Opinion
361566
12-21-2023
In re BATES, Minors.
UNPUBLISHED
Grand Traverse Circuit Court Family Division LC No. 18-004645-NA
Before: GLEICHER, C.J., and Kirsten Frank Kelly and Anica Letica, JJ.
ON REMAND
PER CURIAM.
This case returns to us on remand from the Michigan Supreme Court to consider "whether the Grand Traverse Circuit Court clearly erred by concluding that termination of the respondent's parental rights was in the children's best interests." In re Bates, Mich.; 996 N.W.2d 130 (2023). Because we conclude the trial court did not clearly err when it terminated respondent's parental rights, we affirm.
Although the Michigan Supreme Court remanded the case to us to consider whether termination was in the children's best interest, the Supreme Court did not disturb our opinion affirming the trial court's statutory grounds for termination, which remains law of the case. See Augustine v Allstate Ins Co, 292 Mich.App. 408, 425; 807 N.W.2d 77 (2011) (stating that under the law-of-the-case doctrine, "this Court's determination of an issue in a case binds both the trial court on remand and this Court in subsequent appeals.").
The circuit court discounted the positive arc of mother's recovery by noting she had experienced a "relapse" a month before the termination hearing that "[s]he failed to report" to her caseworker or her recovery coach. This is not factually accurate. The caseworker testified mother did report that she purchased a small bottle of wine, took a couple of sips, and dumped the rest down the drain "after she realized it wasn't worth it." Mother also reported this "relapse" to her probation officer. I would characterize mother's sips of wine as a slip rather than a relapse; her actions did not reflect an abandonment of her recovery plan, but rather her recognition and acknowledgment that she needed to remain in recovery. That mother self-reported gained her no credit, either.
I. BASIC FACTS AND PROCEDURAL HISTORY
In this Court's previous 2-1 majority decision, the relevant facts and procedural history were set forth as follows:
In December 2019, the Department of Health and Human Services (DHHS) filed a petition requesting that the trial court take jurisdiction over the children,
remove them from respondent's care, place them with their father, and terminate respondent's parental rights. An amended petition was filed in January 2020.
The petition was filed as a result of respondent's substance abuse and mental health issues, prior Child Protective Services cases involving her abuse of alcohol, and her inability to care for her children's health care needs. Approximately one year before the petition, AAB was diagnosed with type 1 diabetes. The petition alleged that respondent could not care for AAB because while AAB was in her care, she failed to give him insulin and monitor his blood sugar levels for several days while he was observably sick. As a result, AAB went into diabetic ketoacidosis and was in critical condition at the hospital and in a coma for several days. In November 2020, respondent pleaded guilty to one count of third-degree child abuse because of her failure to provide AAB with proper medical assistance. Respondent was sentenced to five months in jail and 18 months' probation and was incarcerated from January 2021 until April 2021. When she was released, respondent violated her probation in July 2021 for consuming alcohol and was incarcerated again from July 2021 until October 2021. Respondent also was arrested twice for shoplifting in July 2021 and was intoxicated during these two incidents. The trial court held a termination hearing in March and April 2022, and concluded there was clear and convincing evidence to terminate respondent's parental rights under MCL 712A.19b(3)(c)(i) (conditions that led to adjudication continue to exist) and (j) (reasonable likelihood of harm if returned to parent), and that termination was in the children's best interests. [In re Bates, unpublished per curiam opinion of the Court of Appeals, issued March 23, 2023 (Docket No. 361566), pp 1-2 (footnote omitted).]
On appeal, the majority affirmed the trial court's determination that statutory grounds for termination had been demonstrated by clear and convincing evidence. In relevant part, the Court stated:
The trial court concluded that statutory grounds for termination were met under MCL 712A.19b(3)(j) because of respondent's failure to care for AAB's diabetes, failure to educate herself about AAB's diabetes until after she was diagnosed with type 1 diabetes herself, diminution of her role in AAB's diabetic ketoacidosis and hospitalization, deflecting of blame to others, and continued substance abuse and mental health issues. The court noted that "[g]iven Respondent Mother's continued propensity to diminish her role in [AAB]'s [diabetic ketoacidosis] and deflect blame along with her continued struggle with substance abuse throughout this case, there is clear and convincing evidence that there is a reasonable likelihood that the children will be harmed if they are returned to the home of Respondent Mother."
The record before us demonstrates that the trial court did not clearly err when it concluded there was a reasonably likelihood the children would be harmed if returned to respondent's care. Respondent struggled with mental health and substance abuse issues which had a negative effect on the children, culminating with AAB being hospitalized and near death as a result of respondent's neglect.
