Opinion
No. 349136 No. 349137
04-02-2020
In re BANKS/JONES, Minors. In re JONES, 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 UNPUBLISHED Wayne Circuit Court Family Division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. 01-397173-NA Before: GLEICHER, P.J., and GADOLA and LETICA, JJ. PER CURIAM.
In these consolidated appeals, respondents appeal as of right the trial court's order terminating their parental rights to their three minor children. The trial court terminated respondent-mother's parental rights under MCL 712A.19b(3)(b)(ii), (c)(i), (g), and (j), and terminated respondent-father's parental rights under MCL 712A.19b(3)(b)(i), (c)(i), (g), (j), and (k)(ii). We affirm.
I. FACTS
Respondents are the parents of PIJ, KOJ, and FDJ. Respondent-mother also has three older children, DTB, KDB, and TMB, who also were involved in the proceedings. Respondents have an extensive history of domestic violence and respondent-father has a long history of alcohol abuse. Both respondents have a history of beating the children; two of the older children testified that respondent-father severely beat them on more than one occasion by forcing them to strip, putting water on them, and then beating them with electrical cords. One of the older children, KDB, testified that respondent-father sexually assaulted her over a span of several years beginning when she was in the fourth grade, forcing her to perform fellatio on him and on one occasion penetrating her vaginally. In addition, respondents periodically have been homeless and the family has lived in a car. Respondents also have a long history of intervention by Child Protective Services.
In June 2016, DTB received a black eye during a physical altercation with both respondents in which he was beaten with a belt, held in a headlock to the point he could not breathe, and had to escape the home by climbing through a window. When DTB returned to the family home after staying with relatives, respondent-mother refused to let him inside the house. DTB went to a local police station for assistance, but when contacted by the police respondents declined to retrieve DTB.
Petitioner, the Department of Health and Human Services (DHHS), thereafter removed the five older children from respondents' custody on the basis of physical abuse, exposure to domestic violence, and neglect. After FDJ was born in November 2016, respondent-mother gave the child to a family friend or relative, who took the child out of state and respondent-mother would not reveal the child's location. The child was eventually located and removed from respondent-mother's custody in January 2017.
The youngest child had not yet been born.
Following a lengthy adjudication trial that concluded in March 2017, the trial court found that it had jurisdiction of the six children. Respondent-mother was provided with a treatment plan and reunification services, including mental health services. Although petitioner requested termination of respondent-father's parental rights at the initial disposition, the trial court determined that termination of his rights was not in the best interests of PIJ, KOJ, and FDJ. Accordingly, respondent-father was provided with a treatment plan and offered reunification services, including substance abuse treatment, parenting classes, domestic violence classes, individual and family counseling, and visits with his children. Throughout the proceedings, respondent-mother complied with some aspects of her treatment plan, but respondent-father, other than participating in parenting classes, failed to participate in offered services or to visit with his children.
In June 2018, PIJ, KOJ, and FDJ were returned to respondent-mother's custody. However, the children were again removed from her custody in July 2018 after DHHS learned that respondent-mother was allowing respondent-father to live in the home. The children again reported episodes of domestic violence between respondents and physical abuse by respondent-father during this period. Petitioner subsequently filed a supplemental petition to terminate respondents' parental rights.
After conducting separate termination and best-interest hearings, the trial court found statutory grounds to terminate respondent-mother's parental rights under MCL 712.A19b(3)(b)(ii), (c)(i), (g), and (j), and to terminate respondent-father's parental rights under MCL 712A.19b(3)(b)(i), (c)(i), (g), (j), and (k)(ii). The trial court also found that termination of respondents' parental rights was in the best interests of PIJ, KOJ, and FDJ, and accordingly, terminated respondents' parental rights to those children. Both respondents appeal as of right the trial court's termination of their parental rights to PIJ, KOJ, and FDJ.
The trial court terminated its jurisdiction over DTB after he attained the age of 18, and found that termination of respondent-mother's parental rights to KDB and TMB was not in their best interests because the older children were more closely bonded with respondent-mother and had fewer permanent placement options available.
II. DISCUSSION
A. REASONABLE EFFORTS
Respondent-father first contends that DHHS did not make reasonable efforts to provide him with services aimed at reunification before terminating his parental rights. 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, to preserve a challenge to the adequacy of services provided, a 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). 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). 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).
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). --------
When a child is removed from the parent's custody, the petitioner generally 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 79, 85-86; 893 NW2d 637 (2017). Reasonable efforts include agency referrals for appropriate services. See, e.g., In re Laster, 303 Mich App 485, 495; 845 NW2d 540 (2013). 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).
