Opinion
359206 359207
08-11-2022
In re BLACK/DOCTOR, Minors.
UNPUBLISHED
Wayne Circuit Court Family Division LC No. 2019-001961-NA
Before: Sawyer, P.J., and Shapiro and Redford, JJ.
Per Curiam.
In these consolidated appeals, respondent-parents appeal as of right the trial court's order terminating their respective parental rights to minor children, AB, JB, and ND, under MCL 712A.19b(3)(c)(i) (the conditions that led to adjudication continue to exist) and (j) (the child is reasonably likely to be harmed if returned to the parent's home). We affirm.
I. BACKGROUND
In October 2019 the Department of Health and Human Services (DHHS) filed a petition alleging: (1) respondent-mother had an extensive history with Child Protective Services (CPS), (2) respondents failed to provide a suitable home for the children, and (3) respondents failed to properly supervise the children. DHHS also alleged that respondent-mother's marijuana use "prevent[ed] her from adequately providing for the children." DHHS requested that the trial court authorize the petition, remove the children from respondents' care and custody, and exercise jurisdiction. After a preliminary hearing, the trial court authorized the petition and placed the children in foster care and gave DHHS discretion whether to provide respondents visits with the children.
In December 2019, the trial court conducted an adjudication hearing. After hearing testimony from CPS specialists and respondent-mother, the trial court exercised jurisdiction and ordered that reasonable efforts toward reunification be made. The court also held the initial dispositional hearing in December 2019. Respondents were ordered to comply with their respective case service plans which required them to submit to psychological assessments and to comply with and benefit from (1) parenting classes, (2) mental health therapy, and (3) services to address substance abuse, including submitting to random drug screens. Respondents were also ordered to obtain and maintain suitable housing and legal sources of income, attend visitations with the children, and maintain contact with the caseworker. Respondents, however, failed to benefit from services. They each were repeatedly terminated from services for failing to comply, each tested positive for illicit substances, and each failed to consistently attend visits with the children. Respondents also failed to obtain and maintain suitable housing and legal sources of income. In July 2021, DHHS filed a supplemental petition for termination of respondents' parental rights. After a lengthy termination hearing, the trial court found that reasonable efforts toward reunification were made, clear and convincing evidence established grounds for termination under MCL 712A.19b(3)(c)(i) and (j), and that termination of respondents' respective parental rights served the children's best interests. These appeals followed.
II. REASONABLE EFFORTS
Respondents argue the order terminating their parental rights must be reversed because DHHS failed to make reasonable efforts toward reunification. We disagree.
A. RESPONDENT-MOTHER
Respondent-mother argues DHHS failed to provide her with sufficient assistance to address her issues with employment, housing, and complying with the case service plan. We conclude respondent-mother waived appellate review of this issue.
During closing arguments at the August 30, 2021 termination hearing, counsel for respondent-mother indicated he could not argue that the caseworker provided inadequate services to respondent-mother because the worker made "multiple referrals" and "tried to work with" respondent-mother during the proceedings. By conceding that referrals and appropriate services were provided, respondent-mother's counsel effectively waived any challenge to the trial court's finding that reasonable efforts were made. Hodge v Parks, 303 Mich.App. 552, 556; 844 N.W.2d 189 (2014) (noting waiver occurs when a party stipulates to a matter before the trial court). Consequently, having been waived, we decline to address respondent-mother's reasonable efforts argument. Id.; see also In re Hudson, 294 Mich.App. 261, 264; 817 N.W.2d 115 (2011) ("Respondent may not assign as error on appeal something that she deemed proper in the lower court because allowing her to do so would permit respondent to harbor error as an appellate parachute.").
Nonetheless, to the extent we have considered the argument, we conclude it is entirely without merit given the record evidence.
B. RESPONDENT-FATHER
Respondent-father argues DHHS failed to make reasonable efforts to address his substance abuse. We disagree.
1. PRESERVATION AND STANDARD OF REVIEW
"In order to preserve an argument that petitioner failed to provide adequate services[,] the respondent must object or indicate that the services provided . . . were somehow inadequate. . . ." In re Atchley, __Mich App__, __; __ N.W.2d (2022) (Docket Nos. 358502 and 358503); slip op at 2 (quotation marks and citation omitted; alteration in original). In this case, respondent-father did not argue that the initial case service plan lacked adequacy and never argued during the proceedings that he required additional services to address his substance abuse. Because respondent-father did not challenge "the adequacy of the services being provided," this argument is unpreserved. Id. at __; slip op at 2. We therefore review for plain error affecting substantial rights. In re Pederson, 331 Mich.App. 445, 463; 951 N.W.2d 704 (2020). "Both this Court and our Supreme Court have applied the plain-error standard set forth in People v Carines, 460 Mich. 750; 597 N.W.2d 130 (1999), to unpreserved claims of error arising out of child-protective proceedings." In re Pederson, 331 Mich.App. at 463. The Carines test has four elements:
1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) . . . the plain error affected substantial rights . . . [, and 4)] once a defendant satisfies these three requirements, an appellate court must exercise its discretion in deciding whether to reverse. Reversal is warranted . . . when the plain, forfeited error . . . seriously affected the fairness, integrity or public reputation of judicial proceedings. . . . [Id. (quotation marks and citation omitted; alterations in original).]
