Opinion
No. 341882
09-18-2018
In re Z. D. BELL, Minor.
UNPUBLISHED Oakland Circuit Court Family Division
LC No. 13-807641-NA Before: M. J. KELLY, P.J., and MARKEY and FORT HOOD, JJ. PER CURIAM.
Petitioners filed a private petition requesting that respondent-mother's parental rights over her daughter, ZB, be terminated at the initial disposition. The petition alleged that jurisdiction was proper under MCL 712A.2(b)(1), (5), and (6). The petition further alleged that termination was proper pursuant to the statutory grounds outlined under MCL 712A.19b(3)(a)(ii), (c)(i), (e), (f), (j), and (k). The trial court entered an order terminating respondent-mother's parental rights, finding that termination was supported by the grounds outlined under MCL 712A.19b(3)(a)(ii), (c)(i), (e), (f), and (j), and also finding that termination was in the best interests of the child. Respondent-mother appeals by delayed leave granted. We affirm.
Although MCL 712A.2 was amended by 2018 PA 58, effective June 12, 2018, the amendments did not affect MCL 712A.2(b)(1), (5), or (6).
Although MCL 712A.19b(3) was amended by 2018 PA 58, effective June 12, 2018, the amendments did not alter MCL 712A.19b(3)(a)(ii), (c)(i), (e), (f)(i) and (ii), or (j).
On March 9, 2018, this Court entered an order stating that to clear any potential jurisdictional issues in this Court and allow respondent the opportunity to appeal the order terminating her parental rights, her claim of appeal would be treated in the same manner as a delayed application for leave to appeal and was granted. In re Z D Bell Minor, unpublished order of the Court of Appeals, entered March 9, 2018 (Docket No. 341882).
I. FACTS
In April 2013, the Department of Health and Human Services (DHHS) filed a petition requesting that the trial court take jurisdiction over ZB, under a year old at the time, and issue an order removing her from respondent-mother's care. The petition alleged that in 2004, respondent-mother was ordered to complete a psychological evaluation after she made threats to drop her older daughter, GB, who was six months old at the time, on her head. Respondent-mother never completed the psychological evaluation, resulting in her inability to visit GB. Sole physical and legal custody of GB was entrusted to her father.
With regard to ZB, the petition further alleged that respondent-mother (1) suffered from postpartum depression after ZB was born; (2) left ZB on the porch of a known drug house without knocking or checking to see if anyone was available to care for her; (3) made repeated assertions that she did not want the child, wanted her parental rights to the child to be terminated, wanted to give the child up for adoption, and was concerned that she would hurt the child if she was left in her care; and (4) made statements to ZB's paternal relatives that if ZB's father did not take the child, respondent-mother would harm her. The child's legal father was in police custody based on allegations that he had assaulted respondent-mother in August 2012. The trial court authorized the petition, and ZB was placed with a paternal relative. Prolonged relative placement was unsuccessful, however. As a result, beginning in approximately August 2013, ZB was placed in foster care with petitioners.
The legal father's parental rights were terminated in the same order in which respondent-mother's parental rights were terminated. However, the legal father's termination is not at issue in this appeal.
When petitioners first became involved in ZB's life, respondent-mother lived approximately 15 minutes away with her boyfriend, Willie Abrams, and her son, MB. Abrams assaulted respondent-mother during their relationship, engaged in physical confrontations with MB, and stole respondent-mother's car on one occasion, prompting her to call the police and stay at a neighbor's house. Eventually, respondent-mother moved to a location approximately 20 minutes away from petitioners' home. Respondent-mother did not prepare a bedroom for ZB in this residence. Respondent-mother owned a working vehicle and was gainfully employed at a hospital, first as a housekeeper, then as a surgical technician. She typically worked from 3:00 p.m. to 11:30 p.m. and alternating weekends.
By December 2013, respondent-mother made significant progress in counseling and parenting time. She continued to make positive strides toward reunification until, in March 2014, ZB was returned to respondent-mother's care based on respondent-mother's full compliance with in-home services. At the request of the DHHS, the jurisdiction of the trial court was terminated on June 10, 2014, and the case was closed. Within a matter of days, on June 12, 2014, respondent-mother contacted petitioners and told them that caring for the child was more difficult than she expected and that ZB missed petitioners. Respondent-mother further stated that she felt unable to parent the child, and she brought up the possibility of petitioners adopting ZB. Petitioners determined that they were willing to formally adopt the child. That day, they arranged to pick up ZB from respondent-mother's home, and the child stayed with petitioners for two nights. After those two nights, ZB began staying with petitioners for lengthier durations until, by August or September 2014, the child was spending the majority of her time with petitioners. Petitioners' home was also occupied by their six-year-old biological daughter, BC. ZB was given a bedroom, clothes, a dresser, and toys at petitioners' home.
