Opinion
No. 334832
04-11-2017
In re W. AGNEW, Minor.
UNPUBLISHED Macomb Circuit Court Family Division
LC No. 2015-000017-NA Before: O'CONNELL, P.J., and GLEICHER and BOONSTRA, JJ. PER CURIAM.
Respondent-mother appeals by right the trial court's order terminating her parental rights to her child under MCL 712A.19b(3)(c)(i) (the conditions that led to adjudication continue to exist), MCL 712A.19b(3)(g) (failure to provide proper care or custody), and MCL 712A.19b(3)(j) (reasonable likelihood of harm if the child returned to the parent). We affirm.
I. FACTUAL BACKGROUND
The Department of Health and Human Services (DHHS) removed the child from respondent's care because she was abusing heroin, had untreated mental health issues, had pending criminal charges, and was unable to provide the child with food, clothing, or shelter. Respondent stipulated to these allegations, and the trial court placed the child with his maternal grandmother.
Respondent's treatment plan required, among other things, that respondent address her serious and long-standing substance abuse and maintain stable housing and an adequate income to support the child. During the 20 months the child was in care, respondent twice relapsed on heroin. She also repeatedly failed to attend drug screens, engaged in drug-seeking behaviors, and failed to visit the child from February to May 2016. At the time of the termination hearing, respondent had been drug-free for four months, was employed, and was living in a three-quarter house. However, respondent's housing was not suitable for the child. Respondent acknowledged that she had been using drugs since the age of 12 or 13 and the longest period she had ever been drug-free was for seven or eight months during her pregnancy.
The trial court found that there was clear and convincing evidence that respondent had failed to comply with or benefit from her service plan. It found that the conditions leading to adjudication continued to exist and would likely continue to exist in the future. Regarding the child's best interests, the trial court found that respondent loved the child but had demonstrated that she had no ability to care for or protect him because of her persistent instability and struggles with drug use. The trial court terminated respondent's parental rights.
II. STANDARDS OF REVIEW
This Court reviews for clear error the trial court's factual findings and ultimate determinations on the statutory grounds for termination. In re Mason, 486 Mich 142, 152; 782 NW2d 747 (2010). We also review for clear error the trial court's determination regarding the children's best interests. In re White, 303 Mich App 701, 713; 846 NW2d 61 (2014). "A finding of fact is clearly erroneous if the reviewing court has a definite and firm conviction that a mistake has been committed, giving due regard to the trial court's special opportunity to observe the witnesses." In re BZ, 264 Mich App 286, 296-297; 690 NW2d 505 (2004).
III. STATUTORY GROUNDS
Respondent argues that the trial court improperly terminated her parental rights because she had demonstrated through her progress before the termination hearing that there was a reasonable likelihood she would be able to care for the child within a reasonable time. We disagree.
The trial court must find the existence of a statutory ground by clear and convincing evidence to terminate a parent's parental rights. Mason, 486 Mich at 166. Clear and convincing evidence is "evidence so clear, direct and weighty and convincing as to enable [the factfinder] to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue." In re Martin, 450 Mich 204, 227; 538 NW2d 399 (1995) (quotation marks and citation omitted, alteration in original). MCL 712A.19b(3)(c)(i) provides that the trial court may terminate a parent's rights if
[t]he 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.This statutory ground exists when the conditions that brought the children into foster care continue to exist despite "time to make changes and the opportunity to take advantage of a variety of services." In re Powers Minors, 244 Mich App 111, 119; 624 NW2d 472 (2000).
MCL 712A.19b(3)(g) provides that the trial court may terminate a parent's rights if
[t]he 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.And MCL 712A.19b(3)(j) provides that the trial court may terminate parental rights if
[t]here 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.A parent's failure to comply with his or her service plan is evidence that the parent will not be able to provide a child with proper care and custody and that the child may be harmed if returned to the parent's home. White, 303 Mich App at 710-711. Additionally, the trial court may properly consider the parent's substance abuse when determining whether it is reasonably likely that the child will be harmed if returned to the parent's home. See In re AH, 245 Mich App 77, 87; 627 NW2d 33 (2001).
In this case, DHHS removed the child from respondent's care because of her substance abuse, mental health issues, and lack of stable income and housing. Respondent began using drugs at the age of 12 or 13. During the 20 months the child was in care, respondent only demonstrated progress on these issues in the final four months. However, throughout the case, respondent also demonstrated a history of recovery and relapse, including through her multiple relapses during the time the child was in care. Respondent also admitted that the longest she had been able to remain sober had been immediately before the child's birth. Given respondent's history of drug use and relapse, we are not definitely and firmly convinced that the trial court made a mistake when it found that, despite respondent's progress in the four months preceding the termination hearing, it was not reasonably likely that respondent would be able to care for the child within a reasonable period of time. We conclude these facts supported the trial court's findings that clear and convincing evidence established grounds to terminate respondent's parental rights under MCL 712A.19b(3)(c)(i), (g), and (j).
IV. BEST INTERESTS
Respondent argues that the trial court erred by finding that termination was in the child's best interests because she was employed, engaged in maintaining sobriety, and was actively bonded with the child. Respondent also contends that terminating her parental rights violated this state's policies, which are designed to keep children with their parents.
First, while this state's policy is to keep parents and children together, that policy was not controlling by the time the trial court was considering the child's best interests.
Parents have a significant constitutional liberty interest in the care and custody of their children. In re Miller, 433 Mich 331, 346; 445 NW2d 161 (1989). But once DHHS has established that a parent is unfit, the parent's rights yield to the state's interests in protecting the child. In re Sanders, 495 Mich 394, 409-410; 852 NW2d 524 (2014). Accordingly, by the best-interests phase of the proceedings, the trial court must order the parent's rights terminated if it finds from a preponderance of evidence that termination is in the children's best interests. See MCL 712A.19b(5); In re Olive/Metts Minors, 297 Mich App 35, 40; 823 NW2d 144 (2012); In re Moss, 301 Mich App 76, 83; 836 NW2d 182 (2013). As previously discussed, DHHS established that statutory grounds supported terminating respondent's parental rights. Accordingly, by the time the trial court considered the child's best interests in this case, the state's policy of keeping parents and children together had already yielded to the need to protect the child.
Second, we disagree with respondent's assertion that terminating her parental rights was not in the child's best interests.
The trial court should weigh all the evidence available to determine the children's best interests. White, 303 Mich App at 713. 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." Olive/Metts, 297 Mich App 41-42 (citations omitted). The trial court may also consider the parent's compliance with his or her case service plan. White, 303 Mich App at 714.
In this case, there is no dispute that respondent loved the child. However, the trial court strongly weighed respondent's demonstrated history of instability, her failure to consistently comply with her service plan, and the child's needs for stability, finality, and physical and emotional support that respondent was unable to provide. The trial court also considered respondent's failure to visit the child and her ongoing struggle with substance abuse. Considering the entire record in this case, we are not definitely and firmly convinced that the trial court made a mistake when it found that terminating respondent's parental rights was in the child's best interests.
We affirm.
/s/ Peter D. O'Connell
/s/ Elizabeth L. Gleicher
/s/ Mark T. Boonstra