Opinion
355836
09-16-2021
In re A. J. VANSCOY, Minor.
UNPUBLISHED
Macomb Circuit Court Family Division LC No. 2018-000249-NA
Before: Cameron, P.J., and Jansen and Gleicher, JJ.Per Curiam
Respondent-mother appeals as of right the trial court's order terminating her parental rights to her minor child, AJV, under MCL 712A.19b(3)(b)(i) and (g). We affirm.
Respondent has given birth to three children: DV, AJV, and AV. Only her parental rights to AJV are at issue in this case. In 2015, respondent was convicted of second-degree child abuse after DV was diagnosed with fractures to his ribs, ulna, and radius. A child protective proceeding ensued, but the court terminated its jurisdiction after DV's father obtained full legal and physical custody of DV. Thereafter, in 2018, respondent was charged with physically abusing BW, the young daughter of respondent's then boyfriend, N. Wynn, for which she was later convicted of fourth-degree child abuse. Shortly after these events in 2018, respondent gave birth to AJV, Wynn's son, and the child at issue in this appeal. After AJV's birth, petitioner, the Department of Health and Human Services, filed a petition seeking termination of respondent's parental rights to AJV at the initial disposition. While this matter was pending, respondent gave birth to Wynn's son AV in 2020. Ultimately, in December 2020, the court terminated respondent's parental rights to AJV under MCL 712A.19b(2)(b)(i) and (g). Thereafter, this appeal ensued.
For her first issue on appeal, respondent argues that the trial court erroneously found clear and convincing evidence to terminate her parental rights under MCL 712A.19b(3)(b)(i), (g), (j), and (k)(iii). We find no merit to this issue. The record discloses that respondent pleaded no contest to the existence of statutory grounds for termination under MCL 712A.19b(3)(b)(i) and (g). When a respondent enters a no-contest plea to the existence of statutory grounds for termination, she has waived any argument that there was insufficient evidence to satisfy the standard for proving those statutory grounds. In re Hudson, 294 Mich.App. 261, 264; 817 N.W.2d 115 (2011).
On January 7, 2020, respondent agreed to enter a no-contest plea, for purposes of both adjudication and the existence of statutory grounds to terminate her parental rights. Respondent elected to forgo challenging statutory grounds for termination and, instead, decided to contest only the best-interest determination. At the plea hearing, it was made clear that respondent was stipulating that the allegations in the second amended petition established statutory grounds to terminate her parental rights under MCL 712A.19b(3)(b)(i) and (g). Respondent confirmed that she had an opportunity to consult with her attorney, that she had not been threatened to enter the plea, and that her decision to enter a no-contest plea was made freely and voluntarily. Thereafter, the court, finding that the plea was knowingly, freely, and voluntarily made, accepted respondent's no-contest plea for purposes of adjudication and statutory grounds to terminate her parental rights. Then, the parties agreed to schedule a best-interest hearing in February 2020. When the best-interest hearing actually commenced on August 21, 2020, it was made clear, once again, that respondent had previously pleaded no contest to the allegations in the petition for purposes of adjudication and statutory grounds for termination, and that the parties were present for the best-interest phase only.
It is clear from the record that these allegations satisfied the factual proof for statutory grounds for termination. Accordingly, she cannot now challenge the sufficiency of the record in this regard. Moreover, on appeal, respondent does not assert that her no-contest plea to the existence of statutory grounds for termination was not knowingly, freely, and voluntarily made. Respondent's actions amounted to a waiver. She waived the necessity to take any additional testimony to establish statutory grounds for termination. Respondent's actions controlled the manner in which the matter would proceed going forward. A "[respondent may not assign as error on appeal something that she deemed proper in the lower court because allowing her to do so would permit respondent to harbor error as an appellate parachute." In re Hudson, 294 Mich.App. at 264.
Next, respondent challenges the trial court's determination that termination of respondent's parental rights was in AJV's best interests. We find no error in this regard.
