Opinion
No. 343946
02-19-2019
In re BUTLER, Minors.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Monroe Circuit Court Family Division
LC Nos. 17-024169-NA; 17-024395-NA Before: CAVANAGH, P.J., and BORRELLO and REDFORD, JJ. PER CURIAM.
Respondent-mother appeals as of right the order terminating her parental rights to her three children under MCL 712A.19b(3)(b)(ii) (child or sibling suffered physical or sexual abuse and parent failed to prevent the abuse), (g) (failure to provide proper care and custody), and (j) (reasonable likelihood the child will be harmed if returned to parent's care). The trial court also based termination of respondent's rights to the two eldest of her three children, on MCL 712A.19b(3)(c)(i) (conditions leading to adjudication continue to exist). We affirm.
I. BACKGROUND
During 2007, respondent became acquainted with her husband, Lonnie Butler, through his family while he served a prison term for criminal sexual conduct with a child. At first, respondent and Butler began writing each other letters. Within a few weeks after Butler's release from prison, respondent and Butler became romantically involved. During the next several years they stayed together despite numerous breakups. In 2008 and 2010, respondent gave birth to two children fathered by Butler. In 2010, Butler was again charged with and convicted of criminal sexual conduct with a child and was imprisoned from 2010-2017.
Upon Butler's release from prison on February 3, 2017, respondent allowed Butler to move into her home and permitted him to supervise her children despite her knowledge of his criminal past. Child Protective Services warned respondent not to allow him into the home because he posed a danger to the children. Respondent disregarded the warning and allowed Butler to live in the same house with her children and knowingly exposed her children to a convicted sex offender. Before the end of April 2017, Butler molested their daughter and physically abused their son.
On April 24, 2017, the Department of Health and Human Services (DHHS) petitioned for termination of respondent's and Butler's parental rights to the oldest two children. The trial court terminated respondent's parental rights. Respondent now appeals.
II. STATUTORY GROUNDS
Respondent argues that clear and convincing evidence did not support termination of her parental rights under MCL 712A.19b(3)(b)(ii), (c)(i), (g), and (j). Respondent asserts that no evidence established that she failed to protect the children from her husband's abuse. She also maintains that her participation in counseling and other services proved that she could provide proper care for her children or that she will be able to provide proper care for them within a reasonable time. We disagree.
"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." In re Moss, 301 Mich App 76, 80; 836 NW2d 182 (2013) (citation omitted). We review for clear error the trial court's ruling that a statutory ground for termination existed. In re Hudson, 294 Mich App 261, 264; 817 NW2d 115 (2011). "A finding is clearly erroneous if, although there is evidence to support it, this Court is left with a definite and firm conviction that a mistake has been made." Id. (citation omitted). Under the clearly erroneous standard, "[w]e give deference to the trial court's special opportunity to judge the credibility of the witnesses." In re HRC, 286 Mich App 444, 459; 781 NW2d 105 (2009).
In this case, the trial judge presided over hearings on at least 11 different dates between May 3, 2017 and April 20, 2018; in addition to the termination trial of Lonnie Butler. The record includes 1,760 pages of transcripts, including 331 pages of transcript testimony related to respondent alone. At the completion of the trial, the trial court on May 5, 2018, issued a comprehensive 29-page single-spaced opinion and order with detailed and well-supported findings of fact and conclusions of law.
In this case, the trial court terminated respondent's parental rights under MCL 712A.19b(3)(b)(ii), (c)(i), (g), and (j). At the time respondent's parental rights were terminated, these provisions stated:
MCL 712A.19b(3)(g) has since been amended, effective June 12, 2018. See 2018 PA 58. --------
(b) The child or a sibling of the child has suffered physical injury or physical or sexual abuse under 1 or more of the following circumstances:
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(ii) The parent who had the opportunity to prevent the physical injury or physical or sexual abuse failed to do so and the court finds that there is a reasonable likelihood that the child will suffer injury or abuse in the foreseeable future if placed in the parent's home.
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(c) The parent was a respondent in a proceeding brought under this chapter, 182 or more days have elapsed since the issuance of an initial dispositional order, and the court, by clear and convincing evidence, finds either of the following:
(i) The conditions that led to the adjudication continue to exist and there is no reasonable likelihood that the conditions will be rectified within a reasonable time considering the child's age.
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(g) The parent, 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.
