Opinion
No. 349142 No. 349143
01-30-2020
In re X. D. BERRY, Minor.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Wayne Circuit Court Family Division
LC No. 15-519010-NA Before: METER, P.J., and FORT HOOD and REDFORD, JJ. PER CURIAM.
In these consolidated appeals, respondents appeal as of right the trial court's order terminating their parental rights to their minor child under MCL 712A.19b(3)(c)(i), (g), and (j). We affirm.
I. FACTUAL BACKGROUND
This case arises out of a domestically violent relationship between respondent parents, respondent-father's repeated incarceration, and respondent-mother's homelessness and mental-health issues. In March 2017, respondents entered pleas of admission to enable the trial court to exercise jurisdiction over the child. Respondent-mother admitted that (1) she did not have housing, (2) her only income consisted of social security benefits which were insufficient to support the child, (3) she had a previous history with Child Protective Services for which she received services, (4) she had been diagnosed with depression, anxiety, and bipolar disorder, but she had not been consistently taking her prescribed medication, (5) she failed to consistently attend counseling for her mental health, and (6) when she took her medication or attended counseling, she was prone to angry outbursts including when in the presence of the child. Respondent-father admitted that (1) he was currently incarcerated and his earliest release date was in May 2018, (2) he never provided support for the child, and (3) his incarceration prevented him from providing the child proper care.
The Department of Health and Human Services (DHHS) prepared a parent-agency treatment plan (PATP) and the trial court ordered services largely consistent with that plan. The trial court ordered respondent-father to participate in parenting classes—if they were available at his prison facility—and to do whatever else he reasonably could to expedite his release and to create and maintain a bond with the minor child. The trial court ordered respondent-mother to participate in infant mental health (IMH) services, individual counseling, undergo an updated psychological and psychiatric evaluation if not already on file, obtain suitable housing and a suitable form of income (which could include public assistance), maintain contact with the foster care worker, visit the child, and attend all court hearings. Respondents made no objection to the PATP, nor did they request any accommodations under the Americans with Disabilities Act (ADA), 42 USC 12101 et seq., or any additional services. Following adjudication, the trial court set reunification as the permanency goal.
At a review hearing in June 2017, petitioner and the child's lawyer-guardian ad litem (LGAL) moved that respondent-mother be ordered to participate in substance abuse treatment and drug screens, but her attorney objected, arguing that there was not "any reason . . . to add more to her treatment plan" and that substance abuse services should be made available to her if she chose to engage in them, not forced upon her. The trial court adopted the approach urged by respondent-mother's attorney.
As of the February 20, 2018 review hearing, the child did very well in his placement with a maternal uncle. Respondent-mother remained homeless, stopped visiting the child, had been arrested and briefly jailed for a probation violation, her participation in individual counseling and IMH services was "sporadic," she had been difficult for caseworkers to contact for drug screens, and she had failed two drug screens, testing positive for marijuana once and opiates on another occasion. Although respondent-father completed several classes in prison, he had been terminated from a prison parenting program for lack of participation, and he failed to maintain regular telephone or mail contact with the child. When asked whether any additional services might benefit respondent-mother, the caseworker indicated that she had already referred her for assignment of a parent partner to help her benefit from services. The trial court ordered petitioner to refer respondent-mother for a parent partner. Despite the lack of progress, because the child remained in a good placement, before changing the permanency plan, the trial court expressed willingness to give respondent-mother more time and to await respondent-father's pending release so that he could receive additional services. The trial court asked respondent-mother if she required any service that she was not already receiving, to which she replied that there was not.
Respondent-mother failed to attend the May 16, 2018 review hearing. Despite being paroled around May 2, 2018, respondent-father also failed to attend. A caseworker testified that respondent-mother's therapist reported that she failed to make any progress in therapy and only attended three sessions. As a result, she faced having her individual counseling services terminated, but the caseworker prevented that from happening. Respondent-mother also failed to comply with drug screens, failed to timely fill her prescriptions, lacked employment, and remained homeless.
