Opinion
No. 337718
11-21-2017
In re M. BALDWIN-STANLEY, Minor.
UNPUBLISHED Bay Circuit Court Family Division
LC No. 12-011087-NA Before: SWARTZLE, P.J., and SAWYER and MARKEY, JJ. PER CURIAM.
Respondent appeals by right the trial court's order terminating his parental rights to the minor child, MBS, pursuant to MCL 712A.19b(3)(c)(i), (c)(ii), (g), and (j). We affirm.
The child's mother voluntarily terminated her parental rights.
The events giving rise to this case occurred on October 31, 2014, while MBS was in his mother's care. The mother brought MBS to the emergency room that day "with a bruise on his right hip/buttocks area" that was "purple in color and approximately 7 inches long." Respondent was incarcerated at the time for violation of probation. MBS was removed from the home and the mother pleaded to the petition in February 2015. Following the mother's initial disposition, the trial court suspended respondent's parenting time until he began services. One of the concerns leading to respondent's adjudication was that he had been "in and out" of jail throughout MBS's life. Additionally, there were domestic violence allegations against a son of the woman with whom respondent was living. Following a two-day jury trial in late April 2015, the court found grounds for assuming jurisdiction over the child with respect to respondent.
Respondent later married this individual.
At respondent's May 2015 initial disposition, respondent was ordered to comply with a case service plan, which included supervised parenting time with MBS. The case service plan also indicated that Child Protective Services had requested that respondent obtain "another psychological evaluation" after an assessment in a previous case resulted in "no referral[s]" for additional services. Respondent was not present at the August 2015 review hearing where the caseworker informed the court that respondent had been participating in parenting time before being incarcerated from June 12 to July 8, 2015. The caseworker also indicated that respondent was currently working "out of town." Respondent's attorney requested that "so long as [respondent is] participating in services" he be allowed "expanded visits." The court then suspended respondent's parenting time until he began services.
Respondent was also not present at the October 2015 review hearing. The caseworker told the court that respondent had stopped participating in parenting time visits and had requested weekend visits. The caseworker explained that "weekend visits" "are pretty hard to get" but that he would work with respondent to set up visits "possibly in the evenings." The court continued the suspension of respondent's parenting time.
Respondent was present at the January 22, 2016 dispositional review and permanency planning hearing, where the court ordered that the permanency goal be changed to adoption and that termination proceedings be initiated. The court was unconvinced that respondent should be given additional time to comply with the case service plan because respondent had "done nothing since this case started." The court continued the suspension of respondent's parenting time "until we hear from the [MBS's] counselor" on whether visitation "will harm . . . more than help." It does not appear that a report from the child's counselor was obtained before the termination hearing. For unknown reasons, a termination petition regarding respondent was not filed until July 2016. A two-day termination hearing was held in November 2016. The court heard testimony from caseworkers, the child's therapist, the child's mother, the child's grandmother (with whom MBS was placed), and respondent. At a review hearing in January 2017, respondent informed the court that he was currently incarcerated. In March 2017, the trial court issued an 11-page opinion finding that multiple statutory grounds were proven by clear and convincing evidence and that termination of respondent's parental rights was in MBS's best interests.
Respondent first challenges the suspension of his parenting time. Respondent did not argue below that the suspension was improper; therefore, we review this issue for plain error affecting substantial rights. In re Utrera, 281 Mich App 1, 8; 761 NW2d 253 (2008). "To avoid forfeiture under the plain error rule, three requirements must be met: 1) the error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights." In re VanDalen, 293 Mich App 120, 135; 809 NW2d 412 (2011) (internal quotation marks and citations omitted). "Generally, an error affects substantial rights if it caused prejudice, i.e., it affected the outcome of the proceedings." In re Utrera, 281 Mich App at 9.
Child protective proceedings are governed by the Juvenile Code, MCL 712A.1 et seq., In re AMB, 248 Mich App 144, 178; 640 NW2d 262 (2001). As an initial matter we note that MCL 712A.13a(13), at issue in this case, was substantially amended by 2016 PA 91, effective September 19, 2016. Respondent's termination petition, however, was filed in July 2016. At that time, MCL 712A.19b(4) allowed the trial court to suspend his parenting time. Further, there is no indication in Act 91 that the Legislature intended it to apply retroactively. See Brewer v AD Transport Express, Inc, 486 Mich 50, 56; 782 NW2d 475 (2010). Since respondent has not asserted any contrary argument, we will apply the general rule that the Act 91 applies prospectively. People v Russo, 439 Mich 584, 594; 487 NW2d 698 (1992). For those reasons, Act 91 is not relevant to the resolution of this case. Accordingly, we will apply the former version of MCL 712A.13a(13) and our prior explication of the court rules and statutory provisions governing parenting time in In re Laster, 303 Mich App 485, 487-490; 845 NW2d 540 (2013).