"An error has affected a party's substantial rights when there is a showing of prejudice, i.e., that the error affected the outcome of the lower court proceedings." Id. (quotation marks and citations omitted).
2. ANALYSIS
Except under aggravating circumstances not present in this case, petitioner has a statutory duty to make "reasonable efforts to reunify the child and the family . . . ." MCL 712A.19a(2). This means petitioner "must create a service plan outlining the steps that both it and the parent will take to rectify the issues that led to court involvement and to achieve reunification." In re Hicks/Brown, 500 Mich. 79, 85-86; 893 N.W.2d 637 (2017). "While the [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. 242, 248; 824 N.W.2d 569 (2012).] This means a respondent-parent must both participate in services and "demonstrate that they sufficiently benefitted from the services provided." Id. [In re Atchley, __ Mich.App. at __; slip op at 3 (alterations in original).]
To address respondent-father's substance abuse issue, DHHS provided respondent-father with referrals for individual counseling, referrals for a psychological evaluation, and "information to do random drug screens via Averhealth. . . ." Respondent-father was instructed to call Averhealth on a daily basis to determine if he was required to submit to a substance screen.
While respondent-father completed the psychological evaluation, he failed to submit to a recommended psychiatric evaluation. Respondent-father also did not submit to any random substance screenings through Averhealth during the proceedings, despite being provided with bus passes to help him reach the testing location. Respondent-father failed to submit to 87 screenings despite being told that missed screens would be considered positive. The caseworker tested respondent-father eight times during the proceedings, and all of the tests were positive for marijuana. Respondent-father also tested positive for cocaine and alcohol once, and he appeared to be under the influence at times during visits with the children. Respondent-father did not start to consistently participate in counseling until the children were in care for a significant amount of time. While respondent-father argues on appeal that he should have been required to enter inpatient treatment so that he could have benefited from his case service plan, respondent-father never expressly acknowledged his issues with substance abuse during the proceedings, and never requested additional services to address his substance abuse. Importantly, while respondent-father testified at the August 30, 2021 termination hearing that he had not ingested drugs in six months, he still failed to comply with his case service plan.
Given respondent-father's failure to uphold his "commensurate responsibility" to engage in and benefit from the services offered by DHHS, see In re Frey, 297 Mich.App. at 248, we conclude that respondent-father would not have fared better if DHHS had offered other services, such as inpatient treatment, see In re Fried, 266 Mich.App. 535, 543; 702 N.W.2d 192 (2005). The trial court did not commit plain error affecting respondent-father's substantial rights when it determined DHHS made reasonable efforts to promote reunification.
III. STATUTORY GROUNDS
Respondents argue that the trial court clearly erred by finding clear and convincing evidence supporting termination under MCL 712A.19b(3)(c)(i) and (j). We disagree.
"We review for clear error the trial court's finding that there are statutory grounds for termination of a respondent's parental rights." In re Atchley, __Mich App at __; slip op at 5. "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 Moss, 301 Mich.App. 76, 80; 836 N.W.2d 182 (2013) (quotation marks and citation omitted). "To terminate 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." Id.
The trial court did not clearly err by finding statutory grounds for termination of respondents' parental rights under MCL 712A.19b(3)(c)(i), which provides in relevant part:
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:
(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 . . .
(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.
This Court has previously held a termination proper under (c)(i) where "the totality of the evidence amply support[ed] that [the respondent] had not accomplished any meaningful change in the conditions" that led to adjudication. See In re Williams, 286 Mich.App. 253, 272; 779 N.W.2d 286 (2009).
In this case, at the time of termination, "182 or more days" had "elapsed since the issuance of [the] initial dispositional order" respecting respondents. See MCL 712A.19b(3)(c). Further, the record establishes that respondents had not accomplished any meaningful change in the conditions that led to adjudication, i.e., unsuitable housing, neglect, and improper supervision. See MCL 712A.19b(3)(c)(i).
Respondents never demonstrated having obtained suitable housing or legal sources of income. While respondent-mother reported in December 2020 that she had obtained appropriate housing, she never permitted the caseworker to conduct a home assessment. At the time of termination, respondent-mother apparently stayed in other people's homes and lacked independent housing. While respondent-mother obtained employment at times during the proceedings, nothing confirmed if respondent-mother had employment or a legal source of income at the time of termination. Additionally, despite respondent-father's promises on August 30, 2021, he failed to submit verification of his employment and did not have independent housing at the time of termination.