Respondent admitted that she did not educate herself about diabetes until she was diagnosed with the disease, which occurred after AAB's diagnosis. During the pendency of this case, respondent was unable to maintain sobriety and was arrested twice for shoplifting while intoxicated. Respondent's struggles with substance abuse created a life-threatening emergency to AAB, and respondent was unable to demonstrate to DHHS that she was prepared to safely care for her children going forward. Indeed, the children themselves stated they did not feel safe in respondent's care and wanted to have another adult check on them when with respondent. Accordingly, the trial court did not clearly err when it concluded that there was clear and convincing evidence that there was a reasonable likelihood the children would be harmed if returned to respondent's care. See In re LaFrance Minors, 306 Mich.App. 713, 728; 858 N.W.2d 143 (2014) (trial court did not clearly err when it terminated respondent-father's parental rights where the evidence showed the respondent medically neglected his child, had substance abuse issues that would continue to pose a risk to the child, and failed to participate in services to care for child with medical needs). [In re Bates Minors, unpub op at 2-3 (footnote omitted).]
Judge Gleicher dissented, focusing on whether "it is in the children's best interests to terminate their relationship with their mother." Id. (GLEICHER, C.J., dissenting) at 5. Noting that "the children here have permanence and stability with their father," and that there was "no evidence whatsoever that the children's supervised visits with their mother harmed them," Judge Gleicher concluded:
[I]n its 42-page opinion exquisitely detailing mother's past failures and misdeeds, the trial court labored to ignore her successes and the powerful evidence of her present fitness. In my view, the termination of mother's parental rights based on her past conduct was mostly punitive rather than advancing anyone's best interests. I fear that the destruction of the children's relationship with their mother will punish them, as well. These children are not abused or neglected. They are not at risk of being abused or neglected. The permanent termination of their relationship with their mother punishes them as well as mother and conflicts with their short-term and long-term best interests. [Id. at 6.]
Respondent subsequently applied for leave with the Michigan Supreme Court, seeking review of this Court's determination that statutory grounds for termination were proper and, raising for the first time on appeal, the question of whether the trial court clearly erred when it concluded that termination was in the children's best interests. In lieu of granting respondent's application, the Supreme Court remanded the case to us "for consideration whether the Grand Traverse Circuit Court clearly erred by concluding that termination of the respondent's parental rights was in the children's best interests." In re Bates, __ Mich. __; 996 N.W.2d 130 (2023).
II. APPLICABLE LAW
This Court reviews a trial court's best-interest determination for clear error. In re White, 303 Mich.App. 701, 713; 846 N.W.2d 61 (2014). A trial court's findings are clearly erroneous if the reviewing court is "definitely and firmly convinced that it made a mistake." In re Keillor, 325 Mich.App. 80, 85; 923 N.W.2d 617 (2018). Whether termination of parental rights is in a child's best interests must be proven by a preponderance of the evidence. In re Moss, 301 Mich.App. 76, 90; 836 N.W.2d 182 (2013). This Court must defer to the trial court's special opportunity to observe the witnesses. In re Dearmon, 303 Mich.App. 684, 700; 847 N.W.2d 514 (2014).
"That custody with natural parents serves a child's best interests remains a presumption of the strongest order and it must be seriously considered and heavily weighted in favor of the parent." In re LaFrance Minors, 306 Mich.App. 713, 724; 858 N.W.2d 143 (2014) (quotation marks and citations omitted). Although termination of parental rights requires proof of at least one of the statutory termination factors on clear and convincing evidence, "the preponderance of the evidence standard applies to the best-interest determination." In re Moss, 301 Mich. at 83.
"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." MCL 712A.19b(5). "In deciding whether termination is in the child's best interests, the court may consider 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." In re Olive/Metts Minors, 297 Mich.App. 35, 41-42; 823 N.W.2d 144 (2012) (citations omitted). "The trial court may also consider . . . the parent's compliance with his or her case service plan, the parent's visitation history with the child, [and] the children's well-being while in care ...." In re White, 303 Mich.App. at 714. Each factor should be considered by the trial court separately for each child, but individual findings are not required if the children's interests are similar. Id. at 715-716. Importantly, when the court conducts a best-interests analysis, the appropriate focus "has always been on the child, not the parent." In re Moss, 301 Mich. at 87.
III. BEST INTERESTS
Respondent argues that the trial court clearly erred when it found by a preponderance of the evidence that termination was in the children's best interest. Specifically, respondent contends that the trial court clearly erred because it failed to consider whether termination was the least restrictive means possible to protect the safety and wellbeing of the children. We disagree and affirm the trial court's order.
In this case, the trial court explained its best-interest determination, stating:
[The children's] need for permanence, stability and finality, and the length of time both children may be required to wait for Respondent Mother to rectify her substance abuse and mental health issues weighs in favor of termination of Respondent Mother's parental rights as to [the children].
Respondent Mother's mental health and substance abuse issues have been affecting her ability to care for her children, since [AMB] was born in 2015 and continue to persist despite [AAB] nearly losing his life and her children being removed from her care since January 2020.
Although [the children] have been removed for over two years, Respondent Mother is only recently showing ANY benefit with regards to her substance abuse. However, her substance abuse and mental health issues continue to persist. By her own admission, she recently relapsed in February 2022. She failed to report this relapse to her caseworker or her recovery coach.
