Opinion
No. 350737
05-14-2020
In re BUTLER/DANIELS/LEE, Minors.
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 UNPUBLISHED Wayne Circuit Court Family Division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. 17-001735-NA Before: GADOLA, P.J., and STEPHENS and SHAPIRO, JJ. PER CURIAM.
Respondent appeals as of right the order of the trial court terminating her parental rights to her minor children, BB, DB, JJD, JHML, and JLL under MCL 712A.19b(3)(c)(i), (failure to rectify the conditions that led to the adjudication), (c)(ii) (failure to rectify other conditions), (g) (failure to provide proper care and custody), and (j) (reasonable likelihood of harm if returned to parent). We affirm.
I. FACTS
Respondent is the mother of nine children born between 2000 and 2019: DD, RB, AD, MB, BB, DB, JHML, JJD, and JLL. On September 27, 2017, the Department of Health and Human Services (DHHS) filed a petition seeking jurisdiction over respondent's eight children at the time. The petition resulted from a referral to Child Protective Services (CPS) which, upon investigation, led to the determination that respondent and her children were homeless. Respondent also tested positive for cocaine on August 30, 2017, and admitted using marijuana.
The petition alleged improper supervision and respondent's inability to provide her children with suitable housing. DHHS further alleged that respondent's abuse of drugs, such as cocaine and marijuana, her criminal history, and her family's prior history with CPS dating back to 2003, inhibited her ability to provide proper care and custody to her children. DHHS had also offered services to respondent in February 2015 and August 2017, but she did not successfully complete those services. The trial court authorized the petition on September 29, 2017, and took jurisdiction over respondent's children.
At the time of the petition, AD lived with his father. Pursuant to the trial court's September 29, 2017 order, AD was not removed, and remained in his father's care under the supervision of DHHS. On April 12, 2018, the trial court awarded the father sole physical and legal custody of AD and terminated its jurisdiction.
On December 7, 2017, the trial court entered a disposition order, requiring respondent to complete a substance abuse assessment, participate in individual and family therapy with the children, undergo a psychological evaluation, attend parenting classes, participate in weekly random drug screens, and obtain suitable housing. In 2018 the trial court conducted a series of review hearings regarding respondent's progress. The record shows that respondent completed some individual therapy and substance-abuse treatment sessions, but lacked suitable housing, and failed to provide consistent drug screens. In addition, respondent did not appear for the September 2018 review hearing. Further, respondent missed the majority of the visitation appointments with her children. At the November 2018 review hearing, foster-care specialist Tish Higginbotham testified that respondent's inability to address her substance abuse and obtain suitable housing remained barriers to reunification with her children. In sum, respondent failed to complete the services ordered by the trial court.
During this same hearing, the trial court ended the wardship of DD because he had turned 18.
On January 24, 2019, DHHS filed a supplemental petition seeking termination of respondent's rights to BB, DB, JHML, and JJD. During the hearing on the petition, the trial court also addressed respondent's youngest child, JLL, and took jurisdiction over this child based on respondent's continued drug use, homelessness, and lack of progress in reunification with her other children. Further, the record shows that JLL tested positive for cocaine and marijuana at birth, which occurred on May 19, 2019.
The supplemental petition seeking termination also named RB and MB, who are not involved in this appeal. In the September 11, 2019 order, the trial court declined to terminate respondent's parental rights to RB and MB. The trial court reasoned that RB and MB each possessed a bond with respondent and did not want her parental rights terminated. The trial court further reasoned that RB was "of an age where due consideration must be given to her wishes."
During the adjudication proceedings, the trial court heard additional testimony from Higginbotham, who discussed how MB and BB repeatedly went AWOL from placement with their father. It was alleged that respondent sheltered MB and BB when they went AWOL from their father, which she denied in testimony before the trial court. Regardless, MB and BB each committed actions in violation of the law while AWOL, and often went to respondent's place of employment, where she provided food and money to them. Higginbotham testified that such actions, in part, impeded the progress of respondent's children.