In this case, respondent-father does not specifically state what services he believes should have been provided that were not offered. In fact, respondent-father was ordered to participate in services including individual therapy, substance abuse treatment, family therapy, parenting classes, and a psychiatric examination if appropriate. The trial court also ordered respondent-father to maintain contact with the DHHS caseworker, attend all court hearings, maintain suitable housing, and obtain a legal income. However, although referred for these services, respondent-father failed to engage in any of these services except for attending parenting classes. Thus, although petitioner had a duty to expend reasonable efforts to provide services aimed at reunification, respondent failed in his commensurate responsibility to participate in the services offered. See In re Frey, 297 Mich App at 248. We therefore conclude that the trial court did not err in finding that the petitioner made reasonable efforts to reunify the family.
B. STATUTORY BASIS FOR TERMINATION
Both respondents contend that the trial court clearly erred in finding that petitioner presented clear and convincing evidence in support of the statutory grounds for termination. 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). We review for clear error the trial court's findings of fact, 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 is left with 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. To be clearly erroneous, a finding must be more than possibly or probably incorrect. In re Ellis, 294 Mich App 30, 33; 817 NW2d 111 (2011).
In this case, the trial court found that grounds for terminating respondents' parental rights were established under MCL 712A.19b(3)(b)(i), (b)(ii), (c)(i), (g), (j), and (k)(ii). Those statutory sections provide, in pertinent part:
(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:
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(b) The child or a sibling of the child has suffered physical injury or physical or sexual abuse under 1 or more of the following circumstances:
(i) The parent's act caused the physical injury or physical or sexual abuse and the court finds that there is a reasonable likelihood that the child will suffer from injury or abuse in the foreseeable future if placed in the parent's home.
(ii) The parent who had the opportunity to prevent the physical injury or physical or sexual abuse failed to do so and the court finds that there is a reasonable likelihood that the child will suffer injury or abuse in the foreseeable future if placed in the parent's home.
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(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.
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(g) The parent, although, in the court's discretion, financially able to do so, 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.
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(j) There 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.
(k) The parent abused the child or a sibling of the child, the abuse included 1 or more of the following, and there is a reasonable likelihood that the child will be harmed if returned to the care of the parent:
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(ii) Criminal sexual conduct involving penetration, attempted penetration, or assault with intent to penetrate. [MCL 712A.19b(3).]
1. MCL 712A.19b(3)(b)(i), (b)(ii), and (k)(ii)
The trial court did not clearly err by finding that petitioner presented clear and convincing evidence to terminate respondent-father's parental rights under MCL 712A.19b(3)(b)(i) and (k)(ii), and to terminate respondent-mother's parental rights under MCL 712A.19b(3)(b)(ii). A review of the record demonstrates that respondent-father physically abused DTB, KDB, and TMB, and sexually abused KDB, and that it was reasonably likely that PIJ, KOJ, and FDJ would be harmed if returned to respondent-father's home. Additionally, the record demonstrates that respondent-mother, although having an opportunity to do so, failed to protect her children from respondent-father's physical abuse and did not protect KDB from respondent-father's sexual abuse, and it is reasonably likely that the children will be abused if returned to respondent-mother's home.
DTB testified that respondent-father beat him, KDB, and TMB with extension cords when he became angry or intoxicated, and that respondent-mother was present in the home when the beatings took place. DTB also testified about a whipping he received from respondent-mother when he was seven or eight years old, describing it as "terrible." DTB also witnessed domestic violence between respondents on many occasions, and he saw respondent-father hit respondent-mother, try to run her over with a car, and slam her with his fist. The physical abuse was so prevalent and severe that DTB was concerned that respondent-father would one day kill respondent-mother. In June 2016, in a physical altercation that led to these proceedings, respondent-mother beat her children with a belt, and also hit DTB in the face. Respondent-father also became involved and put DTB in a headlock, restricting his ability to breathe, before DTB escaped from the house by jumping out a window. DTB also saw respondent-mother punch TMB with her fist.
KDB testified that respondent-father whipped her, DTB, and TMB with extension cords, and that respondent-mother was present in the home when the beatings took place. According to KDB, respondent-father began sexually abusing her when she was in the fourth grade. Although respondent-father denied any sexual abuse, the credibility of KDB's testimony was a matter for the trial court to decide and this Court defers to the trial court's assessment of credibility. In re Gonzalez/Martinez, 310 Mich App 426, 431; 871 NW2d 868 (2015). Respondent-mother refused to attend a trauma assessment for KDB and blamed KDB for the children being removed from the home.
