Opinion
No. 352462
08-13-2020
In re BEEMER, Minors.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Montcalm Circuit Court Family Division
LC No. 2018-000841-NA Before: SHAPIRO, P.J., and SERVITTO and LETICA, JJ. PER CURIAM.
Respondent-father appeals as of right the trial court's order terminating his parental rights to the minor children pursuant to MCL 712A.19b(3)(c)(i) (conditions at adjudication continue to exist), (3)(g) (failure to provide proper care and custody), and (3)(j) (likelihood that the children will be harmed if returned to the parent). We affirm.
The trial court also terminated the parental rights of the children's mother; however, she is not a party to this appeal.
The DHHS initially sought the removal of the children from mother because she was homeless and using methamphetamine. At the time of removal, respondent was incarcerated. Approximately a year later, the trial court ordered the DHHS to initiate termination proceedings after respondent failed to participate in the case service plan following his release from prison. Thereafter, trial court terminated the parental rights of both parents. Respondent now appeals.
I. THE PERMANENCY PLANNING HEARING
Respondent argues that the trial court prematurely ordered the DHHS to initiate termination proceedings because he was not afforded a permanency planning hearing and he should have been provided with additional time to participate in the case service plan. We disagree.
Initially we note that respondent failed to object to DHHS's request to file a termination petition. As a result, these issues are unpreserved. See In re TK, 306 Mich App 698, 703; 859 NW2d 208 (2014). We review unpreserved claims of error arising out of child protection proceedings for plain error. See In re Ferranti, 504 Mich 1, 29; 934 NW2d 610 (2019). "The respondents must establish that (1) error occurred; (2) the error was plain, i.e., clear or obvious; and (3) the plain error affected their substantial rights." Id. (quotation marks omitted). "Generally, an error affects substantial rights if it caused prejudice, i.e., it affected the outcome of the proceedings." See In re Utrera, 281 Mich App 1, 9; 761 NW2d 253 (2008).
In child protective proceedings, the trial court must review the case within 182 days of the child's removal and every 91 days thereafter during the first year of placement. MCL 712A.19(3). At a review hearing, the trial court must review the parent's compliance with the case service plan and whether the parent has made any progress toward alleviating or mitigating the conditions that caused the child to be placed in foster care. MCL 712A.19(6)-(7). "[I]f a child remains in foster care and parental rights to the child have not been terminated, the court shall conduct a permanency planning hearing within 12 months after the child was removed from his or her home." MCL 712A.19a(1); MCR 3.976(B)(2). The trial court shall determine whether a petition to terminate parental rights should be filed at each permanency planning hearing. MCL 712A.19a(4)(b).
In this case, the children were removed from mother's care in November 2018, while respondent was incarcerated. Contrary to respondent's position on appeal, the trial court held a combination review and permanency planning hearing on October 1, 2019. The initial dispositional order reflects that review hearings would occur in April and July 2019, while a combined review and permanency planning hearing would occur in October 2019. See MCL 712A.19a(1) (stating that "[i]f proper notice for a permanency planning hearing is provided, a permanency planning hearing may be combined with a review hearing[]"). Therefore, the trial court properly held a permanency planning hearing within a year of the children's removal. See id.; MCR 3.976(B)(2) ("[T]he court must conduct an initial permanency planning hearing no later than 12 months after the child's removal from the home[.]").
Likewise, respondent's contention that the trial court clearly erred in authorizing the filing of the termination petition "at the second dispositional hearing" is incorrect. As already explained, the trial court properly made its determination at the combined permanency planning hearing and third dispositional review hearing. See MCR 3.975(A) ("A dispositional review hearing is conducted to permit court review of the progress made to comply with any order of disposition and with the case service plan prepared pursuant to MCL 712A.18f and court evaluation of the continued need and appropriateness for the child to be in foster care.").
Respondent also contends that the trial court erred in authorizing the filing of a petition to terminate his parental rights because it rushed to judgment on the question of whether he was able to provide proper care and custody for the children within a reasonable time. We disagree.
At the combination review and permanency planning hearing, the trial court determined that neither parent had made any progress in regard to the case service plan, and as a result, the DHHS could not return the children to either parent. The trial court then directed the DHHS to initiate termination proceedings. Considering that respondent failed to participate in any services after he was released from prison in July 2019 and the children had been in care with the DHHS for almost a year, the trial court did not commit any error by ordering the DHHS to initiate termination proceedings, let alone plain error affecting respondent's substantial rights. See In re Utrera, 281 Mich App at 9.