For the same reasons, we need not decide whether Act 91, and specifically the added provision of MCL 712A.18(1)(n), effectively overruled In re Laster, 303 Mich App 485.
The former version of MCL 712A.13a(13) provided as follows:
(13) If a juvenile is removed from his or her home, the court shall permit the juvenile's parent to have frequent parenting time with the juvenile. If parenting time, even if supervised, may be harmful to the juvenile, the court shall order the child to have a psychological evaluation or counseling, or both, to determine the appropriateness and the conditions of parenting time. The court may suspend parenting time while the psychological evaluation or counseling is conducted. [MCL 712A.13a(13), as amended by 2012 PA 163.]The Laster Court determined that MCL 712A.13a(13) and MCR 3.965(C)(7)(a) , "govern parenting time from the preliminary hearing to adjudication." In re Laster, 303 Mich App at 488. MCL 712A.13a(13) and MCR 3.965(C)(7)(a) "require a trial court to make findings of harm before suspending parenting time . . . ." Id.
MCR 3.965(C)(7)(a) provides as follows:
(a) Unless the court suspends parenting time pursuant to MCL 712A.19b(4), or unless the child has a guardian or legal custodian, the court must permit each parent frequent parenting time with a child in placement unless parenting time, even if supervised, may be harmful to the child. [Emphasis removed.]
Respondent argues that the trial court violated MCL 712A.13a(13) by suspending his parenting time before his adjudication. We agree. The trial court did not make the required findings of harm before suspending respondent's parenting time following the mother's adjudication in February 2015. Rather, it determined that it would be inappropriate for respondent to have parenting time while not engaging in services. The court's reasoning is understandable, but is nonetheless in direct conflict with the statute. We find petitioner's argument that the trial court merely "conditioned" respondent's parenting time unconvincing. The only condition that MCL 712A.13a(13) allows is that parenting time may be suspended if it may harm the child. The trial court plainly erred in suspending respondent's parenting time before the adjudication without making the requisite finding of harm.
Nevertheless, the court's error does not require reversal. Although we recognize the importance of parenting time, we do not discern how the court's error caused respondent outcome determinative prejudice. In re Utrera, 281 Mich App at 9. Respondent was wrongfully denied parenting time for less than three months before his adjudication, but the post-adjudication proceedings lasted nearly two years. As discussed below, during that time it was respondent's failure to rectify the conditions leading to adjudication that resulted in the termination of his parental rights.
Respondent also argues that the trial court erred by suspending his parenting time during the dispositional phase of the proceedings. At the relevant time, no statutory provisions "govern[ed] the trial court's authority to enter orders regarding parenting time following adjudication." In re Laster, 303 Mich App at 489-490. Thus,
the issue of the amount, if any, and conditions of parenting time following adjudication and before the filing of a petition to terminate parental rights is left to the sound discretion of the trial court and is to be decided in the best interests of the child. No finding of harm is required, although such a finding is usually implicit in the court's decision. . . . [Id. at 490.]Respondent argues that the suspension of his parenting time beginning in August 2015 violates MCL 712A.18f(3)(e) and (4), which requires that the case service plan provide for regular and frequent parenting time and that the court must consider the case service plan before entering the order of disposition. As the Laster Court explained, MCL 712A.18f(3)(e) "simply directs the agency to include a recommended parenting time schedule in the case service plan" and has no bearing on the court's "authority to enter orders regarding parenting time following adjudication." In re Laster, 303 Mich App at 490. Further, the court considered the case service plan, which included parenting time for respondent. Thus, MCL 712A.18f(3)(e) and (4) were satisfied in this case.
To the extent that respondent is broadly arguing that the trial court abused its discretion in suspending his parenting time, we disagree. Respondent was ordered to comply with the case service plan, which required him to undergo a psychological assessment. Respondent focuses on the fact that this was his only recommended service, but he ignores that the assessment may have led to additional referrals. While an assessment of respondent in 2014 resulted in no referrals, an assessment in 2013 recommended numerous services. Further, respondent did not appear at the August 2015 review hearing when his attorney informed the court that respondent was "not terribly concerned right now simply because he doesn't believe that the adjudication was appropriate . . . ." The court continued the suspension of the parenting time at the October 2015 hearing which respondent did not attend. As the court later explained to respondent, "I suspended because you weren't doing services and you weren't showing up." At any time respondent could have completed the psychological evaluation and recommenced parenting time. Yet the record indicates that respondent's contact with the agency was at best minimal. Further, it appears that respondent continued to have parenting time after the August 2015 suspension, but that he stopped attending visits due to work obligations. Respondent requested weekend visits, which the agency could not accommodate because it could not arrange transportation on the weekends. Under the circumstances, trial court did not plainly abuse its discretion in ordering the suspension of parenting time and in continuing it until the termination petition was filed. Again, the trial court was not required to make a finding of harm. In re Laster, 303 Mich App at 490.