On appeal, respondent-mother argues that she completed the requirements of her treatment plan. However, when PIJ, KOJ, and FDJ were returned to her home in June 2018, and while KDB was visiting overnight, respondent-mother allowed respondent-father to spend the night in the home in violation of the trial court's order. The children reported that respondent-father had been drinking while at the home during this period, that respondent-father hit and kicked them, that there were incidents of domestic violence between respondents during this time, and that respondent-mother told them to lie to DHHS staff about respondent-father's presence in the home. Although respondent-father completed parenting classes, a certificate of completion was never issued because he smelled of alcohol during the classes. He was referred for domestic violence classes multiple times, but did not attend, and failed to participate in substance abuse treatment. This evidence supports the trial court's finding that the children were reasonably likely to be subjected to continued abuse if returned to either respondent's home, and thus the trial court's factual findings with respect to the statutory grounds under MCL 712A.19b(3)(b)(i), (b)(ii), and (k)(ii) are supported by the record and are not clearly erroneous.
2. MCL 712A.19b(3)(c)(i), (g), and (j)
The trial court also did not clearly err in finding that clear and convincing evidence supported the conclusion that the conditions that led to the adjudication continued to exist and were not reasonably likely to be rectified within a reasonable time, that both respondents failed to provide proper care or custody for their children and were not reasonably expected to be able to do so within a reasonable time, and that PIJ, KOJ, and FDJ were reasonably likely to be harmed if returned to respondents' homes.
The eldest five children were brought into care in July 2016 because of domestic violence between respondents, respondent-father's physical abuse of the children, and respondents' neglect of the children. Thereafter KDB revealed that respondent-father had sexually abused her. FDJ was born later that year and she was placed into care in January 2017.
After the children were removed from the home, respondent-father failed to maintain contact with DHHS workers and failed to attend supervised parenting time with the children. Although he participated in parenting classes, he was incarcerated for unlawful entry into respondent-mother's home and domestic violence. Respondent-father refused to participate in domestic violence counseling, substance abuse treatment, or individual or family counseling, which were requirements of his treatment plan. At the time of the termination hearing, respondent-father was homeless and unemployed, and had no identified means of support.
Respondent-mother completed all of the requirements of her treatment plan but did not benefit from the services. After the younger children were returned to her care in June 2018, they were again removed a month later because she engaged in domestic violence with respondent-father in front of the children after allowing respondent-father to stay in the home in violation of the trial court's order. In sum, while respondent-mother did participate in services, she still did not appear to understand the gravity of the danger that respondent-father presented to her children and she continued to allow him access to the children.
We therefore conclude that the trial court did not clearly err by finding that the conditions that led to adjudication had not been rectified and were not reasonably likely to be rectified within a reasonable period of time considering the ages of the children, that both respondents failed to provide proper care and custody for their children and were unlikely to be able to do so within a reasonable time, and that the children were likely to be harmed if returned to respondents' care. See In re White, 303 Mich App 701, 710; 846 NW2d 61 (2014) (recognizing that a parent's failure to participate in or benefit from services reflects that the parent will not be able to provide proper care and custody).
C. BEST INTERESTS
Respondents also contend that the trial court clearly erred by finding that it was in the best interests of PIJ, KOJ, and FDJ to terminate their parental rights. 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 at 434. 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 at 713. 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 in this case, 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. The trial court found that it was necessary to protect PIJ, KOJ, and FDJ from the physical and sexual abuse that pervaded respondents' home and which had already seriously harmed DTB, KDB, and TMB. The trial court observed that the children were not closely bonded to respondent-mother, and not bonded at all to respondent-father, who had not exercised consistent parenting time or maintained a relationship with them over the duration of the proceedings. By contrast, FDJ's foster mother had expressed a willingness to adopt all three children in a placement that would keep them together. All three children had been in foster care for more than two years, and had experienced tremendous stress and upheaval after being removed from their home in 2016, and then returned to respondent-mother in June 2018, only to be removed again less than a month later.
With respect to respondents' parenting abilities, respondent-father was violent and physically abusive with DTB, KDB, and TMB, and there is evidence that he repeatedly sexually abused KDB. Respondent-mother was present in the home when the children were physically abused by respondent-father. Further, despite knowing the severity of KDB's sexual abuse allegations against respondent-father, and knowing that the trial court had prohibited respondent-father from having any contact with KDB, respondent-mother nonetheless allowed respondent-father to spend the night in the home while KDB and her other children were present. Respondent-mother also encouraged her children to lie to DHHS workers about respondent-father's presence. Given this evidence, the trial court did not clearly err by finding that termination of respondents' parental rights was in the best interests of PIJ, KOJ, and FDJ.
Affirmed.
/s/ Elizabeth L. Gleicher
/s/ Michael F. Gadola
/s/ Anica Letica