Relatedly, respondent testified to working between 50 and 60 hours per week as a manager for Popeye's in various locations. However, DHHS indicated that respondent often failed to provide work schedules and pay stubs. In addition, since the date of the trial court's exercise of jurisdiction, respondent had not provided any support for her children. Respondent also testified to residing in different locations and, at the time of one hearing, renting a house for $750 per month. This house was deemed unsuitable by Eric Hunter, a Protective Services Specialist. Additionally, respondent never provided a lease as proof of housing.
Upon conclusion of the hearing, the trial court entered an order terminating respondent's parental rights to BB, DB, JHML, JJD, and JLL, under MCL 712A.19b(3)(c)(i), (c)(ii), (g), (j), and MCL 712A.19b(3)(b)(i) as to JLL only. Respondent appeals from that order.
II. STATUTORY GROUNDS
Respondent argues that the trial court erroneously found that there was clear and convincing evidence sufficient to establish statutory grounds for termination. We disagree.
"This Court reviews for clear error the trial court's factual findings and ultimate determinations on the statutory grounds for termination." MCR 3.977(K); In re White, 303 Mich App 701, 709; 846 NW2d 61 (2014). A finding is clearly erroneous if the reviewing court is "left with the definite and firm conviction that a mistake has been made." In re Gonzales/Martinez, 310 Mich App 426, 430-431; 871 NW2d 868 (2015) (quotation marks and citation omitted). "Only one statutory ground need be established by clear and convincing evidence to terminate" parental rights. In re Ellis, 294 Mich App 30, 32; 817 NW2d 111 (2011).
In this case, the trial court terminated respondent's parental rights pursuant to MCL 712A.19b(3)(c)(i), (c)(ii), (g), and (j), which provide:
We decline to address MCL 712A.19b(3)(b)(i) because respondent did not challenge this subsection on appeal. See also In re Ellis, 294 Mich App at 32. --------
(3) 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 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.
(ii) Other conditions exist that cause the child to come within the court's jurisdiction, the parent has received recommendations to rectify those conditions, the conditions have not been rectified by the parent after the parent has received notice and a hearing and has been given a reasonable opportunity to rectify the
conditions, and there is no reasonable likelihood that the conditions will be rectified within a reasonable time considering the child's age.
* * *
(g) The parent, although, in the court's discretion, financially able to do so, 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.
The trial court found that termination of respondent's parental rights was warranted under MCL 712A.19b(3)(c)(i). The record supports this finding. Since the initial dispositional order dated December 7, 2017, respondent continued abusing drugs, resided in different locations, and failed to utilize services offered to her throughout 2018. Moreover, respondent did not answer DHHS requests for documents, such as pay stubs, work schedules, and a lease agreement. Further, JLL tested positive for cocaine and marijuana at birth. In addition, although respondent obtained a home in April 2019, it was not deemed suitable for the children because of the lack of appliances and beds.
Respondent's children needed permanency, and her slow-moving progress did not demonstrate that she could provide it for the children in a reasonable amount of time. Respondent had many opportunities, including counseling and other services to help with her substance abuse, to meet these requirements for her children, but she failed to do so by the time the trial court found, on July 22, 2019, that the conditions of MCL 712A.19b(3)(c)(i) had been shown. The court concluded that 182 days or more had elapsed since the issuance of the initial dispositional order, MCL 712A.19b(3)(c), and that, on the basis of the evidence and testimony presented, there was no reasonable likelihood that the conditions that brought BB, DB, JJD, JHML, and JLL into care would be rectified in a reasonable time. The trial court did not clearly err in terminating respondent's parental rights under MCL 712A.19b(3)(c)(i).
Also, the trial court found that there were statutory grounds to terminate respondent's parental rights under MCL 712A.19b(3)(c)(ii). In its order terminating parental rights, the trial court noted several other conditions that existed that contributed to the termination of respondent's parental rights. Specifically, although disputed, the trial court noted respondent's assistance to MB and BB, who often went missing from their father's care. The trial court further noted that respondent was "elusive and uncooperative." Respondent missed drug screens, visitation appointments with her children, and did not provide adequate proof of housing or continued employment at Popeye's. As a result, the trial court did not err in finding that other conditions existed pursuant to MCL 712A.19b(3)(c)(ii), which respondent failed to rectify after receiving recommendations, and that there is no reasonable likelihood that the conditions would be rectified in a reasonable time.