According to a police report, respondent-mother reported that sometime in July 2018, a domestic violence incident occurred between respondents during which respondent-father broke one of respondent-mother's ribs. She did not immediately report the July 2018 incident to authorities, but revealed this incident several months later, following another domestic assault.
Respondents both failed to attend the September 4, 2018 review hearing, although the father's assigned "parent partner" attended. Respondent-mother's counsel could not explain her absence. A caseworker reported that respondent-father claimed to be "under the weather" and that respondent-mother, who had recently been kicked out of the homeless shelter where she stayed, stated that she could not attend because of lack of transportation despite having been offered bus tickets. Respondent-mother had not visited the child since sometime during July 2018 because "too much friction" existed between her and the maternal uncle. When caseworkers offered to facilitate visits at the agency, respondent-mother declined. Respondent-father "barely" participated in IMH services, lost his job, and lacked suitable housing. He failed to visit the child and claimed that he lacked transportation. The caseworker, however, offered him bus tickets but he declined.
The maternal uncle, in the meantime, expressed his desire to adopt the child. Given how well the child did in his placement with the uncle, and that respondents did not "appear" to be "capable or perhaps even interested" in providing permanency and stability for the child, the LGAL argued in favor of terminating respondent-parents' parental rights. Consistent with the LGAL's recommendation, the trial court ordered petitioner to file a supplemental petition seeking termination, but the court also ordered petitioner to continue providing services to respondent-father in the interim to enable him to engage in services as a way to demonstrate his commitment to reunification.
On November 10, 2018, respondent-mother reported that respondent-father assaulted her during the early morning hours of that day. She reported that the two had been at a house "consuming intoxicants when an argument between the both of them occurred," and respondent-father "became very upset." He "slammed her onto a bed and began choking her," bit her arm, "and punched her one time in the head." An officer observed a large fresh bite mark on her arm. Respondent-mother informed the police that it was not the first time that respondent-father assaulted her and she indicated that she would cooperate with the prosecution. Respondent-mother reported another domestic assault by respondent-father in December 2018. Police arrested respondent-father and charged him with several parole violations. Respondent-mother attended the parole violation hearing and testified against respondent-father who entered a plea agreement under which he returned to prison.
Respondent-father testified that he bit respondent-mother in self-defense while trying to get her to drop a knife after she stabbed him.
The trial court held the termination hearing in February 2019. Respondent-father participated by telephone. Respondent-mother failed to attend and her attorney had not heard from her nor knew her whereabouts. The caseworker received a text message from respondent-mother that morning stating that her father was in the hospital and "she didn't have a ride," resulting in her inability to attend the termination hearing.
The caseworker testified that the then three-year-old child thrived in his placement with the maternal uncle, and he had, "at best," a "minimal" bond with either respondent. The child referred to the uncle as "Dad." The caseworker admitted that she had only discussed the possibility of adoption with the uncle, believing that the child was likely "too young . . . to do a guardianship[.]"
The LGAL informed the court that he had discussed the possibility of a guardianship with the uncle once, but their most recent conversations had focused exclusively on the possibility of adoption.
The caseworker testified that respondent-mother inconsistently participated in services made available to her. Since the child's removal, respondent-mother had been referred for parenting classes on three occasions. Although the caseworker frequently met with and emphasized to her the importance to engage and benefit from services, respondent-mother failed to undergo the initial assessment, and services were ultimately terminated because of her lack of attendance. Respondent-mother's individual therapy was terminated because she failed to cooperate.
During the pendency of the trial court proceedings, respondent-mother hospitalized herself on several occasions, admitting "that she had suicidal ideations on one occasion," and "homicidal ideations on another." Although the IMH therapist worked diligently to get respondent-mother to engage in IMH services and frequently provided her transportation, respondent-mother attended inconsistently. The IMH therapist opined that respondent-mother's untreated mental-health issues interfered with her ability to parent effectively.
Respondent-mother also failed to comply with the substance abuse services provided to her and she missed 55 of the 58 ordered drug and alcohol screens. She excused her conduct by claiming either that she lacked transportation or that "she felt she didn't need to take screens[.]" Respondent-mother went to different cities making it difficult for caseworkers to stay in contact with her and verify her attendance at services. She sporadically visited the child. She remained homeless and lacked employment. Her sole source of income was supplemental social security income.