Respondent Mother's 2018 psychological evaluation indicated that "[s]he has a marked tendency to overvalue her personal worth and become preoccupied with her own needs at the expense of concern about others. She has a tendency to externalize blame and responsibility and entitlement to what she wants." Her testimony at trial, as well as her statements made in text messages to NonRespondent Father, evidences that she continues to externalize blame.
Given the length of time [the children] have been removed-over two years in the present case-and [respondent's] continued struggles with substance abuse and mental health, termination is in [the children's] best interest.
It is clear that Respondent Mother loves her children. With regards to the bond between [the children] and Respondent Mother, the children appear to enjoy spending time with Respondent Mother; however, they both express concerns about being alone with Respondent Mother.
Since Respondent Mother completed her inpatient treatment, supervised visits have been going well. [The children] do appear to enjoy spending time with their mother at visits, which have been occurring in a restaurant or indoor play type of facility.
However, due to the short length of time that Respondent Mother has been out of inpatient therapy, the number of positive visits the children have had with Respondent Mother is very limited, and these visits are in a supervised setting.
Amie Ollis, [AAB]'s trauma therapist, regularly asks about [AAB]'s time with his mother, and he does not give negative or positive responses; rather he is very neutral. Notably, [AAB] expressed that if he was to go back to his mom or spend more time with his mom, he was concerned that he would have to take care of his little brother.
Ms. Ollis has never observed parenting time or met Respondent Mother; however, she testified that she believed that stopping the visits with Respondent Mother would not negatively affect [AAB]. She indicated that she believes [AAB] would miss his mother; however, she does not believe that the relationship is providing sustenance to his development. She testified that she believes that given their removal in January 2020 and the inconsistent visits owing to Respondent Mother's incarcerations and unavailability, [AAB] has already experienced the loss of his mother.
Ms. Couture, [AMB]'s therapist testified that [AMB] knows that he needs to be in a safe environment and has indicated that he wants to visit with his mother, but he wants an adult to come every day to check on him to make sure that he is okay.
[The children] are doing extremely well in the care of their father. Amie Ollis, [AAB]'s trauma therapist, testified [AAB] was presenting with minimal stressors and seems to be thriving at school and home. Non-Respondent Father is very attentive to [AAB]'s medical needs. He testified that he sets an alarm at 2:30 a.m. every morning to check on [AAB].
Likewise, [AMB]'s therapist, Deanna Couture, testified that [AMB] is a smart little guy and is doing well.
Although [the children] are placed with their father, this Court finds that termination of Respondent Mother's parental rights is still in [the children]'s best interests. Respondent Mother previously has had multiple opportunities to prove that she can safely parent [the children], but has failed to do so. The abuse and neglect case which was initiated in 2018 was closed when the parents negotiated a custody order under which Respondent Mother was to have supervised visits and then transition to unsupervised time. Less than nine months after that stipulation was executed, [AAB] nearly lost his life while in the care of Respondent Mother. Respondent Mother's mental health and substance abuse issues have been affecting her ability to care for her children since [AAB] was born and continue to persist despite [AAB] nearly losing his life and her children being removed from her care since January 2020.
The trial court did not clearly err when it found termination to be in the best interests of the children. Respondent contends that in order to withstand constitutional scrutiny, courts cannot "evaluate the benefits of termination in isolation," and "must consider termination only after concluding these alternatives would less adequately serve the child's needs." According to respondent, the trial court failed to do so because "the children were living safely with their father and had a strong relationship with their mother." Contrary to respondent's arguments, the trial court did consider these factors when terminating respondent's parental rights, and took the appropriate steps to attempt reunification of the children with respondent. When the first petition was filed in 2018, it was eventually withdrawn after respondent and the children's father entered into a custody order that attempted to address the concerns raised in the petition. Only a few months later, AAB went into diabetic ketoacidosis due to respondent's neglect. And despite what should have been a wakeup call, respondent continued to deny responsibility and failed to comply with her service plan over the course of three years. We therefore reject the assertion that the trial court failed to properly consider the "least restrictive means" when concluding that the children's best interests would be served by terminating respondent's parental rights. DHHS made a good faith effort to achieve reunification by providing respondent access to services and giving her ample opportunities to demonstrate compliance.
Respondent suggests that the "least restrictive means" were not considered because the children were living with their father and the issues with the children could have been settled through a custody order. As previously noted, the trial court tried this approach and it did not succeed after respondent failed to seek medical care for AAB's diabetes. Moreover, contrary to respondent's assertions, the trial court did consider this factor, including that it weighed against termination, stating: "A child's placement with relatives weighs against termination of parental rights under MCL 712A 19a(6)(a), and the fact that a child is living with relatives when the case proceeds to termination is a factor to be considered in determining whether termination is in a child's best interest." Thus, in the trial court's view, respondent's demonstrated inability to consistently maintain sobriety or care for her children compelled termination, even though the children were living with their father.
