Opinion
No. 352151
01-21-2021
In re ALNAZAL/ALWAHAMI, 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 UNPUBLISHED Wayne Circuit Court Family Division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. 15-520656-NA Before: JANSEN, P.J., and SERVITTO and RIORDAN, JJ. PER CURIAM.
Respondent appeals by right the trial court's order terminating her parental rights to three of her minor children pursuant to MCL 712A.19b(3)(c)(i) (conditions that led to the adjudication continue to exist), (g) (proper care and custody), and (j) (risk of harm). We affirm.
I. FACTS & PROCEDURAL HISTORY
Respondent gave birth to her first child, SA, a girl, in March 2012, when she was seventeen years old. During her pregnancy, her family sent her to Iraq to be married to SA's father. She returned home to give birth in America. She and SA moved in with respondent's mother, but soon thereafter, respondent's mother forced respondent to leave the home. Respondent and her husband, who did not want SA, divorced. Aside from $500 that respondent's husband sent her just after SA was born, he provided no financial assistance for respondent or SA. Because respondent had no means to care for SA on her own, she left SA with her mother and her mother and other family members prohibited her from visiting SA.
Respondent gave birth to her second child, MA, in July 2013. Thereafter, she married for a second time in 2014, and during the pendency of this action gave birth to her third child, RW, in 2015. RW is with his father, respondent's second husband, from whom respondent is separated, and who is not subject to this appeal.
In September 2015, MA was removed from respondent's care after he suffered unexplained bruises and fractures in his arm and hand. Also, MA was underweight, a condition for which respondent failed to pursue appropriate treatment. MA was placed in foster care. Thereafter, SA was removed from the care of the maternal grandmother, who could not qualify as a foster parent because of previous Child Protective Services (CPS) investigations, and SA was placed in foster care. Initially, respondent was required to take parenting classes, undergo a psychological evaluation and a Clinic for Child Study (CCS) evaluation, engage in individual counseling and domestic violence counseling, and participate in supervised visitation with both children. Further, she was to acquire suitable housing and a legal income. Eventually, a parent partner was ordered to assist her.
For the first two years, respondent's participation in services was inconsistent. She had to repeat parenting classes, was terminated from her individual therapy, failed to obtain stable housing and income, and she was sporadic with her visitation. Her parenting skills had not improved and she had difficulty bonding with the children. The court ordered the permanency plan changed to concurrent reunification and adoption.
By the time of the December 2017 review hearing, respondent began showing some benefit from services. She had obtained safe and suitable housing, her parenting skills had improved, she was employed, and the children were bonding with her. As of the March 2018 hearing, the situation continued to improve but there was still a problem with sufficient income.
Respondent gave birth to her fourth child, a girl, MoA, in 2018, and the baby also was made a temporary ward of the court. By August 2018, respondent was fully compliant and had substantially resolved the issues that brought the children into care. SA and MA were placed with respondent and in November 2018, MoA was placed with respondent as well.
In January 2019, respondent's house burned down and she was unable to salvage anything in the house. Initially, she was assisted with housing and basic needs, but ultimately, she could not obtain affordable housing and she voluntarily placed the children back into foster case. By June 2019, she had not obtained employment or housing. She was living with a friend and attending therapy sessions, but the therapist did not believe that she was being responsive. Respondent's relationship with the children deteriorated and the children started regressing. MA was injured during an incident involving respondent and her estranged husband. Respondent was arrested, spent the night in jail, and was charged with aggravated felonious assault, burglary-forced entry, family abuse and neglect, and destruction of property. Although her husband refused to press charges and she was released, CPS substantiated the abuse.
Thereafter, the trial court terminated respondent's parental rights to SA, MA, and MoA. This appeal followed.
II. REASONABLE ACCOMMODATIONS FOR REUNIFICATION
On appeal, respondent first argues that the trial court clearly erred in finding that petitioner made reasonable efforts to reunify the family. Specifically, she contends that an evaluation indicated that she was "lower functioning" and needed specialized accommodations which petitioner failed to provide. We disagree.
Whether reasonable efforts for reunification have been made is a factual determination that we review for clear error. In re Mason, 486 Mich 142, 152; 782 NW2d 747 (2010). In order to preserve a claim that reasonable efforts were not made, a respondent must "object or indicate that the services provided to them were somehow inadequate[.]" In re Frey, 297 Mich App 242, 247; 824 NW2d 569 (2012). "The time for asserting the need for accommodation in services is when the court adopts a services plan . . . ." Id. at 247, quoting In re Terry, 240 Mich App 14, 27; 610 NW2d 563 (2000). At the time respondent's services plan was adopted, she did not have the information to support a claim for accommodations and she raised the issue shortly after the evaluation was completed. Therefore, we conclude that the issue was timely raised.