Notably, respondent does not argue that agency failed to make reasonable reunification efforts with regard to his visitation. See In re Fried, 266 Mich App 535, 541; 702 NW2d 192 (2005). --------
Respondent also argues that the trial court clearly erred by finding clear and convincing evidence to terminate his parental rights. We disagree. We review the trial court's factual findings on the statutory grounds and the child's best interests for clear error. MCR 3.977(K); In re Utrera, 281 Mich App at 15. "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).
The trial court found sufficient evidence to terminate respondent's parental rights under MCL 712A.19b(3)(c)(i), which provides as follows:
(3) The court may terminate a parent's parental rights to a child if the court finds, by clear and convincing evidence, 1 or more of the following:We agree with respondent that the conditions that led to his adjudication "were criminality/incarceration and an unfit home." We disagree, however, that the trial court erred in finding that those conditions continued to exist. At the November 2016 termination hearing, respondent testified that he completed his probation, and the caseworker said that, to her knowledge, respondent was last incarcerated in July 2015. But at the January 2017 review hearing following the termination hearing, respondent informed the trial court that he was currently incarcerated. So the court did not clearly err in finding that respondent's incarceration issues were ongoing.
* * *
(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 initial concern in respect to respondent's housing situation was that there were pending domestic violence charges against an individual, now respondent's step-son, living in the home. The record is unclear if the allegations had been resolved although the testimony suggests that the step-son still lives in respondent's home. In any event, respondent failed to schedule a time when the caseworker could visit the home. Respondent moved numerous times throughout the proceedings and at one point was apparently "homeless." Respondent provided his "new address" to the caseworker in April 2015, but when she asked to visit, respondent told her that his work schedule was "crazy" and that he would "get back" to her. He never did. We find respondent's insistence that he has addressed his housing issue perplexing when he could not even arrange a visit for the caseworker. He asserts that the agency could have visited the home when his wife was there, but the caseworker said that respondent never suggested that possibility to her.
Further, there were legitimate concerns with the adequacy of respondent's home considering that his four stepchildren live in the home and that he also had joint legal and physical custody over five separate children. Moreover, the trial court found respondent's testimony regarding his housing situation not credible. We must respect the trial court's superior ability to make credibility determinations. In re BZ, 264 Mich App at 296-297. For those reasons, we cannot find that the trial court clearly erred in finding that respondent had not addressed his housing issues. Further, considering that the proceedings had lasted over two years, we also conclude that the trial court did not clearly err in finding that respondent would not be able to rectify the conditions which led to the adjudication in a reasonable time. Because only one statutory ground for termination is needed, we will not address the evidence supporting the court's findings under MCL 712A.19b(3)(c)(ii), (g), and (j). In re Ellis, 294 Mich App 30, 32; 817 NW2d 111 (2011).
We also find no clear error in the trial court's determination that termination of respondent's parental rights was in MBS's best interests. "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 . . . ." MCL 712A.19b(5). Respondent asserts that he addressed his housing issues; he clearly had not. He also points to the assertion that he had "successfully parented" five children. But, as the trial court found, respondent's relationship with the children was not clear. Instead, the trial court focused on MBS's medical and behavioral needs and the lack of any indication that respondent would be able to consistently meet those needs. The court noted that MBS had been placed with his maternal grandmother throughout the proceedings. She testified to numerous medical and therapeutic appointments the child requires on a regular basis. MBS's therapist testified to the child's need for permanence and stability, which the grandmother had indisputably provided. The trial court acknowledged MBS's relative placement but explained why termination of respondent's parental rights was nonetheless in the child's best interests. The court noted MBS's strong bond with his grandmother and that MBS's mother testified that it was in her son's best interests to remain with her mother. The court determined that MBS's need for permanency would be best served by termination of respondent's parental rights and allowing the grandmother to adopt MBS.
Respondent contends that the court should have more thoroughly considered the possibility of a guardianship. Respondent does not point to a statute or caselaw requiring a trial court to consider the respective advantages of adoption and guardianship. See Mitcham v Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959). In any event, the caseworker testified that adoption was preferable because MBS's three other siblings were being adopted by the grandmother. For those reasons, and "giving due regard to the trial court's special opportunity to observe the witnesses," In re BZ, 264 Mich App at 296-297, we find that the trial court did not clearly err in determining that termination of respondent's parental rights was in the child's best interests.
We affirm.
/s/ Brock A. Swartzle
/s/ David H. Sawyer
/s/ Jane E. Markey