"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 court may consider several factors when deciding if termination of parental rights is in a child's best interests, including the child's bond to the parent, the parent's parenting ability, the child's need for permanency, stability, and finality, and the advantages of a foster home over the parent's home. In re Olive/Metts, 297 Mich.App. 35, 41-42; 823 N.W.2d 144 (2012). The court may also consider psychological evaluations, the child's age, continued involvement in domestic violence, and a parent's history. In re Jones, 286 Mich.App. 126, 131; 777 N.W.2d 728 (2009). Whether termination of parental rights is in a child's best interests must be proven by a preponderance of the evidence. In re Moss, 301 Mich.App. 76, 90; 836 N.W.2d 182 (2013). This Court reviews for clear error a trial court's finding that termination of parental rights is in a child's best interests. In re Jones, 286 Mich.App. at 129.
The trial court did not clearly err when it found that termination of respondent's parental rights was in AJV's best interests. There was overwhelming evidence to support the trial court's finding that AJV would be at risk of harm if returned to respondent's care.
Compelling testimony established that in the years before AJV was removed from respondent's care, she had physically abused two other children. In 2014 and 2015, respondent severely physically abused AJV's older half-brother, DV. This abuse resulted in DV suffering bruising, multiple rib fractures, and fractures to the ulna and radius. When the abuse was discovered, DV presented to the hospital with a recent rib fracture, but also several healing fractures. The evidence indicated that not only did DV suffer physical abuse, but also that respondent failed to seek timely medical intervention. Respondent was convicted of second-degree child abuse and served a jail sentence for the abuse of DV. Approximately three years later, respondent physically abused another child, BW. While BW's injuries were not nearly as severe as DV's, they demonstrated a pattern related to respondent's ability to care for young children. Once again, respondent was convicted of child abuse for her conduct against BW. This history supports that AJV, 2½ years old at the time of termination, would be at risk of harm in respondent's care. It is axiomatic 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 N.W.2d 33 (2001) (quotation marks and citation omitted).
Respondent's criminal convictions do not demonstrate isolated incidences. Indeed, the evidence indicated that respondent lacked and continues to lack the control and patience necessary to parent her children. After respondent's psychological evaluation, Dr. Terry Rudolph concluded that respondent had limited insight regarding her behavior and its impact on others. He also concluded that respondent had problems dealing with stress and conflict, and that she had poor anger control skills. Dr. Rudolph concluded that respondent's psychological issues were chronic. Respondent agreed with Dr. Rudolph's assessment and also conceded that she had an issue with impulsivity, explaining that she had difficulty thinking before she reacted. Respondent also acknowledged that her lack of impulse control "may have" resulted in the bruises on DV's face and body in November 2014, and the fractures in January 2015.
Although respondent was not offered a parent-agency agreement in this case, she previously participated in both voluntary and court-ordered services following her criminal matters. Respondent participated in two parenting classes, two anger-management classes, counseling, and some substance abuse treatment. It is clear that at the time of termination, respondent had not benefited from these services. Respondent was ordered to attend anger management after her conviction for abusing DV, yet she still was unable to control her anger, which resulted in her abusing BW in 2018. Respondent participated in another anger-management class in April 2019, yet she was actively involved in a physical altercation between Wynn and S. Anderson, another boyfriend, in July 2019. Before Wynn stabbed Anderson several times, respondent engaged in a heated text exchange with Anderson. During the best-interest hearing, respondent admitted that the altercation between Wynn and Anderson could have been avoided had she been able to control her impulsivity.
Despite respondent's assertions to the contrary, there is little evidence to support a finding that respondent had improved her impulse control or anger management. As mentioned, Dr. Rudolph found that respondent's psychological issues were chronic. Respondent's therapist opined that while respondent was addressing her issues, the process would be a long one. Further, respondent's own testimony indicated that she was unwilling to work to achieve the maximum benefit from treatment. This is evident by respondent's testimony that she did not like her anger-management class, so she found that the class was not helpful.