Respondent next contends that authorizing termination was premature because he could provide proper care and custody via his parents. He asserts that his parents were willing and available to care for the children and that they sought guardianship and adoption, but "they were never considered" or investigated by the DHHS. Respondent provides no record citation for his claims and our review of the record reveals otherwise. At the termination hearing, respondent testified that he was not living with his parents because they would not allow him to do so while he was dating the children's mother. Respondent also volunteered that his mother was attempting to adopt the children. According to respondent, his parents would protect the children if they believed it was in the children's best interest not to have contact with him. On the other hand, the caseworker testified that the children were initially placed with their maternal relatives for a short time before being removed due to inappropriate housing. The caseworker did not discuss any other potential relative placements during the termination hearing. Moreover, our review of the record, including the confidential file, reveals that, outside of the failed maternal relative placement, other relative placements had been investigated and not approved. Given this record, we cannot conclude that the trial court erred in directing the DHHS to file a termination petition at the conclusion of the permanency planning hearing.
Respondent also implies that the trial court authorized termination, following the purported DHHS policy against recommending guardianship for children under the age of 10. Our Supreme Court recently repudiated this purported practice in reviewing a best-interest determination made during a termination of parental rights hearing. In re Affleck/Kutzleb/Simpson, 505 Mich 858; 935 NW2d 316 (2019). The Court held that the trial court must "decide the best interests of each child individually," taking into consideration sibling relationships rather than utilizing a blanket policy. Id . Contrary to respondent's suggestion, the record here supports the conclusion that the trial court opted to authorize termination based on the parents' failure to engage in the services offered as well as their continued drug use and criminal activity. As these were proper reasons, we find no error.
II. TERMINATION OF PARENTAL RIGHTS
Next, respondent asserts that the trial court erred by terminating his parental rights. We disagree.
"In order to terminate parental rights, the trial court must find by clear and convincing evidence that at least one of the statutory grounds for termination in MCL 712A.19b(3) has been met." In re VanDalen, 293 Mich App 120, 139; 809 NW2d 412 (2011). "We review the trial court's findings of fact under the clearly erroneous standard." In re HRC, 286 Mich App 444, 459; 781 NW2d 105 (2009). "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). We are "obliged to defer to a trial court's factual findings at termination proceedings if those findings do not constitute clear error." In re Rood, 483 Mich 73, 90; 763 NW2d 587 (2009).
A. STATUTORY GROUNDS
Respondent's parental rights were terminated pursuant to MCL 712A.19b(3)(c)(i), (g), and (j), which provide:
(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:Respondent correctly recognizes that the trial court terminated his parental rights pursuant to subsections (g) and (j), but erroneously states that his parental rights were terminated under MCL 712A.19b(3)(h) ("The parent is imprisoned for such a period that the child will be deprived of a normal home for a period exceeding 2 years, and the parent has not provided for the child's proper care and custody, 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."). Respondent explicitly challenges the trial court's decision insofar as it was based on subsection (g), but fails to challenge the trial court's findings with respect to subsections (c)(i) and (j). Because only one ground for termination need be established, respondent's challenge predicated on the alleged failure to establish the requisite statutory grounds is without merit. In re JS & SM, 231 Mich App 92, 98-99; 585 NW2d 326 (1998), overruled in part on other grounds In re Trejo, 462 Mich 341, 353; 612 NW2d 407 (2000).
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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.
In any event, in the interest of completeness, we also conclude that the trial court did not clearly err in finding that there were statutory grounds supporting termination of father's respondent's parenting rights under subsection (g).
The dispositional order was entered in January 2019, and the termination hearing occurred in January 2020. The basis for adjudication was that respondent could not provide proper care or custody of the children because he was incarcerated. Respondent was ordered to participate in services, including substance abuse treatment, twice weekly random drug screens, regular counseling sessions, a psychological evaluation, and to cooperate with the foster-care worker. He was also supposed to obtain suitable housing and test negative for substances not prescribed by a doctor. Respondent was released from prison in July 2019. However, at the time of the termination hearing, which occurred one year after the initial disposition, respondent had not participated in a majority of the services. In fact, respondent was arrested twice for parole violations and he twice tested positive for methamphetamine. Respondent was again in jail at the time of the termination hearing, and, if not reincarcerated, he would be required to attend inpatient substance abuse treatment. As a result, after the children had been in care for over one year, respondent was again incarcerated, had not completed a majority of his services, and continued to use methamphetamine. Respondent's failure "to participate in and benefit from a service plan is evidence that [he] will not be able to provide a child proper care and custody." In re White, 303 Mich App 701, 710; 846 NW2d 61 (2014).
