Opinion
No. 345458
05-16-2019
In re WEBB/NORMAN/BRAXTON, Minors.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Macomb Circuit Court Family Division
LC Nos. 2016-000228-NA 2016-000229-NA 2016-000230-NA 2016-000231-NA Before: SWARTZLE, P.J., and M. J. KELLY and TUKEL, JJ. PER CURIAM.
Respondent appeals as of right the trial court's order terminating her parental rights to the minor children, JW, PN, KB, and KVB, pursuant to MCL 712A.19b(3)(c)(i), (g), and (j). Because we find no error requiring reversal, we affirm.
The trial court also terminated the parental rights of AN and KB, Sr., the fathers of PN, KB, and KVB. They have not appealed the trial court's order. PC, the father of JW, voluntarily relinquished his parental rights. None of the fathers are a party to this appeal.
I. BASIC FACTS
On August 9, 2016, respondent was pulled over for speeding. During the stop, the police determined that respondent was driving with a blood alcohol concentration of 0.12, had open intoxicants in the vehicle, and had a suspended driver's license. They also noted that PN, KB, and KVB were not properly secured in an appropriate child-restraint system. As a result, respondent pleaded guilty to three offenses: (1) operating a motor vehicle under the influence of alcohol, occupant under 16 years of age, (2) operating a vehicle with a suspended license, and (3) open alcohol container in a vehicle. The children were placed with their maternal grandmother, and, on August 16, 2016, DHHS filed a petition seeking termination of respondent's parental rights at the initial dispositional hearing.
After the filing of the petition, respondent voluntarily participated in some services, including a CARE substance abuse assessment and parenting classes. Furthermore, in September 2016, respondent reported possible American Indian heritage. Notice was given pursuant to the Indian Child Welfare Act (ICWA), 25 USC 1901 et seq. and the Michigan Indian Family Preservation Act (MIFPA), MCL 712B.1 et seq., and in October 2016, the Osage Nation intervened in the proceedings. Subsequently, DHHS changed its goal to reunification, requesting the court to take jurisdiction of the children, make them temporary wards, and permit respondent to work toward reunification. Respondent pleaded no-contest to the amended petition and the court exercised jurisdiction over the children. Pursuant to the court-ordered treatment plan (PATP), respondent was required to attend parenting classes, parenting time, a substance abuse assessment, and a psychological evaluation. In addition, she was ordered to obtain and maintain suitable housing and a legal source of income. DHHS was ordered to comply with the mandates of ICWA and the MIFPA when servicing the family.
Over the next year, respondent's participation in her PATP ranged from inconsistent to poor. Further, in March 2017, the children's maternal grandmother and caregiver suffered a major heart attack and was hospitalized. Respondent waited 10 days before notifying the caseworker, and, unbeknownst to DHHS, respondent and an out-of-state relative were caring for the children. After a few weeks, however, the relative left Michigan, and on April 11, 2017, the children were placed into separate foster homes.
It was acknowledged that the foster homes were not ICWA compliant. However, because of the emergency need for foster homes, the unavailability of relative caregivers, and the lack of Native licensed foster homes in the area, the Osage Nation consented to the children's placement. No one disputed that active efforts were consistently made to search for an ICWA-compliant placement for the children.
On April 28, 2017, the children's grandmother died. In the months that followed, respondent's progress with her PATP became more inconsistent. For instance, she failed to attend substance abuse treatment and missed all of her drug screens in May 2017. Respondent claimed that she was having difficulty complying because of her mother's death. During two family team meetings, she became so angry that security guards were called and the meetings were cut short. By October 2017 respondent was completely non-compliant with her PATP, and the record reflects that she had not truly participated in any case services since the end of August. Most concerning was respondent's lack of contact with her children. Respondent visited the children on September 6, 2017, but failed to attend any parenting time after that date. In light of respondent's minimal progress, on October 17, 2017, the court authorized the filing of a supplemental petition seeking termination of respondent's parental rights to her children.