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(j) There is a reasonable likelihood, based on the conduct or capacity of the child's parent, that the child will be harmed if he or she is returned to the home of the parent. [MCL 712A.19b(3), as amended by 2017 PA 193.]
The trial court did not clearly err by terminating respondent's parental rights under these subsections. MCL 712A.19b(3)(b)(ii) is intended to address a parent, such as respondent, "who, while not the abuser, failed to protect the child from the other parent or nonparent adult who is an abuser." In re LaFrance, 306 Mich App 713, 725; 858 NW2d 143 (2014). In this case, respondent clearly had the opportunity to prevent the abuse, and she failed to do so. See MCL 712A.19b(3)(b)(ii).
The evidence also supports the trial court's conclusion that a reasonable likelihood existed that the children would suffer abuse in the foreseeable future if returned to respondent's home. The evidence of record supporting this conclusion includes but is not limited to respondent's failure to protect her children while in her care and custody, her history of poor decision-making, and her lack of insight into the danger to which she exposed her children. Accordingly, the trial court did not clearly err by finding a reasonable likelihood that the children would suffer abuse in the foreseeable future if returned to respondent's home. See In re Archer, 277 Mich App 71, 75; 744 NW2d 1 (2007). Therefore, termination was proper under MCL 712A.19b(3)(b)(ii). Because only one ground must be established to terminate parental rights, it is not necessary to consider the trial court's decisions under MCL 712A.19b(3)(c)(i), (g), and (j). See In re Powers, 244 Mich App 111, 119; 624 NW2d 472 (2000).
III. REASONABLE EFFORTS
Respondent also asserts that the DHHS failed in its obligation to provide services aimed at reunification and, in particular, failed to accommodate respondent's reading disability as required under the American with Disabilities Act (ADA), 42 USC 12101 et seq. We disagree.
While respondent now claims that the DHHS failed to accommodate a reading disability, she failed to make a request for a reasonable accommodation and she did not raise an ADA argument in the trial court. Accordingly, respondent failed to preserve this claim of error. In re Frey, 297 Mich App 242, 247; 824 NW2d 569 (2012). Our review of this unpreserved issue is limited to plain error affecting substantial rights. In re Utrera, 281 Mich App 1, 8; 761 NW2d 253 (2008).
"Under Michigan's Probate Code, 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.
Absent reasonable modifications to the services or programs offered to a disabled parent, the Department has failed in its duty under the ADA to reasonably accommodate a disability. In turn, the Department has failed in its duty under the Probate Code to offer services designed to facilitate the child's return to his or her home, see MCL 712A.18f(3)(d), and has, therefore, failed in its duty to make reasonable efforts at reunification under MCL 712A.19a(2). As a result, we conclude that efforts at reunification cannot be reasonable under the Probate Code if the Department has failed to modify its standard procedures in ways that are reasonably necessary to accommodate a disability under the ADA. [Id.]
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.
In this case, the record reflects that, when crafting the case service plan, as part of the normal procedures, the caseworker asked respondent if she had any disability and, in particular, any difficulty reading or writing. Respondent did not disclose any disability at that time. In December 2017, when working with her therapist, respondent indicated that she had an individualized education plan in school. As a result, respondent had the opportunity to retake a parenting test with the questions read aloud to her. She performed better when the questions were read to her. Now respondent asserts that she had a reading disability that the DHHS failed to accommodate. Because respondent did not advise the DHHS of any difficulty with reading until December 2017, her assignment as error a failure to accommodate before that time lacks merit. See id.
Further, while respondent asserts that her reading difficulty was not accommodated, respondent does not explain what accommodation she needed that was not provided. For instance, respondent notes that she had difficulty with the parenting test, but the facts show that the parenting test was read aloud to her and that, with this accommodation, she showed some improvement on the parenting test. Aside from the parenting test, respondent has not identified anything that she could not complete or understand because of her difficulty reading. At a review hearing in January 2018, in response to questions from the trial court, respondent's attorney indicated that she was not requesting any particular accommodation at that time. Unlike in Hicks, the record does not establish that there were specific services the DHHS failed to provide respondent or that the trial court failed to address as necessary to the DHHS's obligation to provide reasonable services. See In re Hicks, 500 Mich at 89-90. In other words, respondent has not identified any services or accommodations that would have allowed her to fare better, see In re Fried, 266 Mich App 535, 543; 702 NW2d 192 (2005); and, therefore, she has not shown plain error arising from the DHHS's efforts toward reunification.