On May 5, 2015, the trial court entered an order appointing petitioners as ZB's full legal guardians. Respondent-mother did not oppose the guardianship. She did, however, allege that around the time of the appointment, petitioners began "possibly" denying her requests for parenting time. Respondent-mother never elaborated on these allegations, and no evidence was presented that petitioners ever denied her visitation requests except on one occasion when respondent-mother gave petitioners less than 24 hours' notice that she wanted to see ZB.
The parties came to an agreement that respondent-mother would have visitation with ZB (1) every other Saturday, beginning on May 16, 2015, (2) on respondent-mother's birthday, and (3) on the child's birthday. The agreement was memorialized in a court order. Petitioners offered respondent-mother extra visits during certain holidays, and respondent-mother accepted some of these invitations. Between May 2015 and September 2016, there were 38 court-ordered visitation days. In that span of time, including instances in which respondent-mother saw her daughter outside of the court-ordered parenting time, respondent-mother visited ZB a total of 12 times. Respondent-mother disagreed with this figure, but could not provide any additional dates on which she may have visited the child. Respondent-mother would occasionally call ZB or use FaceTime to communicate with the child. This occurred more than 20 times in 2015, and with similar frequency in 2016.
Between September 2014 and October 11, 2016, respondent-mother provided no financial support for ZB. Respondent-mother also failed, for the most part, to provide petitioners with a suitable wardrobe, toys, food, medical support, or tuition for the child. ZB was participating in soccer and gymnastics, but even though petitioners provided respondent-mother with a schedule of the child's games, meets, and classes, respondent-mother failed to attend any. Respondent-mother did not appear for any of ZB's class field trips or classroom parties, either.
ZB attended a tuition-based preschool for two years. --------
In early 2016—and on other previous occasions that petitioners could not recall—respondent-mother contacted petitioners and indicated that she "wanted to die." In late 2016, respondent-mother was convicted of operating a vehicle while intoxicated. At no time did respondent-mother seek custody of the child, although she occasionally threatened petitioners with attempts to terminate their guardianship when she became angry. One of petitioners' witnesses, a friend who had known petitioners since 2013 and had often interacted with them on a weekly basis, reported that ZB had demonstrated significant positive changes since coming under petitioners' care. Specifically, the witness stated that when she first met ZB, the child was shy, clingy, anxious, and unconfident. However, as time went on, ZB became strong, independent, joyful, confident, and social. ZB had developed a strong, familial bond with petitioners and their biological daughter. Indeed, petitioners treated ZB as if she were their own daughter. In the witness's opinion, if ZB were returned to respondent-mother's care, the result would be "[a]bsolute devastation."
On December 2, 2016, petitioners filed a private petition requesting that the trial court terminate respondent-mother's and the legal father's parental rights over ZB at the initial disposition hearing. The legal father did not contest the petition. A pretrial hearing was conducted in December 2016, during which the lawyer-guardian ad litem stated that the program that facilitated respondent-mother's supervised parenting time had closed out respondent-mother's case file when she continually failed to provide a written work schedule necessary to determine when visitation could be held. The trial court reaffirmed the visitation order, allowing respondent-mother supervised parenting time through the program so long as she provided the proper funds and pertinent schedule. Respondent-mother paid the outstanding balance on her account and attended a reorientation and intake meeting. During the meeting, however, respondent-mother demonstrated "abrasive, belligerent" conduct by repeatedly yelling at the staff. As a result, respondent-mother was informed that the program would no longer provide her with supervised parenting-time services.
A bench trial on the petition commenced in May 2017. In a written opinion issued on June 29, 2017, the trial court found, by a preponderance of the evidence, that it was appropriate to take jurisdiction of the child under MCL 712A.2(b)(1), (5), and (6). The trial court also found that the statutory grounds under MCL 712A.19b(3)(a)(ii), (c)(i), (e), (f), and (j) supported termination of respondent-mother's parental rights. The trial court did not find that factor (k) supported termination.