The termination hearing was held over seven days and concluded in August 2018. At the conclusion of the hearing, the court terminated respondent's parental rights. In doing so, the court found that the requirements of the ICWA and the MIFPA were satisfied, i.e., that active effects were made to prevent the breakup of the family and that there was proof beyond a reasonable doubt that continued custody of the children by respondent would likely result in serious emotional or physical harm. See In re England, 314 Mich App 245, 253; 887 NW2d 10 (2016). The court went on to find that there was clear and convincing evidence supporting termination under MCL 712A.19b(3)(c)(i), (g), and (j), and that termination of respondent's parental rights was in the children's best interests.
This appeal follows.
II. STATUTORY GROUNDS
A. STANDARD OF REVIEW
Respondent argues that the trial court erred by finding clear and convincing evidence to terminate her parental rights under MCL 712A.19b(3)(c)(i), (g), and (j). In order to terminate parental rights under state statutory grounds, the trial court must find that at least one of the statutory grounds for termination has been established by clear and convincing evidence. In re Trejo, 462 Mich 341, 355; 612 NW2d 407 (2000). This Court reviews the trial court's findings under the clear-error standard. MCR 3.977(K). A finding is clearly erroneous if the reviewing court is left with a definite and firm conviction that a mistake has been committed. In re Miller, 433 Mich 331, 337; 445 NW2d 161 (1989).
B. ANALYSIS
At the outset, we note that respondent does not address whether the trial court also erred by finding that the procedural and substantive provisions of the ICWA and the MIFPA were satisfied. Yet, as it is undisputed that the children are eligible for membership in the Osage Nation and, therefore, qualified as Indian children, the procedural and substantive provisions of ICWA and MIFPA also applied to these proceedings. In proceedings involving termination of parental rights, ICWA and the MIFPA "require a dual burden of proof." In re Payne/Pumphrey/Fortson, 311 Mich App 49, 58; 874 NW2d 205 (2015). "That is, in addition to finding that at least one state statutory ground for termination was proven by clear and convincing evidence," a trial court must also make additional findings required by the ICWA and the MIFPA before terminating parental rights. In re England, 314 Mich App at 253. In In re England, this Court succinctly stated those requirements:
The specific findings required by the ICWA and the MIFPA in termination proceedings are: (1) proof that active efforts were made to prevent the breakup of the family, 25 USC 1912(d); MCL 712B.15(3); MCR 3.977(G)(1); and (2) proof beyond a reasonable doubt that the continued custody of the child by the parent would likely result in serious emotional or physical damage to the child, 25 USC 1912(f); MCL 712B.15(4); MCR 3.977(G)(2). [Id.]Because a court's findings on statutory grounds are inextricably linked to its findings under the ICWA and the MIFPA, id. at 254, we will briefly discuss the court's findings under the ICWA and the MIFPA.
The court found by clear and convincing evidence that active efforts were made to prevent the breakup of the family. See id. at 259 (applying the clear and convincing evidence standard to the court's finding that active efforts were made). As explained recently by this Court,
[A]ctive efforts are defined as actions to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and to reunify the Indian child with the Indian family. Active efforts require affirmative, as opposed to passive, efforts, and active efforts require more than the standard reasonable-efforts approach. Active efforts require more than a referral to a service without actively engaging the Indian child and family. Active efforts entail a caseworker taking a client through the steps of a treatment plan rather than requiring the client to perform the plan on his or her own. [In re Beers/Lebeau-Beers, ___ Mich App ___, ___; ___NW2d ___ (2018) (Docket Nos. 341100 & 341101); slip op at 14 (Citations and quotation marks omitted).]In this case, a PATP was developed to address the barriers to reunification, and respondent's caseworker made several referrals to facilitate respondent's participation. After providing the referrals, the caseworker continued to provide support. The record reflects that multiple family team meetings were held and the caseworker frequently spoke with respondent—in person, by text message, and by telephone—about the requirements of the treatment plan. The caseworker also provided respondent with bus tickets to assist her with her transportation issues, and she sought respondent's relatives to assist respondent in her reunification efforts. The caseworker also referred respondent to a parent partner program to assist respondent in reaching her treatment goals. The parent partner helped respondent learn how to use the bus system and drove respondent to parenting time, family team meetings, and court hearings.