Aside from arguments under the ADA, respondent also more generally challenges the reasonableness of the services provided as not being truly aimed at reunification. Specifically, respondent alleges that the DHHS never had any intention of reuniting her with the children and that, by denying her visitation with her eldest two children, the DHHS prevented her from achieving reunification. However, the record reflects that although the DHHS initially filed a petition to terminate respondent's parental rights at the initial dispositional hearing, the DHHS withdrew the initial petition seeking termination and provided respondent several months of services before filing a supplemental petition seeking termination of her parental rights. Regarding parenting time, respondent received visitation with her youngest child. Although she did not receive parenting time with her older children, parenting time may be suspended in child protective proceedings as set forth in the court rules and statutes. See generally In re Laster, 303 Mich App 485, 487-491; 845 NW2d 540 (2013). Here, respondent never received parenting time with the older children because the determination was made that the children suffered trauma and the mental health professionals involved with the case recommended a highly structured reintroduction of respondent into the children's lives. Given this evidence, the decision not to provide respondent with parenting time with the two older children does not demonstrate a failure to make reasonable efforts toward reunification. See id.; see also In re TK, 306 Mich App 698, 711; 859 NW2d 208 (2014).
IV. BEST INTERESTS
Finally, respondent argues that the trial court clearly erred by finding that termination of her parental rights served the children's best interests. We disagree.
"Once a statutory ground for termination has been proven, the trial court must find that termination is in the child's best interests before it can terminate parental rights." In re Olive/Metts, 297 Mich App 35, 40; 823 NW2d 144 (2012) (citations omitted). "[W]hether termination of parental rights is in the best interests of the child must be proved by a preponderance of the evidence." In re Moss, 301 Mich App at 90. "We review for clear error the trial court's determination regarding the children's best interests." In re White, 303 Mich App at 713 (citations omitted).
When determining a child's best interests, the trial court should consider all the evidence and consider a wide variety of factors. Id. Relevant factors 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. (quotation marks and citation omitted). If there are multiple siblings involved in the case, the trial court must consider the needs of each child individually. Id. at 715 (citation omitted). That is, "if the best interests of the individual children significantly differ, the trial court should address those differences when making its determination of the children's best interests." Id. The trial court does not err by failing "to explicitly make individual and—in many cases—redundant factual findings concerning each child's best interests." Id. at 716.
In this case, the trial court did not clearly err by concluding that termination of respondent's parental rights served the best interests of the children. Consistent with the evidence, the trial court recognized that respondent loved her children and felt bonded with them, but the trial court found that other considerations outweighed this bond. See In re Jones, 316 Mich App 110, 120-121; 894 NW2d 54 (2016). Specifically, the trial court emphasized respondent's poor parenting ability as evidenced by her decision to expose the children to a known child sex offender and her history of neglecting the children's needs. The trial court also reasonably recognized that the children were in need of permanency, stability, and finality, and that the children needed to have their needs met by a caregiver who consistently safeguarded their well-being by making decisions in the best interests of the children. In this regard, as supported by the evidence at trial, the trial court compared the shortcomings of respondent's abilities and respondent's home to the children's foster-care home where the children were well-nourished, adequately supervised, supported in their education, provided with medical care and counseling, and "above all, safe and loved." Reasoning that the children deserved the permanence and the safety that adoption can provide, the trial court found that termination of respondent's parental rights served the children's best interests. We find no error in the trial court's determination.
Respondent asserts that the trial court's findings were inadequate because the trial court failed to consider the children individually. However, the trial court's decision clearly states those points that applied to all the children, finding, for example, that "all" the children needed permanency, stability, and finality, that the children were well-cared for in their foster-care home, and that "[a]ll three minors deserve the permanence and safety that adoption can provide." While the trial court did not list the children by name, the trial court was not required to make redundant findings when the same conclusions applied to all three children. See In re White, 303 Mich App at 715-716. Further, to the extent that the children's circumstances significantly differed, the trial court did provide distinct discussions of the older children, considering, for example, their individual feelings toward respondent and the abuse they suffered. See id. There is no merit to respondent's claim that the trial court failed to consider the individual needs of the children. Therefore, the trial court did not err by finding that termination served the children's best interests.
Affirmed.
/s/ Mark J. Cavanagh
/s/ Stephen L. Borrello
/s/ James Robert Redford