Opinion
No. 349742
04-02-2020
In re ALBAYATI, Minors.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Wayne Circuit Court Family Division
LC No. 18-001198-NA Before: GLEICHER, P.J., and GADOLA and LETICA, JJ. PER CURIAM.
Respondent appeals as of right the trial court's order terminating his parental rights under MCL 712A.19b(3)(j) (reasonable likelihood child will be harmed if returned to parent's home). We affirm.
I. FACTS
Respondent is the father of two minor children, SHA and QHA. Respondent and the children's mother were married in Iraq in 2010, and at some point thereafter the mother lived with the children in the United States while respondent lived in Iraq. In February 2018, respondent moved to the United States to live with the mother and the children, who then were ages seven and three. Before moving to the United States, respondent had not seen the older child, SHA, in three years, and had never seen the younger child.
Several days after respondent joined the family in the United States, the children's mother observed respondent touching SHA inappropriately and recorded the conduct with her cell phone. In the video, respondent is seen repeatedly putting his hand inside SHA's pajama pants and aggressively rubbing her leg and buttocks while the child sits on respondent's lap playing with a cell phone. According to the children's mother, when she confronted respondent regarding the conduct in the video he became physically violent with her, putting a knife to her throat in front of SHA and slapping SHA's face. The children's mother reported respondent's conduct to the police in March or April 2018, but testified that no formal report was made because of her inability to speak English fluently. In May 2018 respondent returned to Iraq. In July, she returned to the police and made a formal report regarding respondent's conduct.
The trial court thereafter authorized the Department of Health and Human Services (DHHS) to file a petition seeking immediate termination of respondent's parental rights, which was filed in August 2018. In the petition, petitioner sought to terminate respondent's parental rights under MCL 712A.19b(3)(a) (desertion), (b) (physical or sexual abuse), (g) (failure to provide proper care and custody, (j) (likelihood child will be harmed if returned to parent), and (k) (criminal sexual conduct/sexual abuse). At the time the petition was authorized, respondent could not be located and it was later learned that he had returned to Iraq. In October 2018, respondent returned to the United States and thereafter participated in the termination proceedings before the trial court.
During the adjudication hearing, the children's mother testified that she recorded the incident of respondent touching SHA because she thought the way he was touching her was "not normal." The mother also testified that respondent had physically abused her previously, including when she was pregnant, and that respondent had threatened to kill her and the children, and then himself. At trial, respondent denied physically abusing his family and claimed that the video merely depicted a father showing affection for his daughter.
At the conclusion of the testimony, the trial court concluded that the children came within the jurisdiction of the court under MCL 712A.2b(1) and (2). The court also concluded that based upon the video and the mother's testimony, there was a statutory basis to terminate respondent's parental rights under MCL 712A.19b(3)(j), and that termination was in the best interest of the children. Respondent now appeals to this Court.
II. DISCUSSION
A. STATUTORY BASIS FOR TERMINATION
Respondent first contends that the trial court clearly erred when it determined there was clear and convincing evidence to support termination under MCL 712A.19b(3)(j). We disagree.
To terminate parental rights, the trial court must find that at least one statutory ground for termination under MCL 712A.19b(3) has been proven by clear and convincing evidence. In re Keillor, 325 Mich App 80, 85; 923 NW2d 617 (2018). This Court reviews for clear error the trial court's factual findings as well as its determination that a statutory basis for termination of parental rights has been proven by clear and convincing evidence. MCR 3.977(K); In re Pops, 315 Mich App 590, 593; 890 NW2d 902 (2016). A factual finding is clearly erroneous if the reviewing court has a definite and firm conviction that a mistake has been made, giving due regard to the trial court's special opportunity to observe the witnesses. Id. A trial court's finding is not clearly erroneous unless it is more than possibly or probably incorrect. In re Ellis, 294 Mich App 30, 33; 817 NW2d 111 (2011).
In this case, the trial court terminated respondent's parental rights pursuant to MCL 712A.19b(3)(j), which provides that the trial court may terminate parental rights to a child if it finds by clear and convincing evidence that "[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." We conclude that the trial court did not clearly err when it found that petitioner presented clear and convincing evidence that, on the basis of respondent's conduct, there was a reasonable likelihood that the children would be harmed if they were placed in respondent's custody. The trial court was provided the video recording of respondent repeatedly putting his hand inside the oldest child's pajama pants and intensely rubbing the child's buttocks and legs while she sat in his lap. In addition, the children's mother testified that respondent was physically abusive to her, including while she was pregnant. She further testified that within weeks of arriving in the United States, respondent put a knife to her throat, struck SHA's face, and threatened the kill her and the children, and then himself. On the basis of the testimony and evidence presented during the hearings, and giving deference to the trial court's special opportunity to observe the witnesses, the trial court did not clearly err in finding that it was reasonably likely the children would be harmed if they were placed in respondent's care.