The caseworker indicated that respondent-father inconsistently visited the child and ultimately failed to maintain contact with caseworkers, obtain suitable housing, and maintain employment. He inconsistently attended IMH therapy. His parent partner reported that he had poor "follow through." The caseworker opined that termination of both respondent-parents' parental rights served the child's best interests.
Respondent-father testified that, for his parole violations, he had been sentenced to a 90-day "non-fixed date" program, and he was uncertain exactly when that program would begin, but he would be paroled again 30 days after completing it. He had enrolled in "two self-help groups" after he returned to prison. He attempted to secure a personal protection order against respondent-mother who continually contacted him in prison.
Respondent-father stated that following his parole, the maternal uncle afforded him numerous unsupervised overnight visits with the minor child which occurred "every weekend" until August 2018 without court authorization. He claimed that those visits went well. After he lost his job, however, he had been forced to return his leased car because he could not afford the payments. Thereafter, the uncle stopped the unsupervised visits. He stated that he was unable to get to the agency for supervised visits. Although he became incarcerated again, he still planned to fight for reunification with his son. Respondent-father also indicated that his two sisters indicated that they would be willing to either adopt the child or care for him until respondent-father earned release from prison.
The trial court found that clear and convincing evidence established statutory grounds for terminating the parental rights of both respondent-parents under MCL 712A.19b(3)(c)(i), (g), and (j). The trial court also found that termination served the child's best interests. These appeals ensued.
II. ANALYSIS
A. REASONABLE EFFORTS
Both respondents argue that the trial court clearly erred by finding that petitioner made reasonable efforts to rectify the conditions that led to the child's removal. We disagree.
We review for clear error a trial court's findings whether reasonable efforts were made to achieve reunification. MCR 3.977(K); In re Fried, 266 Mich App 535, 542; 702 NW2d 192 (2005). Because respondents first challenged the sufficiency of the services they were offered in their closing arguments at the termination hearing, they failed to preserve it. See In re Frey, 297 Mich App 242, 247; 824 NW2d 569 (2012); In re Terry, 240 Mich App 14, 27; 610 NW2d 563 (2000) ("The time for asserting the need for accommodation in services is when the court adopts a service plan, not at the time of a dispositional hearing to terminate parental rights."). We review for plain error this unpreserved issue. In re Ferranti, 504 Mich 1, 29; 934 NW2d 610 (2019). 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 or seriously affected the fairness, integrity, or public reputation of the proceedings. Id. (citations omitted). The third element "generally requires a showing of prejudice, i.e., that the error affected the outcome of the lower court proceedings." People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999).
The DHHS "has an affirmative duty to make reasonable efforts to reunify a family before seeking termination of parental rights." In re Hicks, 500 Mich 79, 85; 893 NW2d 637 (2017). Reasonable efforts by the DHHS must also comply with the ADA, meaning that the DHHS must "modify its standard procedures in ways that are reasonably necessary to accommodate a disability under the ADA." Id. at 86. In In re Hicks, however, our Supreme Court clarified that the DHHS "cannot accommodate a disability of which it is unaware." Id. at 87. The DHHS must be informed of the disability and the need for an accommodation. Id.
Respondent-mother argues essentially that the DHHS denied her reasonable accommodations in violation of the ADA by not assisting her enough with her service plan. This Court has indicated that such argument must be raised "either when a service plan is adopted or soon afterward," and it cannot be asserted for the first time
at a dispositional hearing regarding whether to terminate . . . parental rights. In such a case, [the respondent's] sole remedy is to commence a separate action for
discrimination under the ADA. At the dispositional hearing, the family court's task is to determine, as a question of fact, whether petitioner made reasonable efforts to reunite the family, without reference to the ADA. [In re Terry, 240 Mich App at 26.]