Respondent also argues that the least restrictive means were not considered because she demonstrated "tremendous strides in addressing her struggles with substance abuse." Although we laud respondent's optimism with overcoming her "struggles with substance abuse," the record amply supports the trial court's conclusion that respondent's failure to make progress in or complete the services offered by DHHS concerning her substance abuse weighed in favor of termination. See In re Atchley, 341 Mich.App. 332, 347; 990 N.W.2d 685 (2022) (stating that termination was proper "given respondent-mother's consistent lack of progress toward reunification-including her ongoing and unrectified substance-abuse issues ...."). Moreover, the appropriate focus at this stage is not necessarily on the success of respondent's recovery, but on whether the children will have their bests interests served by remaining with respondent while she undergoes recovery. See In re Moss, 301 Mich. at 87. Although at the time of the hearing the court noted that respondent had made some progress toward overcoming her substance abuse issues, the court also found that respondent's issues continued to "persist," including a relapse in January and February 2022 that respondent failed to acknowledge was an issue.
On appeal, respondent does not meaningfully challenge the trial court's findings concerning her lack of progress, but rather offers contrary examples of compliance as well as aspirations that her outlook continues to improve. To the extent that respondent argues the trial court failed to appropriately weigh the evidence or give certain witnesses more credibility over others, we defer to the trial court. In re Dearmon, 303 Mich.App. at 700. But perhaps most importantly, while respondent uses many pages of her brief in an attempt to demonstrate how she has changed and is capable of being a good parent, the focus of a best-interests analysis is not on the parent but the children. Id. And while it is encouraging that respondent is taking steps to overcome her issues, the record before the trial court showed consistent lack of progress and failure to take responsibility for her actions. It must be mentioned that respondent's interaction with DHHS began in 2018 when the children were found in respondent's care when she was found unresponsive with a blood alcohol level of ".370." Despite putting a safety plan in place and receiving mental health services, respondent's condition did not improve, and she was allegedly found months later living with "fecal matter from the cats on the beds and floor," "urine pooled up on the hardwood floor and stains on the carpets," the washer and dryer were packed with clothes, there was "feces on the clothing," one of the bathrooms was clogged with "feces on the toilet seat and in the toilet bowl," there was "standing water in the basement," and the home smelled "strongly of urine and feces."
In our view, many of the arguments that respondent advances in her brief are more appropriate in the context of whether there were statutory grounds to terminate her rights, not on whether it is in the best interests of the children. To the extent respondent wants to relitigate those issues, they have already been resolved.
The additional factors sharing the same theme include: "Whether the parent can provide a permanent, safe, and stable home"; "The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs"; "The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity"; and "The permanence, as a family unit, of the existing or proposed custodial home or homes."
Despite intensive intervention and services, respondent failed to demonstrate she could provide a safe home for the children. After being jailed for probation violations and retail fraud in late 2021-almost three years after the petition in this case was filed-respondent relapsed again in January and February 2022. Respondent refused to acknowledge the relapses, stating she only had some "sips" of alcohol which were a "mistake," even though it was demonstrated that on at least one occasion the alcohol was purchased while respondent was shopping with the children. Given these facts, it was not clearly erroneous for the trial court to conclude that it was in the children's best interests to terminate respondent's parental rights.
The record also supports the trial court's finding that the children's safety would be in danger if they were returned to respondent's care. See In re VanDalen, 293 Mich.App. 120, 141; 809 N.W.2d 412 (2011) (concluding that the trial court did not clearly err by finding termination proper because "[c]ompelling evidence indicated that the children would not be safe in respondents' custody considering that both children suffered unexplained injuries with serious abuse while in respondents' primary care."). This Court already affirmed the trial court's conclusion that termination was proper under MCL 712A.19b(3)(j) because of 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":
Respondent struggled with mental health and substance abuse issues which had a negative effect on the children, culminating with AAB being hospitalized and near death as a result of respondent's neglect. Respondent admitted that she did not educate herself about diabetes until she was diagnosed with the disease, which occurred after AAB's diagnosis. During the pendency of this case, respondent was unable to maintain sobriety and was arrested twice for shoplifting while intoxicated. Respondent's struggles with substance abuse created a life-threatening emergency to AAB, and respondent was unable to demonstrate to DHHS that she was prepared to safely care for her children going forward. Indeed, the children themselves stated they did not feel safe in respondent's care and wanted to have another adult check on them when with respondent. [In re Bates, unpub op at 3.]
We therefore conclude again-now under the framework of best interests-that the trial court did not clearly err when it concluded that it would not be in the children's best interest to be returned to respondent and that further efforts toward reunification not be made. See MCL 712A.19b(5). Respondent initially failed to properly learn to care for AAB's diabetic condition, which almost resulted in his death, and never fully took responsibility for her failures before the trial court, instead shifting blame to others. And although respondent was able to later demonstrate competence with treating AAB's diabetic condition, she did not demonstrate to the trial court that she could remain sober around, and therefore care for, the children on a consistent and reliable basis. The children themselves stated that they wanted other adults to be available for them during their visits with respondent in case something happened. Considering the needs of the children, the trial court did not err by removing the instability and insecurity that respondent presented in their lives.