Based on the foregoing, there was overwhelming evidence that AJV would be at risk of harm in respondent's care. Respondent was unable to control her impulses to safely and appropriately parent a small child.
Respondent's history of involvement in relationships with domestic violence further supports the trial court's determination that termination of respondent's parental rights was in AJV's best interests. Respondent conceded that her relationships with Wynn and Anderson were fraught with domestic violence. Both men had physically assaulted respondent several times. On multiple occasions, the police were called to intervene. Respondent vacillated on whether domestic violence was an issue in her relationships. She admitted that she was concerned about a continued relationship with Anderson, and asserted that she would not allow him around her children. Respondent also represented that she was no longer in romantic relationships with these men, but that they remained just friends. Respondent's testimony in this regard lacked credibility. A week before the best-interest hearing, respondent gave birth to AV, and Wynn was identified as the putative father. At the time of this child's birth, respondent selected Anderson to be the support person in the hospital with her. Further, respondent disclosed that she had recently spent nights in a hotel room with Anderson because she had been locked out of her father's home after staying out late at night. Respondent's contacts with Wynn and Anderson shortly before the best-interest hearing in this matter are not consistent with an individual who has severed ties to physically abusive men. They certainly are not the actions of a parent who is able to identify risks of harm to her child. While this Court held in In re Plump, 294 Mich.App. 270, 273; 817 N.W.2d 119 (2011), that "it would be impermissible for a parent's parental rights to be terminated solely because he or she was a victim of domestic violence," this is not a situation where termination of parental rights was based simply on respondent's status as a victim of abuse. The domestic violence was in addition to the evidence that respondent was the perpetrator of child abuse on more than one occasion. Further, respondent had yet to fully address the issue of domestic violence during counseling. Her therapist opined that it would be a long process. Thus, at the time of termination, respondent had not demonstrated that she was capable of avoiding abusive relationships, and this circumstance placed her child at risk of harm.
In addition to the foregoing, there was also evidence that respondent had a substance abuse issue that had yet to be fully addressed. Respondent admitted that after AJV was removed in July 2018, she spiraled and began abusing alcohol and cocaine. In February 2019, she was arrested and eventually convicted of driving under the influence of alcohol. At the time of her arrest, her blood alcohol level was 0.25%. She was sentenced to nonreporting probation and also required to participate in a three-day alcohol awareness program, which she completed in July 2020. In August 2019, respondent tested positive for cocaine. Respondent admitted to previously having a substance abuse issue, but averred at the best-interest hearing that she had put that issue behind her. Although respondent represented that she had been drug free for 13 months preceding the best-interest hearing, she conceded that she had screened only three times during that period. Respondent did not screen during her incarceration or immediately after her release. Indeed, at the October 2020 hearing, respondent claimed that she had only recently started calling in to the drug screening facility. Respondent stated that she failed to call in to the screening program because she had lost the telephone number and personal identification number. Respondent's compliance with drug screening simply was not available to verify her abstinence. The evidence that was presented, however, confirmed that respondent's confrontation of her substance abuse issues was a work in progress. Respondent admitted that she only recently began participating in counseling, in earnest, in July 2020. The related opinion of her therapist was that while respondent was making progress, the process would be long. Considering this, a preponderance of the evidence confirmed that respondent had not fully addressed or overcome her substance abuse issues.
Finally, at the time of termination, respondent lacked suitable housing. While she testified about being gainfully employed, she continued to live with her father and stepmother with her only expense being that of a monthly cell phone bill. Respondent testified at the August 2020 hearing that she hoped to have her own housing within the next two months. When the hearing resumed in October 2020, there was no evidence that this goal had been achieved.
Considering all of the evidence, the trial court did not clearly err when it found that termination of respondent's parental rights was in AJV's best interests. Respondent's impulsivity, substance abuse, anger-management issues, and inability to break the cycle of domestic abuse were circumstances that placed AJV at continued risk of harm in respondent's care.
Affirmed.
Thomas C. Cameron, Kathleen Jansen, Elizabeth L. Gleicher