B. REASONABLE EFFORTS
Respondent also contends that the trial court clearly erred in terminating his parental rights because petitioner failed to make reasonable efforts to reunify the children with him. We disagree.
This Court typically reviews for clear error a trial court's findings regarding the reasonableness of the DHHS's efforts to reunify a family. In re Smith, 324 Mich App 28, 43; 919 NW2d 427 (2018). However, we observe in this case that respondent raises this issue for the first time on appeal. "To preserve an issue for appellate review, the issue must be raised before, addressed by, and decided by the lower court." In re Killich, 319 Mich App 331, 336; 900 NW2d 692 (2017). Specifically, to preserve a challenge to the adequacy of services provided to a respondent, the respondent must object or otherwise indicate before the trial court that the services offered are inadequate. In re Frey, 297 Mich App 242, 247; 824 NW2d 569 (2012). Although our Supreme Court has expressed some skepticism of this "categorical rule," it has not overturned it. See In re Hicks/Brown, 500 Mich 79, 88-89; 893 NW2d 637 (2017).
Because respondent in this case failed to preserve this issue by raising it before the trial court, our review of this issue is for plain error affecting respondent's substantial rights. In re Beers, 325 Mich App 653, 677; 926 NW2d 832 (2018). Under the plain error rule, forfeiture is avoided if an error occurred that was plain, meaning clear or obvious, and the error affected substantial rights. Id. An error affects substantial rights if it caused prejudice, that is, if it affected the outcome of the proceedings. In re Utrera, 281 Mich App 1, 9; 761 NW2d 253 (2008).
A parent has a "fundamental liberty interest" in the care, custody, and management of his or her children, protected by the United States Constitution as well as the Michigan Constitution, US Const, Am XIV; Const 1963, art 1, § 17. In re Rood, 483 Mich 73, 91; 763 NW2d 587 (2009) (opinion by CORRIGAN, J.). Before the state may terminate a parent's parental rights, the state must satisfy the parent's right to procedural due process and provide the parent with "fundamentally fair procedures." Id. (citation omitted).
Generally, when a child is removed from the parent's custody the petitioner must make reasonable efforts to rectify the conditions that caused the child to be removed by adopting a case service plan outlining the steps that the DHHS and the respondent will take to rectify the issues and reunify the family. In re Hicks/Brown, 500 Mich at 85. Reasonable efforts include agency referrals for appropriate services and active efforts to engage the respondent in the services. See In re JL, 483 Mich 300, 322 n 15; 770 NW2d 853 (2009). Failure to provide services aimed at reunification can render the termination of the parent's parental rights premature. See In re Mason, 486 Mich 142, 152; 782 NW2d 747 (2010).
However, reasonable efforts to reunify the child and the parent are not required when there is a judicial determination that the parent has subjected the child to aggravated circumstances. In that regard, MCL 712A.19a(2) provides in relevant part:
(2) . . . . Reasonable efforts to reunify the child and family must be made in all cases except if any of the following apply:
(a) There is a judicial determination that the parent has subjected the child to aggravated circumstances as provided in section 18(1) and (2) of the child protection law, 1975 PA, 238, MCL 722.638.
MCL 722.638 provides in relevant part:
(1) The department shall submit a petition for authorization by the court under section 2(b) of chapter XIIA of 1939 PA 288, MCL 712A.2, if 1 or more of the following apply:
(a) The department determines that a parent, guardian, or custodian, or a person who is 18 years of age or older and who resides for any length of time in the child's home, has abused the child or a sibling of the child and the abuse included 1 or more of the following:
(i) Abandonment of a young child.
(ii) Criminal sexual conduct involving penetration, attempted penetration, or assault with intent to penetrate.
(iii) Battering, torture, or other severe physical abuse.
(iv) Loss or serious impairment of an organ or limb.
(v) Life threatening injury.
(vi) Murder or attempted murder.
* * *
(2) In a petition submitted as required by subsection (1), if a parent is a suspected perpetrator or is suspected of placing the child at an unreasonable risk of harm due to the parent's failure to take reasonable steps to intervene to eliminate that risk, the department shall include a request for termination of parental rights at the initial dispositional hearing as authorized under section 19b of chapter XIIA of 1939 PA 288, MCL 712A.19b.