The trial court did not clearly err when it terminated respondent's parental rights on the basis of what was in the best interests of the children. Although the trial court did not frame the issue as one of "least restrictive means" (it could not have given respondent's failure to raise the issue in that court), the trial court did consider the issues raised by respondent here-i.e., the placement of the children with the father and respondent's record of compliance and sobriety- and concluded that in each instance termination was warranted.
Affirmed.
GLEICHER, C.J. (dissenting)
The majority accurately observes that our task on remand is to train our sights on whether the circuit court correctly concluded that the children's best interests were served by the termination of their mother's parental rights. I agree with the majority that "the focus of a bestinterests analysis is not on the parent but the children."
But the majority opinion never engages with that principle. Instead, the majority belabors mother's past, barely mentions the children, and avoids confronting powerful evidence that mother and her children were strongly bonded. Nor does the majority explain why a less drastic and restrictive alternative to termination should have been reflexively disregarded. I would remand for a new best-interest hearing guided by the principle that termination is unwarranted where there are less restrictive permanency alternatives that safely preserve parent-child relationships.
I
Immediately after reciting that the children's needs and interests must be at the center of our attention on remand, the majority launches into a several-page-long, detailed recapitulation of mother's past transgressions. Little of this litany of mother's errors and omissions involves her more recent relationship with her children. As in the majority's initial opinion, mother's past misconduct takes center stage, while her post-rehabilitation gains (undeniable), efforts to achieve sobriety (laudable), and successes at achieving sobriety (impressive although not perfect) are overlooked. As I said before, "mother's past doomed her efforts to maintain her parental rights. Despite mother's success in constructively addressing her alcoholism and substance abuse, her willingness to take responsibility for injuring her child, and even though her children were safely placed with their father, the court terminated her parental rights." In re Bates, unpublished per curiam opinion of the Court of Appeals, issued March 23, 2023 (Docket No. 361566) (GLEICHER, C.J., dissenting), p 2. On remand, nothing has changed. The majority's best-interest evaluation favoring termination, like that of the circuit court, is scripted by mother's past, flavored by a need to punish rather than to preserve enduring emotional bonds.
Reviewed through a best-interest lens, the evidence supports that terminating mother's rights to her children was unnecessary and contrary to their best interests. Because the children were safely and securely placed in their father's custody, were bonded with their mother, and mother's visits with the children were uniformly positive, termination was inappropriate on best interest grounds.
II
This Court has identified multiple considerations that should inform a court's best-interest determination. Precious few of them factored into the evaluations of either the circuit court or the majority. Regarding those that did, the circuit court advanced a one-sided view of the evidence, avoiding any mention of facts weighing against termination. The majority parrots the circuit court.
Here are 20 factors this Court has recognized as pertinent to a best-interest inquiry in a termination of parental rights setting:
• "[T]he child's bond to the parent," In re White, 303 Mich.App. 701, 713; 846 N.W.2d 61 (2014) (quotation marks and citation omitted);
• "[T]he parent's parenting ability," id. (quotation marks and citation omitted);
• "[T]he child's need for permanency, stability, and finality, and the advantages of a foster home over the parent's home," id. (quotation marks and citation omitted);
• The "parent's history of domestic violence," id.;
• The parent's compliance with a case service plan; id.;
• "[T]he parent's visitation history with the child," id.;
• "[T]he children's well-being while in care," id.;
• The parent's psychological evaluation, In re Jones, 286 Mich.App. 126, 129; 777 N.W.2d 728 (2009);
• The age of the child, id. at 129-130, and
• The parent's substance-abuse history, In re Rippy, 330 Mich.App. 350, 361; 948 N.W.2d 131 (2019);
• Whether the parent can provide a permanent, safe, and stable home, In re Frey, 297 Mich.App. 242, 248-249; 824 N.W.2d 569 (2012);
•" 'The love, affection, and other emotional ties existing between the parties involved and the child,'" In re Medina, 317 Mich.App. 219, 238; 894 N.W.2d 653 (2016), quoting MCL 722.23(a);
•" 'The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any,'" Medina, 317 Mich.App. at 238, quoting MCL 722.23(b);
•" 'The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs,'" Medina, 317 Mich.App. at 238, quoting MCL 722.23(c);
•" 'The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity,'" Medina, 317 Mich.App. at 238, quoting MCL 722.23(d);
•" 'The permanence, as a family unit, of the existing or proposed custodial home or homes,'" Medina, 317 Mich.App. at 238, quoting MCL 722.23(e);
•" 'The moral fitness of the parties involved,'" Medina, 317 Mich.App. at 238, quoting MCL 722.23(f);
•" 'The mental and physical health of the parties involved,'" Medina, 317 Mich.App. at 238, quoting MCL 722.23(g);
•" 'The home, school, and community record of the child,'" Medina, 317 Mich.App. at 239, quoting MCL 722.23(h);
•" 'The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents,'" Medina, 317 Mich.App. at 239, quoting MCL 722.23(j);
Focusing on the factors for which record evidence exists, it is impossible to conclude that termination of mother's rights served the best interests of her children.
