Respondent-appellant additionally argues that the trial court failed to consider the subject children individually. In support of her argument, she quotes In re Olive/Metts, 297 Mich App 35, 42; 823 NW2d 144 (2012), in which this Court stated that a trial court "has a duty to decide the best interests of each child individually." Respondent-appellant thus suggests that this duty applies as well to findings under the statutory termination factors. To the extent that this rule relating to inquiry into best interests has bearing on inquiry into statutory termination factors, also instructive is this Court's clarification in In re White, 303 Mich App 701, 715-716; 846 NW2d 61 (2014), that Olive/Metts "stands for the proposition that, if the best interests of the individual children significantly differ, the trial court should address those differences when making its determination of the children's best interests," but "does not stand for the proposition that the trial court errs if it fails to explicitly make individual and—in many cases—redundant factual findings concerning each child's best interests." In this case, respondent-appellant concedes that there was ample evidence to show that the oldest child "was adamant that she not return to the parties," but argues that such a problem "is not necessarily the case with the second oldest, and not the case with the youngest two." Respondent-appellant does not otherwise suggest that there were significant differences in how the children were situated in connection with the three statutory bases for termination, including how they bore on the trial court's reliance on expert testimony for its finding that "[t]here never came a point where the parents could engage in family therapy because interactions between the kids and the parents was still too traumatic more than a year after they'd been removed from the home." The trial court acknowledged the special emotional vulnerabilities characteristic of each of the three younger children. For these reasons, we do not find persuasive respondent-appellant's protestations that the trial court did not sufficiently consider the circumstances of the individual children.
Respondent-appellant similarly argues that the trial court failed to distinguish between the two respondents. She cites In re Sanders, 495 Mich 394; 852 NW2d 524 (2014), in which our Supreme Court held that "the state must adjudicate a parent's fitness before interfering with his or her parental rights," as opposed to adjudicating just one parent and then exposing the other parent to all the attendant risks and burdens. Id. at 420. Respondent-appellant does not assert that any such constitutional deficiency infected this case, but suggests that Sanders is instructive in connection with her protestations that the trial court imputed to her some parenting failures properly attributable to the father. In particular, respondent-appellant points out that the trial court elicited an affirmative response upon asking respondent-appellant's therapist if a consequence of the children's PTSD was that to return the children "into the same situations that caused that . . . would be a long term issue," and argues that "the question was no longer relevant" given that "[t]he parents were separated" and respondent-appellant "had benefited from domestic violence therapy, parenting classes, DBT and trauma therapy." However, as discussed earlier, the trial court had a reasonable basis for concluding that respondent-appellant had benefited only minimally from those services. And the court's concern that "the evidence suggests that [respondents were] continuing to see each other" was supported by the foster care worker's account at the termination hearing of the continued existence of a "toxic" relationship based on "screen shots of messages that were between both parents," from which "it was clear that they were maintaining that back and forth," along with a report that "there was some sort of a car chase between the parents due to jealousy issues."
For these reasons, respondent-appellant has failed to show that the trial court clearly erred in concluding that clear and convincing evidence proved that termination of her parental rights was warranted under each of the three statutory criteria.
Affirmed.
/s/ Jane M. Beckering
/s/ Deborah A. Servitto
/s/ Cynthia Diane Stephens