Opinion
No. 344782
02-12-2019
In re E. J. BROWN, Minor.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Mason Circuit Court Family Division
LC No. 16-000059-NA Before: METER, P.J., and SAWYER and CAMERON, JJ. PER CURIAM.
Respondent-mother appeals as of right the trial court's order terminating her parental rights to the minor child, EJB, under MCL 712A.19b(3)(g) and (j). We affirm.
I. BACKGROUND
Respondent has a long history of substance abuse. Indeed respondent has seven children but, because of her substance abuse, does not have custody of any of them. Nevertheless, only respondent's youngest child, EJB, is at issue in these proceedings. EJB was born prematurely and, at birth, tested positive for methadone and oxycodone. Respondent also tested positive for these substances upon her admission to the hospital, despite not having a prescription for them. Shortly after EJB's birth, petitioner filed an original petition requesting termination of respondent's parental rights to the child. The trial court authorized the petition and concluded that, because petitioner's goal was termination, petitioner was not required to provide respondent with any reunification services.
At the termination trial, respondent testified that she had a 12-year history of substance abuse, which resulted in at least two criminal convictions. Respondent had been provided with rehabilitation services in the past, but had relapsed on multiple occasions—most recently while she was pregnant with EJB. Respondent also admitted to using methadone during a previous pregnancy.
Respondent stated that petitioner had provided her with housing assistance, counseling, and parenting support in the past. Respondent testified that her previous relationships, which resulted in her six other children, were marked by violence. Regarding her rights to her six older children, respondent stated that she had voluntarily relinquished custody of two of her children to the children's father after a Child Protective Services complaint had been lodged and that her other children were either in foster care or had been adopted. Respondent testified that she had originally placed three of her children in a guardianship with her grandmother, but the guardianship was revoked and the children were transferred to foster care.
Respondent testified that, in the past ten years, she had lived in 12 different apartments, many of which she left because she failed to pay her rent. According to respondent, she had not held a job for more than a year. Despite this history, respondent believed that she had turned her life around in recent weeks. Respondent reported that she had stable housing, was gainfully employed, and was addressing her substance-abuse issues. Respondent's recovery coach testified that she had been working with respondent to help her maintain her sobriety.
Two of respondent's children testified that respondent had placed them in guardianships with their great-grandmother. The children stated that their great-grandmother would fail to supply them with necessary hygiene products and would inappropriately discipline them. For instance, respondent's daughter testified that she was punished for month-long periods in which she would be required to sit at the dining-room table or stand against a door without talking to anyone and without moving, except to use the bathroom. According to the children, respondent was aware of these issues, but refused to revoke the guardianship. The children testified that respondent visited only infrequently and did not provide for their care in any way.
The trial court concluded that respondent's 12-year history of substance abuse, repeated violent relationships, and failure to parent any of her children established statutory grounds to terminate her parental rights under MCL 712A.19b(3)(g) and (j). The trial court commended respondent's recent efforts to improve her situation, but opined that it could not ignore respondent's history of instability. Based on this history, the trial court found that it was unlikely that respondent would be able to provide a safe, appropriate home for EJB within any reasonable time. Thus, the trial court concluded that termination was in EJB's best interests and terminated respondent's parental rights to the child. This appeal followed.
II. ANALYSIS
A. ADJUDICATION
Respondent first argues that the trial court erred by authorizing the petition because petitioner did not establish probable cause that the allegations in the petition were true. Before the trial court may authorize the filing of a petition, the trial court must conclude that probable cause has been shown that "one or more of the allegations in the petition are true and fall within MCL 712A.2(b)." MCR. 3.965(B)(12). MCL 712A.2(b) authorizes the trial court to take jurisdiction over a child who is without proper custody or guardianship, MCL 712A.2(b)(1), or whose home is an unfit place for the child to live, MCL 712A.2(b)(2). Here, the evidence presented at the preliminary hearing demonstrated: (1) that respondent abused substances while she was pregnant with EJB, causing the child to test positive for methadone and oxycodone at birth, (2) that respondent had failed to adequately address her substance abuse during the previous 12 years, and (3) that respondent had failed to provide proper care and custody for her other children. Accordingly, probable cause existed that EJB was without proper care and custody and that his home with respondent was unfit for a child. Therefore, MCL 712A.2(b)(1) and (2) authorized the trial court to take jurisdiction over EJB. Thus, the trial court did not err by authorizing the petition.
B. EVIDENTIARY ERROR
Next, respondent argues that the trial court erred by allowing her children to testify at the termination trial. We review this unpreserved claim of evidentiary error for plain error affecting respondent's substantial rights. In re TK, 306 Mich App 698, 703; 859 NW2d 208 (2014). Preliminarily, respondent argues that she was unfairly prejudiced by her children's testimony because she did not have notice of their testimony. Nonetheless, given that the children were listed on the pretrial witness lists, we may easily dismiss this argument.