A. BONDING, VISITING, PARENTING
At least five of the above factors involve a parent's relationship with a child: "the child's bond to the parent," "the parent's parenting ability," "the parent's visitation history with the child," "the love, affection, and other emotional ties existing between the parties involved and the child," and "the capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child." The children involved in this case are now ages 13 and 8; they were approximately two years younger when the evidence was gathered. Even at their earlier ages, the children were capable of reliably demonstrating the existence (or nonexistence) of a bond with their mother.
The only objective witness with first-hand knowledge of the relationship between mother and her children was Michelle Reddy, a "supportive visitation specialist" for Family Supportive Services of Northern Michigan. Reddy observed two months of weekly visits between mother and her children. Reddy testified she had no concerns regarding mother's ability to care for either of the children. Perhaps more importantly, Reddy reported both children were "always happy to see" their mother during visits, would "run to her, jump into her arms, hugs, kisses," and shared with her what they did that week. They "asked if they were going to have more visits or longer visits," and seemed to "enjoy" the longer visits over the shorter ones. She added that the boys were "always anxious to plan their next visit and know when they're going to see her, what they're going to do."
Parenting time typically occurred during dinner at a restaurant, and the children would frequently play games, bowl, read, draw pictures, and socialize with mother. Reddy observed that mother and the children "interact great together," and their conversations flowed "naturally." Mother always asked AAB for his blood sugar levels, looked at his blood sugar monitor, questioned him regarding what he had to eat that day, spoke with him about what he would have for dinner, and give him the appropriate dosage of insulin. Mother also checked his blood sugar levels later during each visit and gave him additional doses of insulin if necessary. AMB would bring a book and read to his mother, while AAB brought drawings to show her. Reddy had no concerns regarding respondent's general ability to care for the children, or for AAB's diabetes in particular. Overall, Reddy believed that it would be "detrimental" to both children if they did not see respondent and testified that the seemed genuinely attached.
Neither the circuit court nor the majority discuss this testimony. Rather, the circuit court focused on the testimony of two people who never met mother and never witnessed mother's interactions with her children. The circuit court observed that Amie Ollis, AAB's "trauma therapist," opined that AAB would not be negatively affected if his visits with his mother stopped, and that he was not benefiting from a relationship with her. Ollis, who admitted to having little information about AAB's visits with his mother except that they went well, conceded AAB was generally doing well, had "minimal stressors," and seemed "to be thriving at school." Despite having no first-hand information and no negative information regarding AAB's relationship and bonding with his mother, Ollis opined: "he would miss his mom, but I don't know that . . . he's benefitting from the relationship right now [or it] is providing any sustenance to his development."
The circuit court's decision to credit Ollis's testimony regarding AAB's best interests is problematic, given the limited information she had regarding that relationship. Ollis admitted the only time AAB said anything "very negative" about his mother was an expression that "he felt like he was - this is my - my interpretation was that he felt like he was responsible for his brother, like for taking care of him, and he specifically said that he didn't like having to eat peanut butter and jelly sandwiches all of the time and he always had to make them for his brother." The circuit court apparently determined that Ollis's "interpretation" of whatever AAB said about peanut butter sandwiches supported that termination of his mother's rights would serve his best interests. In my view, Ollis offered and the circuit court endorsed a constricted and cavalier analysis of a life-critical relationship.
The circuit court noted that Deanna Couture, AMB's therapist, testified that AMB "wants to visit with his mother, but he wants an adult to come every day to check on him to make sure that he is okay." But the circuit court omitted Couture's admission that AMB did not disclose anything that would make her think an adult should supervise visits with his mother, that Couture had never seen AMB interact with his mother or his father, and that AMB never brought up either parent during counseling sessions. The circuit court also omitted that the resumption of parenting time did not result in any behavioral issues or "problems" in AMB's therapy.
Viewed objectively, a preponderance of the evidence demonstrated that mother and the children were strongly bonded, had exceedingly positive visits, and that mother was more than capable of attending to her sons' emotional and physical needs. The circuit court failed to acknowledge or even attempt to refute powerful evidence supporting that multiple best-interest factors centering on bonding, visiting, and parenting capabilities supported the preservation of mother's parental rights. This omission constitutes clear error.
B. SUBSTANCE ABUSE, COMPLIANCE WITH A CASE SERVICE PLAN, MENTAL HEALTH, PSYCHOLOGICAL EVALUATION
Mother's alcoholism is the primary reason she lost her parental rights. It drove the circuit court's statutory-ground findings and the majority's conclusions the first time we considered this case. Chronic alcoholism may supply a reasonable basis for terminating a parent's rights. Here, however, the evidence supports that mother has committed to sobriety and made enormous strides in remaining substance free. Mother's recovery trajectory has not been perfect; recovering alcoholics rarely hew a flawless course. But the evidence at the termination hearing revealed mother voluntarily entered residential rehabilitation, received glowing reviews from her therapists, underwent weekly preliminary breath tests post-rehab, passing all of them, and successfully and positively addressed the conditions that led to the court's jurisdiction: her negligent care for her sons, her substance abuse, and her mental health issues.