Further, there was also clear and convincing evidence to support the trial court's determination that there was a statutory basis to terminate respondent's parental rights under MCL 712A.19b(3)(g). On the basis of the evidence and testimony, respondent failed to provide proper care and custody for her children. Respondent maintained employment at Popeye's, but often failed to comply with requests for pay stubs and work schedules. Although employed for most of the time during the pendency of this case, respondent was still unable to take the necessary steps to provide stability for her children, including suitable housing with appliances and beds. Also, respondent provided no support to her children from the time the trial court exercised jurisdiction.
Similarly, respondent failed to complete many of the services and recommendations as part of her parent-agency treatment plan, including submitting to drug screens, attending parenting time visitations, maintaining adequate housing, or completing substance abuse therapy. Respondent's failure to participate in the plan is "evidence that the parent will not be able to provide a child proper care and custody." In re White, 303 Mich App at 710. Therefore, the trial court did not clearly err when it terminated respondent's parental rights under MCL 712A.19b(3)(g).
Additionally, the trial court terminated respondent's parental rights pursuant to MCL 712A.19b(3)(j). As support, the trial court considered testimony that respondent often provided food, money, and shelter to MB and BB during times when her visitation was ordered to be supervised. Respondent failed to attend several parenting time visits or provide the children with a home in which they would be safe. Further, the trial court did not err in finding that respondent's substance abuse caused a reasonable likelihood of harm to the children if returned to her care. For instance, JLL testified positive for cocaine and marijuana at birth. Based on such evidence, DHHS demonstrated that the children would likely be harmed, whether physically, emotionally, or mentally, in respondent's care. Thus, the trial court did not clearly err by finding that there was clear and convincing evidence to terminate respondent's parental rights under MCL 712A.19b(3)(j).
III. BEST INTERESTS
Respondent argues that DHHS did not prove that termination was in the best interests of the children. We disagree.
"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). A trial court's decision regarding a child's best interests is reviewed by this Court for clear error. In re Medina, 317 Mich App 219, 226; 894 NW2d 653 (2016). "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 HRC, 286 Mich App 444, 459; 781 NW2d 105 (2009).
Before terminating an individual's parental rights, the trial court must find by a preponderance of the evidence that termination is in the best interests of the child. In re Jones, 316 Mich App 110, 119; 894 NW2d 54 (2016). In reviewing a determination of the best interests of the child, this Court "focus[es] on the child rather than the parent." In re Schadler, 315 Mich App 406, 411; 890 NW2d 676 (2016). "The trial court should weigh all the evidence available to determine the children's best interests." In re White, 303 Mich App at 713. "[T]he court may consider 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." In re Olive/Metts, 297 Mich App 35, 41-42; 823 NW2d 144 (2012) (citations omitted). Also, the court may consider the probability of a child being returned to their parent within the foreseeable future. In re Kaczkowski, 325 Mich App 69, 78; 924 NW2d 1 (2018). In addition, the trial court may 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 714.
The trial court found that it was in the best interests of the children to be removed from respondent's care. Specifically, the trial court noted that respondent failed to obtain suitable housing for the children, and was uncooperative in scheduling an assessment of her home. Further, the trial court considered that respondent failed to complete her parent-agency treatment plan, failed to benefit from the services she did complete, and continued to use drugs. The trial court found that respondent "could not appropriately plan or provide for the children," who were "vulnerable and adversely affected" by respondent's "continuing neglect and unfit parenting." Further, the trial court found that the children required "safety, structure, and permanence," and that respondent presented "a continuing threat to the health, safety, and general welfare of the children."
While it is true that, throughout the case, respondent made some progress in obtaining a home and completing some services, she did not demonstrate that she was willing or able to provide permanency and stability for her children. Respondent failed to provide them with a stable, adequate home, and did not attend many of the parenting time visits. Importantly, respondent failed to submit to random drug screens or otherwise address her substance abuse issue throughout the duration of this case. Based on these facts, the trial court did not err when it determined that termination of respondent's parental rights was in the best interests of her children.
Affirmed.
/s/ Michael F. Gadola
/s/ Cynthia Diane Stephens
/s/ Douglas B. Shapiro