The trial court conducted a best-interests hearing in August and November 2017. During the hearing, the trial court noted that respondent-mother arrived late and was displaying troubling behavior. Concerned that respondent-mother was under the influence of alcohol or another controlled substance, the trial court requested that respondent-mother submit to a PBT test. Respondent-mother refused. Ultimately, the trial court found that termination of respondent-mother's parental rights was in ZB's best interests. The trial court entered an order terminating respondent-mother's parental rights to ZB.
II. STANDARD OF REVIEW
This Court reviews a trial court's decision to exercise jurisdiction over minors in termination proceedings "for clear error in light of the [trial] court's findings of fact." In re BZ Minors, 264 Mich App 286, 295; 690 NW2d 505 (2004). This Court also reviews a trial court's factual findings and ultimate determinations that the statutory grounds for termination of parental rights have been proven by clear and convincing evidence for clear error. In re Mason, 486 Mich 142, 152; 782 NW2d 747 (2010); MCR 3.977(K). Finally, a trial court's determination concerning a child's best interests is reviewed for clear error. In re Trejo Minors, 462 Mich 341, 356-357; 612 NW2d 407 (2000). "A finding is clearly erroneous if, although there is evidence to support it, we are left with a definite and firm conviction that a mistake has been made." In re Schadler, 315 Mich App 406, 408; 890 NW2d 676 (2016) (quotation marks and citation omitted). Whether it is in the best interests of the child to terminate a parent's rights to that child must be determined on the basis of the preponderance of the evidence. In re Moss, 301 Mich App 76, 90; 836 NW2d 182 (2013). When applying the principle that factual findings may not be set aside except for clear error, appellate courts are largely required to defer to the "special opportunity of the trial court to judge the credibility of the witnesses who appeared before it." In re Miller, 433 Mich 331, 337; 445 NW2d 161 (1989).
III. ANALYSIS
Respondent-mother argues that the trial court clearly erred (1) when it determined that it was appropriate to exercise jurisdiction over ZB pursuant to MCL 712A.2(b)(1), (5), and (6); (2) when it determined that the statutory factors under MCL 712A.19b(a)(ii), (c)(i), (e), (f), and (j) favored termination; and (3) when it held that termination was in the child's best interests.
A. JURISDICTION
"To properly exercise jurisdiction, the trial court must find that a statutory basis for such jurisdiction exists. In re BZ, 264 Mich App at 295. The trial court's findings in this regard must be supported by a preponderance of the evidence. Id.
While respondent-mother challenges the trial court's assumption of jurisdiction with respect to MCL 712A.2(b)(1), (5) and (6), we focus our analysis on whether the trial court properly exercised jurisdiction pursuant to MCL 712A.2(b)(6) and, for the reasons set forth subsequently in this opinion, conclude that it did. MCL 712A.2(b)(6) provides:
The family division of the circuit court has jurisdiction over a juvenile under the age of 18 who is found within the county:
(6) If the juvenile has a guardian under the estates and protected individuals code . . . , MCL 700.1101 to 700.8206, and the juvenile's parent meets both of the following criteria:
(A) The parent, having the ability to support or assist in supporting the juvenile, has failed or neglected, without good cause, to provide regular and substantial support for the juvenile for 2 years or more before the filing of the petition . . . . As used in this sub-subdivision, "neglect" means that term as defined in section 2 of the child abuse and neglect prevention act . . . , MCL 722.602.
(B) The parent, having the ability to visit, contact, or communicate with the juvenile, has regularly and substantially failed or neglected, without good cause, to do so for 2 years or more before the filing of the petition. As used in this sub-subdivision, "neglect" means that term as defined in section 2 of the child abuse and neglect prevention act . . . , MCL 722.602. [MCL 712A.2(b)(6).]
Turning first to subsection (A), the evidence presented supports a finding that, while respondent-mother may not have failed entirely to provide support for ZB, respondent-mother neglected to do so, see MCL 722.602(1)(d), for at least two years prior to the date petitioners filed their petition. The most recent petition in this case was filed on December 2, 2016. In approximately September 2014, ZB was spending the majority of her time with petitioners. While the child was in petitioners' care, respondent-mother offered no financial support, educational support, medical support, food, clothing, or toys. This was all despite the fact that respondent-mother was employed as a surgical technician and making a good living doing so. It has therefore been established that respondent-mother, "having the ability to support or assist in supporting the juvenile, has failed or neglected, without good cause, to provide regular and substantial support for the juvenile for 2 years or more before the filing of the petition . . . ." MCL 712A.2(b)(6)(A).