In response to this evidence, the circuit court begrudgingly admitted mother was showing benefit regarding her substance abuse, stating: "Although [the children] have been removed for over two years, Respondent Mother is only recently showing ANY benefit with regards to her substance abuse." The court overlooked the short time available to mother to demonstrate any benefit. Mother was released from prison in October 2021, and immediately checked herself into residential rehab. Undisputed evidence established mother did well in rehab and was released in December 2021. The termination hearing occurred in March 2022, only four months later. Notably, mother was not offered a case service plan after her release from prison; she sought out and entered residential treatment on her own, a fact at least as compelling as compliance with a service plan. And the psychological evidence on which the court relied was from 2018, four years before the termination hearing, long before mother came to grips with her alcoholism and entered rehab. More recent evidence before the circuit court was far more positive.1
Perhaps recognizing that the evidence of mother's efforts at recovery weighed against termination, the majority simply discounts its importance. According to the majority, "the appropriate focus . . . is not necessarily on the success of respondent's recovery, but on whether the children will have their best interests served by remaining with respondent while she undergoes recovery." There are two problems with this statement. First, mother has not suggested her children "remain with her" while she undergoes recovery. Mother's briefing and argument has acknowledged that at this point in her recovery, she seeks a relationship with her children, not custody. Second, mother's continuing efforts to remain substance free should be a factor that counts as highly favorable. It is in her children's best interests that mother dedicate herself to remaining sober. Recovery is a life-long process. See Substance Abuse and Mental Health Services Administration, Recovery and Recovery Support, available at <https://www.samhsa.gov/find-help/recovery> (accessed December 20, 2023) ("Recovery is characterized by continual growth and improvement in one's health and wellness and managing setbacks. Because setbacks are a natural part of life, resilience becomes a key component of recovery."). The circuit court clearly erred by refusing to recognize and credit mother's progress in successfully addressing her alcoholism as a fact that served her children's best interests.
C. THE FACTORS GENERALLY INVOLVING THE NEED FOR PERMANENCY, STABILITY AND FINALITY2
In my original dissent, I maintained that termination of mother's parental rights was unnecessary because the children were living with their father in a safe, stable home:
More than a decade ago, our Supreme Court observed that "a child's placement with relatives weighs against termination," and held that the fact that a
child is living with relatives when the case proceeds to termination is a factor to be considered in determining whether termination is in the child's best interests. In re Mason, 486 Mich. 142, 164; 782 N.W.2d 747 (2010). Placement with a relative is a critical fact, because while in a relative's care, children may be able to preserve their parent-child relationship.
The trial court considered that the children were safely placed with their father, yet found that termination of mother's rights was in their best interest. The court's decision rested on its misapprehension that mother continued to suffer from serious mental health and substance abuse problems, which the record does not support. The court found, "AMB and AAB's need for permanence, stability and finality, and the length of time both children may be required to wait for Respondent Mother to rectify her substance abuse and mental health issues weighs in favor of termination of Respondent Mother's parental rights as to AAB and AMB." The record reflects that both children expressed interest in continuing a relationship with their mother, although both had concerns about her ability to safely care for them. The trial court acknowledged that the children "enjoy spending time with their mother at visits," and that they were doing well in their father's care.
Given these undisputed facts, I am at a loss to understand why it is in the children's best interests to terminate their relationship with their mother. The facts are no different than those of routine custody matters in which one parent may not be in a present position to provide custody in his or her home. In such cases, family courts commonly rule that one parent will maintain sole or primary custody, while the other is permitted to visit under certain conditions. Such orders fulfil the goal of the Juvenile Code: they preserve family relationships. In custody cases, a parent's rehabilitation may provide a change of circumstances allowing for increased custodial rights. Similarly, a parent's decline may result in the elimination of parenting time. Unlike the termination of parental rights, which forever severs a child's relationship with a parent and the parent's family, less onerous and adversarial proceedings offer both parent and child the possibility of a positive relationship and the opportunity to repair the damage a parent has caused.
The termination of parental rights frees a child for adoption, and in that sense can bring a child permanence and stability. But the children here have permanence and stability with their father. There is no evidence whatsoever that the children's supervised visits with their mother harmed them; to the contrary, the evidence supports that the children enjoyed seeing and interacting with her.
Other state courts have recognized that "removing the child from the abusive parent's custody but allowing that parent restricted visitation rights can be a viable alternative to termination of parental rights when it appears that a wayward parent cannot be rehabilitated but still shares a deep and beneficial emotional relationship with his or her children." TDK v LAW, 78 So.3d 1006, 1011 (Ala Civ App, 2011). "In such cases, permanently depriving children of association with a parent by terminating parental rights could do more harm than good to the children." Id. In Mason, our Supreme Court voiced the same sentiment regarding
the children involved in that case, observing that they would "continue to live with their aunt and uncle-both tomorrow and indefinitely-while respondent works with the court and the DHS to establish his ability to safely parent them." Mason, 486 Mich. at 168-169. Under the guidance of the family court, the respondent-father would "begin visiting with the children," with the aunt and uncle retaining "primary custody," potentially through a guardianship, if the court concluded that "the children should not be returned to respondent but an ongoing relationship with him-rather than termination-is in the children's best interests." Id. [Bates, (GLEICHER, C. J., dissenting), pp 5-6.]