The record also reflects that after the children were placed in non-relative foster homes, the caseworker facilitated parenting time visits, and, throughout these proceedings, the caseworker made significant efforts to find an ICWA-compliant foster home for the children. When respondent stopped participating in services, the caseworker made multiple visits, both announced and unannounced, to respondent's home in an effort to reengage her in services. The caseworker would leave her card, but respondent failed to contact her. The parent partner met face to face with respondent for a similar purpose. When respondent was not participating in her substance abuse treatment and the service providers threatened to close the case, the caseworker interceded on respondent's behalf to implore the providers to keep her case open longer.
The caseworker additionally maintained regular contact with Destiny Kitchell, the Indian child welfare specialist with the Osage Nation Social Services in Oklahoma. Kitchell was extremely complimentary of the efforts expended by DHHS to comply with ICWA and keep the Osage Nation informed. Kitchell was particularly impressed with the caseworker's continual, albeit unsuccessful, efforts to find ICWA-compliant foster homes and with the caseworker's quest for knowledge regarding tribal customs to share with the family. Kitchell spoke with respondent four to six times a month through text messages and phone calls. Kitchell even attempted, unsuccessfully, to meet with respondent when respondent was in Oklahoma for her mother's funeral. Kitchell opined that active efforts were made to make available to respondent remedial and rehabilitative programs. Given the foregoing evidence, the trial court did not err when it found that active efforts had been made, that respondent refused to participate in services, and that further efforts would not likely be successful in removing the barriers to reunification.
In addition to the finding of "active efforts," a trial court may not terminate a parent's rights over an Indian child unless the court finds evidence beyond a reasonable doubt—including testimony of at least one qualified expert witness—that continued custody of the child is likely to result in serious physical or emotional damage to the Indian child. 25 USC 1912(f); MCL 712B.15(4); MCR 3.977(G)(2). In re Beers/Lebeau-Beers, ___ Mich App at ___; slip op at 3, 15. In this case, the trial court made such a finding after considering that respondent had failed to comply with and benefit from the treatment plan. The court noted that respondent minimized and denied the circumstances that caused the children to come into care, denied having substance abuse issues, failed to participate in drug screens and substance abuse therapy, and missed parenting time for more than five months. In addition, when respondent should have been invested in services and addressing the barriers to reunification, she instead engaged in irresponsible activities that garnered her additional criminal charges and civil infractions. The trial court also considered the opinion of the qualified tribal expert witness that termination of parental rights was in the children's best interests. Finally, the court considered the opinion of Dr. Ryan that respondent was not capable of responding to the demands of her special needs children. Considering this evidence, the trial court did not clearly err when it found beyond a reasonable doubt that custody of the children by respondent would likely result in serious emotional or physical damage to the children.
In addition, the court did not clearly err by finding that termination was warranted under MCL 712A.19b(3)(c)(i) and (j), which provide in relevant part:
(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.
* * *
(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.
Respondent's children were removed from her care and adjudicated temporary court wards because of allegations of neglect and substance abuse. The evidence showed that respondent was driving under the influence of alcohol while three of her children were in the car. Two children were not properly restrained in appropriate car seats. Respondent also had a prior CPS history that included the filing in 2008 of a permanent custody petition. Ultimately that matter concluded with respondent voluntarily relinquishing her parental rights to her four older children. In the present case, respondent was ordered to participate in a treatment plan that required her to attend parenting classes, parenting time, a substance abuse assessment, drug screens, and a psychological evaluation. In addition, she was ordered to obtain and maintain suitable housing and a legal source of income. Respondent was also required to participate in substance abuse treatment. The caseworker referred respondent for the necessary services.
Respondent participated in some services. She completed a parenting class and received hands-on assistance from a parenting partner. However, she did not benefit from the services offered. While the children were in care, respondent stopped communicating with the caseworkers, failed to participate in drug screens, continued to drive with a suspended license, and incurred an additional criminal charge and multiple civil infractions. In addition, respondent stopped attending parenting time in early September 2017. Eventually, on February 8, 2018, the court suspended respondent's parenting time. Consequently, while respondent still had the ability to do so, she went five months without visiting her children or inquiring into their well-being. As a result of respondent's decision to disappear on her children, the parenting partner was required to terminate respondent from the program. Thus, it is clear that respondent did not benefit from her parenting classes or the hands-on assistance she received from the parenting partner because she continued to behave in a manner that confirmed her unwillingness to put her children's needs ahead of her own.