Turning to subsection (B), by September 2014, at the latest, respondent-mother had begun to stop visiting ZB. From approximately September 2014 until the petition was filed, respondent-mother rarely engaged in parenting time. In fact, respondent-mother visited ZB a total of 12 times between 2015 and 2016. Respondent-mother had a working vehicle and lived within 20 minutes of petitioners' residence. She offered no explanation as to why she failed to visit her daughter despite having the tools necessary to do so. Moreover, between 2015 and 2016, respondent-mother would call or use FaceTime to communicate with ZB only approximately 20 times per year. Under the evidence presented, respondent mother, "having the ability to visit, contact, or communicate with [ZB], has regularly and substantially failed or neglected, without good cause, to do so for 2 years or more before the filing of the petition." MCL 712A.2(b)(6)(B). Accordingly, the trial court did not clearly err when it exercised jurisdiction over the child in accordance with MCL 712A.2(b)(6). Having concluded that the trial court properly exercised jurisdiction in this case, we turn next to respondent-mother's challenge to the trial court's determination regarding the statutory grounds for termination of her parental rights.
B. STATUTORY GROUNDS FOR TERMINATION
To properly terminate a respondent's parental rights, "a trial court must find, by clear and convincing evidence that at least one statutory ground under MCL 712A.19b(3) has been established." Moss, 301 Mich App at 80.
While respondent-mother challenges the trial court's reliance on each statutory ground it cited in its order, we focus our analysis on the trial court's conclusion that grounds for termination of respondent's parental rights existed pursuant to MCL 712A.19b(3)(f). MCL 712A.19b(3)(f) provides:
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:
The child has a guardian under the estates and protected individuals code . . . , MCL 700.1101 to 700.8206, and both of the following have occurred:
(i) The parent, having the ability to support or assist in supporting the minor, has failed or neglected, without good cause, to provide regular and substantial support for the minor for a period of 2 years or more before the filing of the petition . . . .
(ii) The parent, having the ability to visit, contact, or communicate with the minor, has regularly and substantially failed or neglected, without good cause, to do so for a period of 2 years or more before the filing of the petition.
Respondent-mother asserts that the trial court erred when it held that termination was appropriate under subsection (f) because the two-year period preceding the filing of the petition had not passed. Respondent-mother is mistaken. The record evidence established that petitioners were lawfully appointed ZB's guardians on May 5, 2015. After September 2014, the point at which ZB had begun to live with petitioners full-time, respondent-mother largely failed to provide financial support, educational support, medical support, food, clothing, or even toys. Moreover, she visited the child a total of 12 times before the filing of the December 2, 2016 petition. Additionally, respondent-mother's argument that the two-year period preceding the filing of the petition commences only when the order of guardianship is entered is not supported by the plain language of MCL 712A.19b(3)(f). Accordingly, we are satisfied that termination was appropriate under subsection (f). Because only one statutory factor under MCL 712A.19b(3) need be established to warrant termination of a respondent's parental rights, see In re HRC, 286 Mich App 444, 461; 781 NW2d 105 (2009), further discussion of the additional statutory grounds that the trial court relied on to terminate respondent's parental rights is unnecessary.
C. BEST INTERESTS OF THE CHILD
Once a trial court finds that termination is appropriate under at least one of the statutory factors outlined under MCL 712A.19b(3), the trial court must find that termination is in the child's best interests before entering an order terminating a respondent's parental rights. MCL 712A.19b(5).
Respondent-mother first argues that the child's placement with her guardians is akin to placement with relatives, and, therefore, that the trial court erred when it did not expressly consider ZB's placement with petitioners. As an initial note, respondent-mother's argument is not accurate, as the trial court's analysis of ZB's best interests focused largely on the propriety of her placement with petitioners as opposed to placement back into respondent-mother's care. It is true that "[a] trial court's failure to explicitly address whether termination is appropriate in light of the [child's] placement with relatives renders the factual record inadequate to make a best-interest determination and requires reversal." In re Olive/Metts Minors, 297 Mich App 35, 43; 823 NW2d 144 (2012). However, respondent-mother does not cite any authority holding that a trial court must explicitly consider a child's placement with guardians when those guardians are not relatives of the child. Further, although a child's placement with relatives ordinarily weighs against termination, id., in this case, ZB's placement with petitioners is exactly the circumstance respondent-mother is challenging. It does not follow that ZB's placement with petitioners could weigh in respondent-mother's favor, as a placement with relatives ordinarily would under Olive/Metts. See id.