Next, respondent argues that it was improper for her children to testify to the conditions of the guardianship because respondent was powerless to object to those conditions. Contrary to respondent's argument, however, a parent does have the authority to seek revocation of a guardianship, see id. at 705, and, even if respondent could not move for revocation of the guardianship herself, she could have requested that petitioner do so on the children's behalf. Respondent's failure to seek revocation of the guardianship, failure to intervene to provide the children with hygiene essentials, and failure to consistently visit the children indicate that respondent had little interest in providing for her children. Therefore, the children's testimony was relevant both to respondent's ability to provide for EJB and the likelihood that EJB would be harmed in respondent's care. Respondent argues that she was given no opportunity to challenge her children's testimony. This is simply not true. Respondent was given an opportunity to cross-examine the witnesses and, in fact, did cross-examine one of her children.
Accordingly, because the children's testimony was relevant to respondent's future ability to care for EJB, and because respondent has shown no unfair surprise, we conclude that the trial court did not err by allowing respondent's children to testify.
C. STATUTORY GROUNDS
Respondent next argues that the trial court erred by determining that statutory grounds existed to terminate her parental rights to EJB. "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 for clear error a trial court's ruling that a statutory ground for termination has been established. In re Hudson, 294 Mich App 261, 264; 817 NW2d 115 (2011).
In this case, the trial court found that grounds for termination had been established under MCL 712A.19b(3)(g) and (j), which permit termination of parental rights if there is clear and convincing evidence of either of the following:
(g) The parent, without regard to intent, 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.
* * *
(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.
MCL 712A.19b(3)(g) has been amended, effective June 12, 2018, to require the trial court to inquire into the parent's financial ability to provide proper care or custody. See 2018 PA 58. Because the trial court's order was entered before the effective date of amendment, the new version of MCL 712A.19b(3)(g) is inapplicable to this case. --------
Respondent testified that she had a 12-year history of substance abuse, had not maintained long-term employment or housing, and had developed relationships with men who had abused her. Respondent testified that she had a criminal history and that, as a result of her drug use, she did not have custody of any of her children. Respondent abused substances during two pregnancies and, despite receiving substance-abuse services, relapsed on several occasions. Therefore, the record shows that respondent was unable to provide EJB with a safe, appropriate custodial home. Despite respondent's efforts to improve her situation in the weeks leading up to the termination hearing, we agree with the trial court that respondent's failure to address her parenting issues—despite losing custody of six of her children in the previous 12 years—indicates that respondent was unlikely to be able to provide an appropriate home for EJB within any reasonable time. MCL 712A.19b(3)(g) and (j) supported termination of respondent's parental rights.
Related to her statutory-grounds argument, respondent argues that termination was premature because petitioner failed to provide respondent with reunification services. "[W]hen a child is removed from the parents' custody, the petitioner is required to make reasonable efforts to rectify the conditions that caused the child's removal by adopting a service plan." In re Fried, 266 Mich App 535, 542; 702 NW2d 192 (2005). An absence of reasonable reunification efforts may render termination premature. In re Mason, 486 Mich 142, 152; 782 NW2d 747 (2010). "However, the petitioner is not required to provide reunification services when termination of parental rights is the agency's goal." In re Moss, 301 Mich App 76, 91; 836 NW2d 182 (2013) (internal citation and quotation marks omitted). Thus, because petitioner's goal from the outset of this case was termination, respondent was not entitled to reunification services.
D. BEST INTERESTS
Finally, respondent argues that the trial court erred by concluding that termination was in EJB's best interests. "If the court finds that there are grounds for termination of parental rights and that termination of parental rights is in the child's best interests, the court shall order termination of parental rights and order that additional efforts for reunification of the child with the parent not be made." MCL 712A.19b(5). "[W]hether termination of parental rights is in the best interests of the child must be proven by a preponderance of the evidence." In re Moss, 301 Mich App at 90. "The trial court should weigh all the evidence available to determine the children's best interests." In re White, 303 Mich App 701, 713; 846 NW2d 61 (2014). "To determine whether termination of parental rights is in a child's 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.' " Id., quoting In re Olive/Metts, 297 Mich App 35, 41-42; 823 NW2d 144 (2012). Other relevant factors include any relevant "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." Id. at 714.
EJB was removed from respondent's care shortly after birth because respondent exposed EJB to harmful substances in utero. For the past 12 years, respondent has consistently failed to address her substance abuse. Respondent has been provided with several services, but she has not been able to provide proper care and custody for any of her seven children. Respondent has repeatedly engaged in relationships marked by violence and has failed to maintain consistent housing or employment. Despite respondent's recent progress, respondent's history of prioritizing her drug use over her parenting responsibilities indicates that respondent was unlikely to be able to provide a safe, appropriate home for EJB for any reasonable length of time. The trial court's finding that termination was in EJB's best interests was not erroneous.
Affirmed.
/s/ Patrick M. Meter
/s/ David H. Sawyer
/s/ Thomas C. Cameron