Respondent also failed to comply with the substance abuse component of her treatment plan. After several missed appointments, respondent attended an intake appointment on February 3, 2017, which resulted in a recommendation that she participate in individual and group therapy. Yet, respondent only sporadically attended the substance abuse program and she was terminated from the services in the fall of 2017. Respondent was also ordered to participate in drug screens twice a month, and she was offered 31 screens while the children were in care. Respondent missed 19 of those screens. Of the 12 in which she participated, two were positive for marijuana. At the termination hearing, respondent declined to take responsibility for the positive drug screens; she adamantly denied smoking marijuana or having any substance abuse issues and insisted that the positive test results were from secondhand marijuana smoke exposure.
In addition, respondent failed to fully address the legal issues that arose from her driving under the influence of alcohol and with a suspended license. Because respondent continued to drive with an invalid license, she picked up additional civil infractions. During the proceedings, she was cited for failing to appear on her cases, violating probation, speeding, and driving with a suspended license. She was also convicted of uttering and publishing. When the termination hearing began, she had 10 outstanding warrants. Respondent admitted that she did not attend court hearings because she feared being arrested on the warrants. Respondent's irresponsible behavior during a time when every move was fully monitored suggested that she was unwilling to make lifestyle changes for the benefit of her children.
There was also clear and convincing evidence that respondent would not be able to rectify the conditions leading to adjudication within a reasonable time. The children were in care for approximately two years, and during that time respondent was provided with numerous services, but could not show that she benefited from receiving the services. For example, in the 2008 case, Dr. Ryan evaluated respondent when she was 20 years old. At that time, respondent did not show any major mental disorder. However, when Dr. Ryan evaluated respondent in the instant case, he concluded that respondent suffered from major depression and anxiety, both of which he believed were, theoretically, treatable through a significant medication regime and psychological counseling. However, Dr. Ryan, found that respondent's compliance with long-term treatment would be problematic and that she would have a difficult time making the necessary lifestyle changes. Dr. Ryan opined that it would take years for respondent to work through her issues because of compliance problems.
Respondent attributes her lack of progress on achieving the goals of her treatment plan to the grief she experienced after the death of her mother in April 2017. Although the loss of a parent understandably can cause deep sadness and despair, respondent had four young children who were waiting for her to achieve the stability necessary to warrant reunification of the family. Moreover, at least two witnesses testified that respondent had not been making significant progress before the death of her mother and, in fact, from the outset, respondent was resistant to participating in services.
Considering the foregoing, the trial court did not err when it found clear and convincing evidence to support termination of respondent's parental rights pursuant to MCL 712A.19b(3)(c)(i) and (j).
The trial court also terminated respondent's parental rights under MCL 712A.19b(3)(g). MCL 712A.19b(3)(g) has been amended, effective June 12, 2018. See 2018 PA 58. Under the amended version of the statute, a parent who fails to provide proper care or custody "although, in the court's discretion, financially able to do so," may have their parental rights terminated. MCL 712A.19b(3)(g), as amended by 2018 PA 58. The termination of respondent's parental rights occurred on August 28, 2018, so the amended version of the statute was in effect. The trial court, however, applied the pre-amendment version of the statute. In doing so, the court erred by failing to make findings consistent with the amended statute. However, only one statutory ground was required to terminate parental rights. See In re Trejo, 462 Mich at 350. Accordingly, the court's error does not warrant reversal. --------
III. BEST INTERESTS
Respondent also argues that the trial court erred when it found that termination of her parental rights was in the children's best interests. The trial court announced its best-interest decision at a hearing on August 28, 2018. A transcript of that hearing has not been provided, despite a request from this Court. Accordingly, this issue is waived, and we will not address it further. See PT Today, Incorporated v Comm'r of Fin & Ins Servs, 270 Mich App 110, 151-152; 715 NW2d 398 (2006).
Affirmed.
/s/ Brock A. Swartzle
/s/ Michael J. Kelly
/s/ Jonathan Tukel