Opinion
No. 347511
09-19-2019
In re CAMPIS, Minors.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED St. Clair Circuit Court Family Division
LC No. 17-000291-NA Before: BORRELLO, P.J., and K. F. KELLY and SERVITTO, JJ. PER CURIAM.
Respondent-mother appeals as of right the trial court order terminating her parental rights to her two minor children. Because clear and convincing evidence supported the trial court's termination decision, and because a preponderance of the evidence existed establishing that termination was in the children's best interests, we affirm.
The minor children were removed from respondent's custody on July 26, 2017, due to allegations that respondent was currently incarcerated, had substance abuse issues, and that there had been domestic violence in the home. Respondent admitted to the amended petition and consented to the court's temporary jurisdiction, with the goal initially being reunification. In October 2018, the goal was changed to termination due to respondent's failure to comply with her parent-agency agreement (primarily the requirement in the agreement that respondent maintain sobriety). At the conclusion of a December 2018 termination hearing, the trial court terminated respondent's parental rights pursuant to MCL712A.19b(3)(c)(i) and (3)(j). This appeal followed.
From the time the court took jurisdiction over the children and until April 2018, respondent was on probation for criminal drug charges.
We review for clear error both the trial court's decision that a ground for termination of parental rights has been proven by clear and convincing evidence and, where appropriate, the court's decision regarding the child's best interests. In re JK, 468 Mich 202, 209; 661 NW2d 216 (2003); MCR 5.974(I). A decision is clearly erroneous if, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been made. In re JK, 468 Mich at 209-210.
In order to terminate parental rights, a court must find that clear and convincing evidence exists to support termination under one of the statutory grounds provided in MCL 712A.19b(3). In re Schadler, 315 Mich App 406, 410; 890 NW2d 676 (2016). Relevant to the instant matter, a trial court may terminate a parent's parental rights if it finds, by clear and convincing evidence, that:
(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 [] finds . . . the following:In this case, clear and convincing evidence appears on the record to support termination under MCL 712A.19b(3)(c)(i).
(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.
* * *
(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)]
Because only one ground for termination must be proven, we need not consider whether clear and convincing evidence existed to support termination based on MCL 712A.19b(3)(j).
The minor children initially came into care in July of 2017 when respondent appeared at the Macomb County courthouse after missing a probation violation hearing, appeared to be under the influence at that time, and was arrested and incarcerated. The petition seeking jurisdiction over the children further detailed that respondent had a significant substance abuse history, to-wit: her home was raided for drugs in 2016; she was arrested on April 20, 2017 for selling heroin, and possibly overdosed on June 28, 2017; respondent's adult son overdosed at her home on July 3, 2017, and respondent admitted that she had used heroin that day as well; on July 25, 2017, respondent admitted to having used heroin a few days prior and a drug test administered that day showed positive results for heroin, morphine, and cocaine. Respondent admitted that the children were present when all incidents at her home occurred.
The trial court required respondent to comply with certain court orders set forth in a parent-agency agreement, in order to be reunified with the children. Specifically, respondent was to attend visitation with the children, obtain a legal source of income, obtain safe and stable housing, engage in an in-home parenting program, complete psychological and substance abuse assessments, attend AA/NA meetings, and submit to random drug and alcohol testing. While respondent complied with some aspects of the requirements, in other areas she was highly unsuccessful.
Jeremy Cristini, the foster care worker assigned to the children, testified at the termination hearing that respondent regularly attended visitation with the kids and had a bond with them. Cristini further testified, however, that respondent worked approximately five months out of the 14 months while the proceedings progressed, and had at least four jobs during that period. Respondent admittedly lost one position due to entering inpatient drug treatment, but most recently reported working at an establishment that serves alcohol, which concerned Cristini, given respondent's substance abuse history.