Further, it was unlikely that the children could be returned to respondent's care within a reasonable time considering their ages, five and three years old. First, respondent was incarcerated at the time of the termination hearing. As already mentioned, respondent's parole officer testified that respondent could be facing new charges for the use and possession of methamphetamine. And, even if respondent did not face additional charges, his parole officer stated that he was going to recommend that respondent engage in inpatient substance abuse treatment. Second, respondent failed to participate in most of the services, only participating in parenting time, after he was released from prison. Even so, respondent rarely saw his children and it appears that he stopped attending parenting time after a warrant was issued for his arrest. Respondent also tested positive for methamphetamine and absconded from parole. As a result, even after his release from jail or a treatment facility, respondent would be required to participate in services and show a benefit from those services before the children could be returned to him. Ultimately, respondent was in the exact situation he was in at the time of adjudication and he made very little progress in regard to the case service plan after one year. As a result, the trial court did not clearly err in finding that termination was warranted under MCL 712A.19b(3)(g).
B. BEST INTERESTS
The trial court did not clearly err by finding that termination of respondent's parental rights was in the children's best interests.
Respondent raises this point in his first argument as part of his claim that termination under subsection (h) was inappropriate. Again, the trial court did not terminate respondent's parental rights under subsection (h); however, in the interest of completeness, we address respondent's contentions here. --------
"[W]hether termination of parental rights is in the best interests of the child must be proved by a preponderance of the evidence." In re Moss, 301 Mich App 76, 90; 836 NW2d 182 (2013). We review the trial court's "decision regarding the child's best interest" for clear error. In re Olive/Metts Minors, 297 Mich App 35, 40; 823 NW2d 144 (2012) (quotation marks omitted).
"Once a statutory ground for termination has been proven, the trial court must find that termination is in the child's best interests before it can terminate parental rights." Id. When the trial court considers a child's best interests, the focus must be on the child, not the parent. In re Moss, 301 Mich App at 87. "The trial court should weigh all the evidence available to determine the child's best interests." In re White, 303 Mich App at 713. "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 at 41-42 (citations omitted). A trial court can also consider the length of time the child "was in foster care or placed with relatives," and whether it was likely that "the child could be returned to [the parent's] home within the foreseeable future, if at all." In re Frey, 297 Mich App 242, 248-249; 824 NW2d 569 (2012).
In this case, the trial court did not question respondent's affection for his children. However, the trial court opined that respondent's lifestyle interfered with his parenting, especially his criminal behavior. The trial court did not believe that respondent could care for the children long term. The children needed permanence as they continually moved from one house to another while respondent had been in and out of their lives. The trial court pointed out that these young children had been exposed to insecurity, drug abuse, and inconsistency. Ultimately, the trial court did not believe that respondent could properly parent.
The trial court's ruling was not clearly erroneous. Respondent failed to make progress despite the numerous services offered and he was again incarcerated at the time of the termination hearing. See In re Olive/Metts Minors, 297 Mich App at 40. After respondent addressed his legal and substance-abuse issues, he would be required to show a benefit from services, and he had barely engaged in his case service plan. As a result, it was unclear whether the children could be returned to respondent within a reasonable time, if ever, considering that they had been in care since November 2018. See In re Frey, 297 Mich App at 248-249. Accordingly, the trial court did not clearly err in determining that termination of respondent's parental rights was in children's best interests. See In re Olive/Metts Minors, 297 Mich App at 40.
On appeal, respondent suggests that the trial court erred by not considering the best interests of each child individually. See id. at 43-44 (explaining that the trial court clearly erred by failing to consider the best interests of each child individually). However, in White, 303 Mich App at 715-716, we explained that "if the best interests of the individual children significantly differ, the trial court should address those differences when making its determination of the children's best interests." The trial court does not automatically err by failing "to explicitly make individual and—in many cases—redundant factual findings concerning each children's best interests." Id. at 716.
Here, the trial court explained that it would not make separate findings in regard to each child because they were of similar ages. The trial court further explained that both children had experienced insecurity, inconsistency, and drug abuse, and that they required permanence. The trial court did not believe that respondent could provide that permanence. As a result, the trial court did not clearly err by not addressing the best interests of the children individually. See id.
Finally, to the extent that respondent mentions that his parents sought and should have been granted a guardianship of the children, we reject this argument. As already discussed, the record does not support this contention, and, therefore, respondent has not demonstrated clear error occurred.
Affirmed.
/s/ Douglas B. Shapiro
/s/ Deborah A. Servitto
/s/ Anica Letica