In In re Hicks/Brown, 500 Mich at 89 & n 8, our Supreme Court indicated that it was "skeptical of this categorical rule" from In re Terry, which this Court had consistently followed. Our Supreme Court, however, declined to rule on the issue because it was not properly before the Court. Therefore, we conclude that the relevant rule from In re Terry remains binding here under MCR 7.215(J). See In re Medina, 317 Mich App 219, 230; 894 NW2d 653 (2016) (noting that "under MCR 7.215(J)(1), this Court is bound to follow the rule of law established by its prior published opinions so long as those opinions were 'issued on or after November 1, 1990,' and have 'not been reversed or modified by the Supreme Court, or by a special panel of the Court of Appeals.' ").
In this case, respondent-mother first argued that she had been afforded inadequate services at the termination hearing. She never made a request for accommodations under the ADA during the lower court proceedings or argued that petitioner failed to reasonably accommodate her. Consequently, she is precluded from challenging the termination of her parental rights on that basis here. See In re Terry, 240 Mich App at 26. See also Hostettler v College of Wooster, 895 F3d 844, 857 (CA 6, 2018) (noting that the duty to provide reasonable accommodations under the ADA arises in response to a request for accommodations). Further, the record in this case does not support respondent-mother's contention. The trial court ordered respondent-mother to participate in IMH services, individual counseling, and undergo an updated psychological and psychiatric evaluation. The IMH therapist worked diligently to get respondent-mother to engage in IMH services and frequently provided her transportation. Nevertheless, respondent-mother attended inconsistently. The record reflects that respondent-mother had mental health issues, but despite being provided services, she failed to take personal responsibility to engage in and benefit from them.
Moving to the main substance of respondents' arguments, respondents concede that they were offered services, but they argue that petitioner should have provided more, plus assistance aimed at ensuring that they attended and benefited from services. While it is true that petitioner "has a responsibility to expend reasonable efforts to provide services to secure reunification, there exists a commensurate responsibility on the part of respondents to participate in the services that are offered." In re Frey, 297 Mich App at 248. A determination of what services are "reasonable" depends on the unique factual circumstances of the case, including the degree of participation and benefit that the given respondent has shown to the services already offered. The record in this case provides substantial evidence of respondent-mother's nonparticipation in services and the trial court proceedings in general; which she rarely attended. While she complained of a lack of transportation, evidence established that caseworkers frequently provided her with transportation and that she turned down a caseworker's offer to provide her bus passes. Her communication with caseworkers, relatives, and her own attorney was so deficient that, by the time of the termination hearing, she had to be served with notice of the hearing via publication.
After caseworkers provided respondent-mother with help applying for housing subsidies, she went from the Detroit area to Jackson, Michigan to try to obtain housing, but she remained homeless which made it extremely difficult for her caseworkers in Wayne County to assist her. Although mental-health services, IMH therapy, and services to assist with her substance abuse were provided to respondent-mother, she often failed to attend them, even when offered transportation assistance. She delayed substance abuse treatment by objecting when petitioner requested that respondent-mother be ordered to engage in such treatment. Indeed, during the February 20, 2018 review hearing, the last hearing that respondent-mother attended, when the trial court asked her whether she needed any additional service, she declined any. The record reflects that petitioner made reasonable efforts under the circumstances to reunify respondent-mother with the child. Given her lack of participation in the services offered and her refusal to acknowledge her need to participate in the required services, we find no clear error in the trial court's finding that petitioner made reasonable efforts to rectify the conditions that led to removal and to reunify respondent-mother with the child.
We reach the same conclusion regarding the trial court's findings concerning respondent-father. A respondent's participation in classes while incarcerated can satisfy the same objectives as services offered outside the correctional environment. In re Mason, 486 Mich 142, 162-163; 782 NW2d 747 (2010). In this case, respondent-father completed numerous classes in prison before his original parole. Thereafter, petitioner offered him services, including IMH therapy and a parent partner. After he lost his leased car, petitioner offered respondent-father bus tickets for transportation, but he declined. Later he returned to prison for parole violations where he signed up for support groups. Respondent-father fails to specify what services, exactly, petitioner could or should have offered him but did not. We are unaware of any additional services that might have been offered under the circumstances that might have benefited respondent-father. We are not definitely and firmly convinced that the trial court made a mistake by finding that petitioner made reasonable efforts to reunify respondent-father with the child.