The majority rejects that the children's placement with their father mattered because the circuit court allegedly considered that fact. The majority summarizes: "in the trial court's view, respondent's demonstrated inability to consistently maintain sobriety or care for her children compelled termination, even though the children were living with their father." But the circuit court's opinion goes no further than to reason that severing all ties with mother was necessary despite the boys' placement with their father because of mother's past "abuse and neglect" and pre-2020 substance abuse.
Like the circuit court's analysis of the statutory grounds, its determination that the children's best interests would be served by termination rested on the past, not the present. The majority's affirmance of that analysis means the conditions bringing a parent within the court's jurisdiction remain controlling at the best-interest stage, while a parent's efforts to remedy those conditions may remain meaningless. The result is that termination is in the children's best interests from the moment of adjudication if the court deems it so. The best-interest factors are merely words that may be ignored if a court decides a parent's past is her prologue, regardless that "the focus of a best interests analysis is not on the parent but the children." The message is: when placed on the best-interest scale, positive life changes simply cannot overcome past mistakes, regardless of a strong parent-child bond, solid parenting skills, joyful visits, compliance with a case service plan, mental health progress, voluntary rehabilitation efforts, and obvious love and affection shared by parent and child.
But there is a larger problem with the majority's analysis. Neither the majority nor the circuit court have explained why the boys' placement with their father weighs in favor of terminating mother's parental rights. The majority avoids any analysis of this issue at all, retreating behind the circuit court's findings.
By way of review: MCL 712A.19a(8)(a) provides that a court is not required to order the DHHS to initiate termination proceedings if a child is "being cared for by relatives." In In re Mason, 486 Mich. 142; 782 N.W.2d 747 (2010), the Supreme Court emphasized the importance of relative placement in the determination of whether termination of parental rights is warranted. Countless subsequent cases, including In re Olive/Metts, 297 Mich.App. 35, 43; 823 N.W.2d 144 (2012), have underscored that even at the best-interests stage, placement with relatives weighs against termination.
Why did the Legislature decree that placement with relatives weighs against termination? What is it about placement with a relative that blocks an easy glide path to termination, even when a parent is incarcerated, has a criminal record, or (as in Olive-Metts) has admitted to child abuse and poorly treated "psychiatric issues?"
I suggest that MCL 712A.19a(8)(a) embodies a recognition that children should not lose their connections even to imperfect parents so long as the children are safe and well cared for by a relative, including another parent. Placement with relatives can suffice to provide permanency and to keep children safe, while also allowing them to maintain critically important emotional relationships. "Much social science and legal research has concluded that terminating a legal relationship between parent and child harms the child-even when parents are so dysfunctional that they cannot raise the child." Gupta-Kagan, The New Permanency, 19 UC Davis J Juv L &Pol'y 1, 20 (2015). "Research has concluded that children with strong, ongoing bonds with parents, especially older children, benefit from ongoing relationships with their parents; and that children can bond closely with their caretaker without severing their relationship with parents- strong bonds with multiple caregivers is not only possible, but healthy and normal." Id. at 20-21.
Here, the evidence supports that at the time of the termination hearing, the children had a strong emotional attachment to their mother. They relished her company during visits, read to her, played with her, and shared the details of their lives with her. For years, social scientists have recognized that children may suffer when a parent is removed from their lives. See Beyer &Meynier, Lifelines to Biological Parents: Their Effect on Termination of Parental Rights and Permanence, 20 Fam L J 233, 237 (1986). An order terminating parental rights cannot magically erase that suffering.
I previously wrote:
In my view, the termination of mother's parental rights based on her past conduct was mostly punitive rather than advancing anyone's best interests. I fear that the destruction of the children's relationship with their mother will punish them, as well. These children are not abused or neglected. They are not at risk of being abused or neglected. The permanent termination of their relationship with their mother punishes them as well as mother and conflicts with their short-term and long-term best interests. [Bates, (GLEICHER, C.J., dissenting), p 6.]
Judges cannot magically dissolve a child's loving attachment to a parent, particularly relationships involving children of the ages of AMB and AAB, by simply signing termination orders. That is why placement with relatives weighs against termination. Here, the record contains only the speculation that severing the children's ties with their mother would serve their best interests. The strong weight of the evidence shows just the opposite, that mother's continued presence in her sons' lives benefits them.
I would reverse the circuit court and remand for an updated best-interests hearing at which the circuit court would be directed to make specific findings regarding the benefits (or detriments) of less restrictive alternatives than termination.