During the proceedings below, respondent presented conflicting arguments concerning this issue. First, at the March 2018 hearing, when respondent encouraged the court to disregard the findings in the psychological evaluation report and place the children with her, she argued that the report's findings regarding her cognitive delays were based in part on a language barrier because her first language was Arabic and the evaluation was in English. However, at the termination hearing in December 2019, respondent cited a later report prepared by CCS which concluded that respondent was "lower functioning," in support of her argument that petitioner failed to provide reasonably accommodations.
The CCS report largely relied on the findings in the earlier psychological evaluation report.
The trial court found that petitioner provided sufficient accommodations designed to address respondent's needs. The court's findings were supported by evidence of a "whole slew of services" provided before the children were returned as well in-home services to help with the transition. Further, respondent sufficiently benefited from services provided such that, at one point, the children were returned to her care and custody. Finally, the court did not err in holding that the psychological evaluation report's finding of low functioning should be "taken with a grain of salt" due to the apparent language barrier and bias inherent in the administration of the tests. The record shows that respondent was able to comply with the requirements of her treatment plan and demonstrated her readiness for the children to be returned to her care. Rather, it was the unfortunate tragedy of the fire and the loss of all her belongings that brought the children back into foster care, and respondent was then unable to overcome all the barriers that had beset her. However, the trial court did not clearly err in finding sufficient evidence that petitioner made reasonable accommodations for reunification.
III. STATUTORY GROUNDS
Respondent next contends that, because petitioner failed to make reasonable efforts to accommodate special needs, the trial court clearly erred in finding clear and convincing evidence to support the statutory grounds for termination. We disagree.
"A court may terminate a respondent's parental rights if one or more of the statutory grounds for termination listed in MCL 712A.19b(3) have been proven by clear and convincing evidence." In re Olive/Metts Minors, 297 Mich App 35, 40; 823 NW2d 144 (2012). We review for clear error the trial court's decision that a ground for termination has been proven by clear and convincing evidence. Id. A finding of fact is clearly erroneous if we are left with a definite and firm conviction that a mistake was made. Id. at 41. Further, regard is to be given to the special opportunity of the trial court to judge the credibility of the witnesses who appear before it. MCR 2.613(C); In re Miller, 433 Mich 331, 337; 445 NW2d 161 (1989).
Respondent's parental rights were terminated under MCL 712A.19b(3)(c)(i), (g), and (j). We find it unnecessary to address subsections (g) and (j) because we conclude that grounds were established under subsection (c)(i), which allows for termination of rights when:
(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.
The conditions that led to adjudication were physical abuse and medical neglect of MA. Prior to the termination hearing, respondent was arrested during an altercation at the home of her estranged husband where she had physically attacked MA. Additionally, SA was placed in foster care after petitioner learned that respondent had abandoned SA with respondent's mother because she was unable to provide for SA, and MoA was placed in foster care after she was born. Although respondent complied with services to the extent that the children were returned to respondent's care at one point, the children re-entered foster care less than one year later after respondent's arrest. Even during the months that the children were in respondent's care, MoA's former foster parent constantly provided care for MoA and respondent required the foster parent's assistance when she could not soothe MoA. At the time of the termination hearing, respondent admitted her work schedule was inflexible and she had no childcare plan outside of MoA's foster parent. Although respondent obtained housing, it had a cockroach infestation. MoA's foster parent had helped with one round of fumigation, but additional remediation was required. MoA's foster parent also had provided furnishings for respondent's apartment. In sum, respondent was no more prepared to have the children in her care and custody than she was at the beginning of these proceedings. Thus, the evidence established that this condition that led to adjudication continued to exist and, after four years, there was no reason to conclude that there was a reasonable likelihood that it would be rectified within a reasonable time considering the children's ages. Therefore, the trial court did not clearly err in finding clear and convincing evidence to support termination of respondent's parental rights under MCL 712A.19b(3)(c)(i).
Although only one statutory ground for termination need be established, In re Olive/Metts Minors, 297 Mich App at 41, we nonetheless conclude that the trial court did not clearly err when it concluded that clear and convincing evidence established the statutory grounds for termination pursuant to MCL 712A.19b(3)(g) (proper care and custody) and (j) (risk of harm). Regarding MCL 712A.19b(3)(g), respondent could not provide a proper and safe home for her children. She had four or five different residences in the previous year and her current home had a roach infestation. During the pendency of the case, respondent had seven or eight different jobs and had no stability of income. Therefore, respondent was not able to provide proper care and custody. As for MCL 712A.19b(3)(j), there was evidence of a risk of harm. The case began as a result of abuse and neglect of MA, including malnutrition, bruises over his body, and multiple fractures in his arm. Shortly before the termination hearing, respondent was arrested for a domestic dispute that, among other things, resulted in a physical attack on MA. Thus, based on respondent's conduct, there was a reasonable likelihood that the children would be harmed if they were returned to respondent's home. Therefore, the trial court did not clearly err in finding clear and convincing evidence to support termination of respondent's parental rights under MCL 712A.19b(3)(j). --------
IV. BEST INTERESTS
Respondent contends that the trial court erred in finding that termination of her parental rights was in the best interests of the children, maintaining that she had a strong bond with them. We disagree.