B. STATUTORY GROUNDS
Respondent-mother argues that insufficient evidence existed to support the statutory grounds for termination cited by the trial court. We disagree.
We review "for clear error a trial court's factual findings as well as its ultimate determination that a statutory ground for termination of parental rights has been proved by clear and convincing evidence." MCR 3.977(K); In re Mason, 486 Mich at 152 (citation omitted). "A finding is clearly erroneous if the reviewing court is left with a definite and firm conviction that a mistake has been made," with the reviewing court "defer[ring] to the special ability of the trial court to judge the credibility of witnesses." In re LaFrance, 306 Mich App 713, 723; 858 NW2d 143 (2014).
"To terminate parental rights, the trial court must find that at least one of the statutory grounds for termination in MCL 712A.19b(3) has been proved by clear and convincing evidence." In re Ellis, 294 Mich App 30, 32; 817 NW2d 111 (2011). Evidence is clear and convincing if it
produces in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established, evidence so clear, direct and weighty and convincing as to enable the factfinder to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue. . . . Evidence may be uncontroverted, and yet not be clear and convincing. . . . Conversely, evidence may be clear and convincing despite the fact that it has been contradicted. [In re Martin, 450 Mich 204, 227; 538 NW2d 399 (1995) (quotation marks, citation, and brackets omitted.]
The record reflects that clear and convincing evidence established grounds under MCL 712A.19b(3)(c)(i) for termination of respondent-mother's parental rights. "This statutory ground exists when the conditions that brought the children into foster care continue to exist despite time to make changes and the opportunity to take advantage of a variety of services[.]" In re White, 303 Mich App 701, 710; 846 NW2d 61 (2014) (quotation marks and citation omitted). In this case, more than 182 days elapsed between entry of the trial court's first dispositional order, in March 2017, and the trial court's termination of respondent-mother's parental rights in February 2019. The conditions that led to adjudication involved respondent-mother's inability to provide proper care for the child as a result of her homelessness, lack of adequate income, lack of parenting skills, and mental-health issues. At the time of termination, evidence established that respondent-mother failed to progress during the pendency of this case. She failed to actively engage in services and refused to attend court proceedings. She remained homeless and failed to benefit from services meant to address the conditions that led to the adjudication. She failed to attend those services and failed to visit her child. Given the documented lack of progress, we are not definitely and firmly convinced that the trial court made a mistake when it found that no reasonable likelihood existed that the conditions that led to the adjudication would be rectified by respondent-mother within a reasonable time considering the child's age. See In re White, 303 Mich App at 710 ("A parent's failure to participate in and benefit from a service plan is evidence that the parent will not be able to provide a child proper care and custody."). Therefore, the trial court did not clearly err by finding that clear and convincing evidence established grounds for termination of respondent-mother's parental rights under MCL 712A.19b(3)(c)(i). Because we conclude that the trial court did not clearly err by finding one statutory ground for termination, we need not address the additional grounds. In re HRC, 286 Mich App 444, 461; 781 NW2d 105 (2009).
C. BEST INTERESTS
Both respondents argue that the trial court clearly erred by finding that termination of their parental rights served the child's best interests. We disagree.
MCL 712A.19b(5) provides, "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." We review the trial court's best-interests determination for clear error. In re Medina, 317 Mich App at 236.
As explained in In re Medina, 317 Mich App at 237:
Although a reviewing court must remain cognizant that the fundamental liberty interest of natural parents in the care, custody, and management of their children does not evaporate simply because they have not been model parents or have lost temporary custody of their children to the State, at the best-interest stage, the child's interest in a normal family home is superior to any interest the parent has. Therefore, once a statutory ground for termination has been established by clear and convincing evidence, a preponderance of the evidence can establish that termination is in the best interests of the child. [Quotation marks, citations, and brackets omitted.]"In making its best-interest determination, the trial court may consider the whole record, including evidence introduced by any party." Id. (quotation marks and citation omitted).