Respondent-mother next contends that the trial court erred when it found that the child needed permanency and stability when she already had permanency and stability under petitioners' care. Effectively, respondent-mother argues that ZB's interests in stability and permanency could be preserved without terminating respondent-mother's parental rights and by simply allowing the child to live in petitioners' care. Proper considerations in determining best interests include "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." Id. at 41-42 (emphasis added). In this case, as the trial court noted in its thorough and detailed written opinion, respondent-mother has spent a great deal of ZB's life demonstrating a lack of interest in parenting the child. Despite evidence that respondent-mother wanted to have her parental rights terminated or to put ZB up for adoption, she now resists the trial court's determination that such actions are, indeed, appropriate to facilitate the best interests of the child. However, it is not in the child's best interests to allow respondent-mother the opportunity to assail ZB's safe, stable, and permanent familial environment with petitioners at a future date.
Respondent-mother also argues that termination was improper because the lawyer-guardian ad litem's recommendations did not account for ZB's preference. Respondent-mother cites no authority in support of the proposition that a trial court must articulate its consideration of a child's preference in conducting a best-interests analysis. Moreover, a child's expression of his or her preferences may be overcome by evidence in support of termination. In re Powers Minors, 244 Mich App 111, 120; 624 NW2d 472 (2000). Regardless, the evidence established that ZB resisted interacting with respondent-mother in person and via phone calls or FaceTime communications after she was placed with petitioners. From this evidence, it is reasonable to conclude that ZB's preference was not to remain in respondent-mother's care.
Respondent-mother lastly argues that her parental bond with ZB warrants reversal of the trial court's order terminating respondent-mother's rights to her daughter. However, the child's bond with the parent is only one consideration in a best-interests analysis. See In re White, 303 Mich App 701, 713-714; 846 NW2d 61 (2014). Other relevant considerations include "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." Olive/Metts, 297 Mich App at 42.
In this case, as properly noted by the trial court, although respondent-mother had just received full care and custody of ZB in June 2014, she left the child in petitioners' full-time care beginning in August or September 2014. Respondent-mother then failed to visit the child more than 12 times over the course of two years. Moreover, although she has been gainfully employed as a surgical technician, respondent-mother has failed, for the most part, to provide any substantive financial support, educational support, medical support, food, clothing, or toys for her daughter in the two years preceding the trial court's order terminating her parental rights. Respondent-mother was previously involved with a violent man who physically abused her and her son and stole her vehicle. Indeed, so violent were his outbursts that respondent-mother was forced to involve the police and a neighbor. Respondent-mother has previously indicated that she "wanted to die," and she refused to submit to a PBT test at the best-interests hearing when the trial court expressed concern as to possible substance abuse. Further, ZB began as a shy, clingy, anxious, and unconfident child. However, as she spent time in petitioners' care, she blossomed into a strong, independent, joyful, confident, and social girl. Lastly, the evidence established that ZB was heavily bonded to petitioners and their biological daughter. ZB's bond with respondent-mother, on the other hand, was practically nonexistent. Indeed, a witness for petitioners opined that if ZB were returned to respondent-mother's care, the result would be "[a]bsolute devastation." No witnesses testified that respondent-mother had shared a close familial bond with ZB since the dispositional review hearing that took place in June 2014, just before the trial court terminated jurisdiction. Respondent-mother's only witness at the best-interests hearing testified that respondent-mother was a good mother, but admitted that she had not seen respondent-mother interact with ZB since 2015. In light of all this evidence weighing in favor of termination, we cannot say that the trial court erred when it held that termination of respondent-mother's parental rights over ZB was in the best interests of the child. Accordingly, the trial court did not clearly err when it determined that termination was in ZB's best interests.
Affirmed.
/s/ Michael J. Kelly
/s/ Jane E. Markey
/s/ Karen M. Fort Hood