In addition, MCR 3.977(E) provides:
(E) The court shall order termination of the parental rights of a respondent at the initial dispositional hearing held pursuant to MCR 3.973, and shall order that additional efforts for reunification of the child with the respondent shall not be made, if
(1) the original, or amended, petition contains a request for termination;
(2) at the trial or plea proceedings, the trier of fact finds by a preponderance of the evidence that one or more of the grounds for assumption of jurisdiction over the child under MCL 712A.2(b) have been established;
(3) at the initial disposition hearing, the court finds on the basis of clear and convincing legally admissible evidence that had been introduced at the trial or plea proceedings, or that is introduced at the dispositional hearing, that one or more facts alleged in the petition:
(a) are true, and
(b) establish grounds for termination of parental rights under MCL 712A.19b(3)(a), (b), (d), (e), (f), (g), (h), (i), (j), (k), (l), or (m);
(4) termination of parental rights is in the child's best interests. [MCR 3.977(E).]
After receiving a petition, a trial court must hold a preliminary hearing and may authorize the filing of the petition upon a finding of probable cause that one or more of the allegations are true and could support the trial court's exercise of jurisdiction under MCL 712A.2(b). In re Ferranti, 504 Mich 1, 15; 934 NW2d 610 (2019). If the trial court authorizes the petition, the adjudication phase of the proceedings follows to determine whether the trial court can exercise jurisdiction over the child, and thereby enter dispositional orders, including an order to terminate parental rights. Id.
In this case, in its initial petition filed in August 2018, the DHHS sought termination of respondent's parental rights under MCL 712A.19b(3)(a), (b), (g), (j), and (k), alleging that respondent abused SHA, and the abuse included "[c]riminal sexual conduct involving penetration, attempted penetration, or assault with intent to penetrate . . . ." The petition was authorized by the trial court. After holding a preliminary hearing, the trial court issued an order, dated August 20, 2018, in which the trial court found that respondent "presents a substantial risk of harm to the children's life, physical health, or mental well-being" and that "[n]o provision of service or other arrangement except removal of the children [from respondent] is reasonably available to adequately safeguard the children from the risk of harm to the children's life, physical health, or mental well-being." These findings amount to a judicial determination that respondent subjected the children to one or more of the aggravated circumstances identified in the petition for termination, which the trial court thereafter found were sufficient to establish the statutory ground to terminate respondent's parental rights under MCL 712A.19b(3)(j). We therefore conclude that DHHS was not obligated in this case to engage in reasonable efforts to reunify respondent with the children, and respondent thus has failed to demonstrate that a plain error has occurred affecting his substantial rights, or that he suffered prejudice from the occurrence of such an error.
C. BEST INTERESTS
Respondent also contends that the trial court clearly erred when it found by a preponderance of the evidence that termination of respondent's parental rights was in the best interests of the children. Again, we disagree.
Once a statutory ground for termination has been demonstrated, the trial court must find by a preponderance of the evidence that termination is in the best interests of the child before terminating parental rights. MCL 712A.19b(5); In re Gonzales/Martinez, 310 Mich App 426, 434; 871 NW2d 868 (2015). If the trial court finds that a preponderance of the evidence establishes that termination is in the best interests of the child, the trial court is required to terminate the parent's parental rights. MCL 712A.19b(5). We review the trial court's decision regarding a child's best interests for clear error. In re Medina, 317 Mich App 219, 226; 894 NW2d 653 (2016).
To determine whether the termination of parental rights is in the child's best interests, the trial court should weigh all the available evidence. In re White, 303 Mich App 701, 713; 846 NW2d 61 (2014). Typically, the trial court considers a variety of factors, including the child's bond to the parent, the parent's parenting ability, the child's need for permanency, stability, and finality, the advantages of a foster home over the parent's home, the parent's compliance with the case service plan, the parent's visitation history with the child, the child's well-being in the foster home, and the possibility of adoption. Id.
After reviewing the record before the trial court, we conclude that the trial court did not clearly err in finding that a preponderance of the evidence demonstrated that termination of respondent's parental rights was in the children's best interests. Respondent has virtually no relationship with his children or his wife. Before traveling to the United States in 2018, he lived in Iraq while the mother and the children lived in the United States; he had last seen SHA in 2015, and had never met QHA before 2018. After joining the family for only a matter of weeks, the children's mother insisted that he leave and reported his conduct to the police. The weeks that he lived with the mother and children were punctuated by abuse and violence. Respondent and the mother are now divorced, and the children continue to live with the mother, with whom they have lived exclusively for their entire lives. Thus, termination of respondent's parental rights to the children, with whom he has virtually no relationship, is unlikely to change the permanency and stability of their lives. The trial court therefore did not clearly err when it found that a preponderance of the evidence demonstrated that it was in the children's best interests to terminate respondent's parental rights.
Affirmed.
/s/ Elizabeth L. Gleicher
/s/ Michael F. Gadola
/s/ Anica Letica