[T]he court should consider a wide variety of factors that may 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. The trial court may also consider a parent's history of domestic violence, the parent's compliance with his or her case service plan, the parent's visitation history with the child, the children's well-being while in care, and the possibility of adoption. [In re White, 303 Mich App at 713-714.]
"[B]ecause 'a child's placement with relatives weighs against termination under MCL 712A.19a(6)(a),' 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 Olive/Metts, 297 Mich App 35, 43; 823 NW2d 144 (2012), quoting In re Mason, 486 Mich at 164. Even so, a trial court "may terminate parental rights in lieu of placement with relatives if it finds that termination is in the child's best interests." In re Olive/Metts, 297 Mich App at 43. "A trial court's failure to explicitly address whether termination is appropriate in light of the children's placement with relatives renders the factual record inadequate to make a best-interest determination and requires reversal." Id.
The pertinent statutory language construed by In re Mason has been moved, by amendment, to MCL 712A.19a(8)(a) (providing that, even when it would otherwise be appropriate for a trial court to order petitioner to initiate proceedings to terminate parental rights, the court need not do so if the minor child "is being cared for by relatives." For purposes of MCL 712A.19a(8)(a), the maternal uncle qualifies as the child's "relative." See MCL 712A.13a(1)(j) (defining "relative" as, in relevant part, "an individual who is at least 18 years of age and related to the child by blood, marriage, or adoption, as . . . uncle").
In this case, the trial court considered the child's placement with the maternal uncle. The court also considered the possibility that there might be other relatives, such as the two paternal aunts respondent-father identified at the termination hearing, who were capable of providing long-term care for the child. Nevertheless, the trial court reasoned that termination—not a guardianship—served the child's best interests because of his age, respondent-parents' lack of involvement, the "risk of harm" respondents posed to the child, the lack of benefit the child would receive from a continued relationship with them, and the fact that a guardianship would not provide the same level of stability and permanency.
In this case, the trial court did not clearly err in its best-interests determination. In some cases, a long-term guardianship with relatives may be rendered impracticable by the very circumstances that have led to the termination proceedings. See, e.g., In re Gonzales/Martinez, 310 Mich App 426, 435; 871 NW2d 868 (2015). In this instance, evidence established that ongoing animosity existed between the maternal uncle and both respondents. Moreover, even assuming that the uncle or one of the paternal aunts would have been amenable to a guardianship, the trial court did not clearly err by finding that termination would better serve the child's interests. The record reflects that the child strongly bonded with the maternal uncle, so much so that the child referred to him as "Dad." The uncle is a high school teacher and coaches multiple sports. He provided the child a consistent parental figure and the kind of stability that respondents were unable to provide and likely would never be able to do so within a reasonable time.
The record reflects that respondent-mother lacked housing and income and made no progress toward achieving stability in her life to enable her to provide for the child despite the services provided to her. She failed to consistently visit the child and establish a meaningful bond. Respondent-father's incarceration limited his ability to have a meaningful bond with the child. Further, when able, he did not visit the child. The record reflects that the child barely knows him. Respondent-parents' history of domestic violence establishes that their conduct posed a risk of harm to the child if ever returned to their care and custody. Their failures to engage in and benefit from services favored termination. The record establishes that, during the two-year pendency of the proceedings, neither respondent-parent demonstrated that they benefited from services provided to them. Respondent-mother failed to meaningfully participate in services. Respondent-father participated while incarcerated but failed to benefit. The same problems plagued respondent-parents and they each failed to take responsibility.
Under a long-term guardianship with reunification as the ultimate goal, the child would have continued to bond with the uncle, only to face the possibility that some day in the future, he might be removed from his home. Termination, however, afforded the child stability and permanency in a relative placement where he thrived. The record reflects that the uncle had the ability to shield the child from the emotional trauma that would likely result from the child's further relationship with respondents. The record does not indicate that respondent-parents could break their respective patterns of criminality, incarceration, homelessness, mental illness, and substance abuse. A preponderance of the evidence in this case establishes that termination served the child's best interests. Therefore, the trial court did not err by terminating respondent-parents' respective parental rights.
Affirmed.
/s/ Patrick M. Meter
/s/ Karen M. Fort Hood
/s/ James Robert Redford