We review for clear error both the court's decision regarding the children's best interests under MCL 712A.19b(5). In re Olive/Metts Minors, 297 Mich App at 40. MCL 712A.19b(5) provides:
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.That it is in the children's best interests must be proven by a preponderance of the evidence. In re Moss, 301 Mich App 76, 88-90; 836 NW2d 182 (2013). The court "may consider evidence introduced by any party" and "from the evidence on the whole record" in making its best-interest determination. In re Trejo, 462 Mich 341, 354-355; 612 NW2d 407 (2000). In deciding whether termination is in the child's best interests, the court may consider the parent's parenting ability, In re Jones, 286 Mich App 126, 129-130; 777 NW2d 728 (2009), the child's bond to the parent, In re BZ, 264 Mich App 286, 301; 690 NW2d 505 (2004), the child's safety and well-being, In re VanDalen, 293 Mich App 120, 142; 809 NW2d 412 (2011), whether the parent can provide a permanent, safe, and stable home, In re Frey, 297 Mich App at 248-249, and the child's "need for permanency, stability, and finality," In re Gillespie, 197 Mich App 440, 446-447; 496 NW2d 309 (1992).
In making its determination of whether termination of respondent's parental rights was in the best interests of the children, the court noted that the CCS report concluded was that the prognosis for reunification was extremely poor. It looked to past behavior as an indicator of future behavior and noted that respondent had serious barriers to overcome. The court did not believe that if given more time respondent would significantly progress. The court acknowledged that respondent had "tried to rectify some of the issues that brought the children before the [c]ourt," but concluded that "[i]t just hasn't been enough in order to justify giving more time." Observing that the children were young and had done well in care, especially MA, the court concluded that "termination of [respondent]'s parental rights will be in the best interest of these children."
Regarding parenting ability, the evidence showed that respondent needed constant redirection during visitations with the children and had not been able to handle the responsibility of their care. When the children were returned to her care, she called on MoA's foster mother for assistance. If she was not able to soothe the child at bedtime or "in general," she would call on the foster mother and often asked her to "come get her." Despite two sessions of parenting classes and other services, a caseworker reported that there were "still barriers there in regards to her relationship with the kids the bond, her parenting skills, . . . the constant need for redirection . . . and assistance." The caseworker acknowledged that there was a bond between respondent and SA, but saw no significant bond with MA or MoA. Also, the caseworker noted that MA had many special needs, including a language disorder, a developmental coordination disorder, ADHD, and reactive attachment disorder. He received occupational therapy, speech therapy, and psychological and infant mental health services, and saw a behavioral therapist regularly. SA had significant delays and required physical therapy and speech therapy. They both had significant delays educationally, and both would need services "well into the future." Finally, at the termination hearing, eleven months after the fire, respondent did not have suitable housing or income to provide proper care and custody for her children. She had voluntarily placed her children back in foster care, and it was reported that, "things [we]re not getting better they [we]re getting worse." After more than four years of being moved back and forth, there was support for the conclusion that the children needed permanency, stability, and finality, which they could not achieve with respondent. Accordingly, the trial court did not clearly err in finding that termination of respondent's parental rights was in the best interests of the children.
V. FOSTER PARENT PARTICIPATION
Respondent contends that the trial court clearly erred in determining that the children's foster parents had standing to participate in the proceedings to termination respondent's parental rights. Under MCL 712A.19b(1), a "concerned person" may file a petition for termination of parental rights if the child remains in foster care or in custody of a guardian or limited guardian. MCL 712A.19b(6), effective June 12, 2018, provides:
(6) As used in this section, "concerned person" means a foster parent with whom the child is living or has lived who has specific knowledge of behavior by the parent constituting grounds for termination under subsection (3)(b) or (g) and who has contacted the family independence agency, the prosecuting attorney, the child's attorney, and the child's guardian ad litem, if any, and is satisfied that none of these persons intend to file a petition under this section.Thus, the foster parents' involvement was proper. Respondent's reliance on People v Foster, 226 Mich App 348; 573 NW2d 324 (1997), and Tallman v Milton, 192 Mich App 606, 615; 482 NW2d 187 (1992), is misplaced because, in light of MCL 712A.19b(6), those cases no longer apply.
VI. CONCLUSION
The trial court did not commit error requiring reversal when it concluded that petitioner made reasonable accommodations for reunification, that the statutory grounds for termination were supported by clear and convincing evidence, that termination was in the children's best interests, and that the children's foster parents' involvement in the proceedings was proper. Accordingly, we affirm the trial court's decision termination respondent's parental rights to SA, MA, and MoA.
/s/ Kathleen Jansen
/s/ Deborah A. Servitto
/s/ Michael J. Riordan