Further, respondents failed to demonstrate improvement in their parenting abilities. They both failed to complete parenting classes despite being referred multiple times during the proceedings. They also missed multiple visits with the children. Respondent-mother sometimes lacked the ability to maintain control of the children during visits which required the caseworker to intervene. The caseworker believed respondent-mother's marijuana use, which respondent-mother failed to address during the proceedings, impacted her parenting abilities. Respondent-father sometimes slept on the floor during visits with the children, acted aggressively toward respondent-mother in the presence of the children, and sometimes appeared to be intoxicated. There is no indication that the children were bonded with respondent-father or viewed him as a parental figure at the time of termination. Clear and convincing evidence amply supports the trial court's finding that respondents had not accomplished any meaningful change in the conditions that led to adjudication despite being provided services. See In re Williams, 286 Mich.App. at 272.
The record also reflects that respondents would not be able to rectify their respective issues within a reasonable time considering the children's ages. See MCL 712A.19b(3)(c)(i). At the time of termination, the children were all less than six years old and had been out of respondents' care for nearly two years. Nothing in the record suggests that respondents would rectify their inability to properly care for the children within a reasonable time. Indeed, respondents demonstrated a complete lack of commitment during the proceedings, and respondent-father never took any responsibility for the children being taken into care. The children required permanency, and could not wait an indefinite period for respondents to improve. Clear and convincing evidence established that the conditions that led to adjudication continued to exist and no reasonable likelihood existed that respondents would rectify the conditions within a reasonable time. MCL 712A.19b(3)(c)(i). The trial court did not err.
Because termination was proper under (c)(i), we need not consider the additional ground on which the trial court based its decision. In re HRC, 286 Mich.App. 444, 461; 781 N.W.2d 105 (2009).
IV. BEST INTERESTS
Respondent-mother next argues that the trial court improperly found that termination of her parental rights served the children's best interests. We disagree.
"The trial court must order the parent's rights terminated if the Department has established a statutory ground for termination by clear and convincing evidence and it finds from a preponderance of the evidence on the whole record that termination is in the children's best interests." In re White, 303 Mich.App. 701, 713; 846 N.W.2d 61 (2014). We review the trial court's best-interest determination for clear error. Id. "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 Moss, 301 Mich.App. at 80 (quotation marks and citation omitted).
This Court focuses on the children-not the parents-when reviewing best interests. In Atchley, __Mich App at __; slip op at 7. When determining best interests,
the 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 . . . 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 (quotation marks and citations omitted).]
Respondent-mother argues that the trial court failed to appropriately consider her bond with the children. The record, however, establishes that JB had a minimal bond with respondent-mother. Indeed, JB was removed from her care when he was nine months old and placed with the same foster family for the duration of the proceedings which lasted nearly two years. JB bonded with his foster parents, who he referred to as "mama" and "dada." Although the record indicates that respondent-mother bonded with the children at times, the record also demonstrates that she inconsistently attended visitations and sometimes did not see the children for weeks at a time. The record reflects that the children expressed disappointment when respondent-mother did not attend visits. When respondent-mother attended, she sometimes could not manage all of the children,who did not view her as a parental figure. On one occasion, respondent-mother got into an argument with respondent-father in the presence of the children and used profanity. To the extent that respondent-mother shared a bond with the children at the time of termination, the record indicates the bond was not healthy for the children.
Respondent-mother's five older children were also involved in the proceedings. However, they are not subject to this appeal because they were placed with their legal fathers during the proceedings.
The parent-child bond is only one factor for the trial court to consider. See In re Olive/Metts, 297 Mich.App. 35, 41-42; 823 N.W.2d 144 (2012). Respondent-mother failed to comply with her case service plan, and sometimes struggled during visits with the children, which only occurred once each week for two hours. Respondent-mother consistently demonstrated a lack of commitment and an inability to provide stability and permanency for the children. As a result, respondent-mother was never permitted to have unsupervised visits. Meanwhile, the children were "thriving" in their placements, where they experienced stability and permanency.
As noted by respondent-mother, AB and ND were placed with their paternal grandmother at the time of termination. "A child's placement with relatives is a factor that the trial court is required to consider." In re Atchley, __Mich App at __; slip op at 7 (quotation marks and citation omitted). Indeed, "[p]lacement with a relative weighs against termination, but that fact is not dispositive given that 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. . . ." Id. at __; slip op at 7 (quotation marks and citation omitted). The referee who presided over the termination hearing expressly considered AB's and ND's placement with their paternal grandmother and nonetheless found termination served their best interests. The trial court appropriately adopted this finding which was not clearly erroneous because a guardianship would not afford AB and ND the necessary stability and permanency. Given respondent-mother's failure to make meaningful progress and the paternal grandmother's willingness to provide permanency, the trial court correctly concluded that termination served AB's and ND's best interests. Although termination resulted in AB and ND being separated from JB, termination nonetheless served the children's best interests because they were "thriving" in their placements and achieving the stability that they required which respondent-mother could not provide. Moreover, at the time of termination, the children had already been living in separate homes for nearly two years as a result of respondent-mother's lack of commitment. Accordingly, the trial court did not clearly err by finding termination of respondent-mother's parental rights served the children's best interests.
Affirmed.
Douglas B. Shapiro, J. (concurring).
I concur fully with the majority's analysis except that I would not deem the issue concerning reasonable efforts to be waived. However, as I would find that reasonable efforts were made, I concur in affirming the termination.