As to housing, Cristini testified that respondent went back and forth between wanting to stay at the home of her friend, Al (where she had been living since the children were removed from her care), and obtaining her own home. Cristini did not know if Al had any substance abuse issues, but knew that he drank. According to Cristini, it could be difficult for respondent to be sober and free of drugs if living with someone who drinks. Also, on one occasion when Al was supposed to drive respondent's children, he drank instead.
According to Cristini, respondent was cooperative with the in-home parenting program and successfully completed it. She was attending parenting classes as well, and had almost completed them, but was dismissed because she missed a class while she was at inpatient treatment. She also completed the psychological and substance abuse assessments. Her psychological assessment indicated a long history of major mood disorder and poly addiction. Her substance abuse assessment indicated severe opiate-use disorder, moderate alcohol-use disorder, and stimulant-use disorder.
As a result of her assessments, respondent was required to continue her intensive inpatient services and attend six months of outpatient counseling. Cristini testified that respondent completed some counseling but was removed from counseling due to no-call/no-shows. Cristini testified that respondent currently self-reported involvement with Bio-Med Christian Counseling Services and that he obtained verification that she began services there, but that he has not gotten any reports from Bio-Med Christian Counseling about respondent's progress. Respondent also self-reported attending AA/NA, but provided no verification of the same.
Cristini testified that transportation was an issue for respondent and that he assisted her with it, but that respondent also drove, despite that she did not have a valid driver's license during the proceedings. --------
The most concerning aspect of respondent's compliance/non-compliance with the parent-agency agreement was her drug test results. According to Cristini, the report for respondent's random drug and alcohol screens shows that from September 19, 2017, through November 14, 2018, respondent failed to appear for 39 out of 42 tests, which were counted as positive screens. Respondent also tested positive for drugs once in December of 2017 and once in January of 2018. She thereafter underwent inpatient treatment from February 1-16, 2018. Unfortunately, respondent thereafter tested positive for opiates on July 17 and 31, 2018, and admitted to Cristini that she had started using drugs again. Respondent attended a five-day detoxification program in August of 2018, and afterward indicated she was attending therapy at Bio-Med Christian Counseling for her addictions. Respondent testified that she attends Bio-Med Christian Counseling every day to receive methadone, speak to a psychologist or therapist, or attend group therapy. According to respondent, the program is supposed to continue for a year, but can continue longer if necessary. Despite respondent's reported daily attendance, however, she tested positive for alcohol four times during the period of September of 2018 through November of 2018. In addition, respondent was scheduled for 10 drug screens between October 22, 2018, and December 4, 2018, but failed to appear for three of them, and three of the screens she did attend were positive for alcohol, though respondent denied using any alcohol.
Respondent contends that drug use alone, without any connection to abuse or neglect, cannot justify termination solely through the operation of the doctrine of anticipatory neglect, citing In re LaFrance Minors, 306 Mich App 713; 858 NW2d 143 (2014). In that case, the mother of four children tested positive for THC and opiates at the birth of the youngest child, and the child also tested positive for THC. Id. at 715. As a result, the mother agreed to move out of the family home and see the infant under supervision only, leaving the father to care for the infant. A few weeks later, the infant entered a hospital and was found to have a virus that caused kidney damage. Id. at 716. DHS thereafter sought emergency removal of all of the children, citing the infant's emergency hospitalization and the mother's prenatal drug use. Id. at 717. There was no allegation of any neglect or abuse of any of the children and only the one incident of possible medical neglect with respect to the father with the infant. The trial court took jurisdiction over all four children on the sole statutory ground that there had been a failure to provide medical, surgical, or other necessary care for health on father's part. There was no separate adjudication with respect to mother. The mother had, however, moved back into the family home and continued to test positive for drugs. Id. at 720. The trial court ultimately terminated the mother's parental rights to all four children based on MCL 712A.19b(3)(b)(ii), (c)(i), (g), and (j). Id. at 721. On appeal, and with respect to the mother, this Court found that "[s]ignificantly, the drug use does not stand alone." Id. at 729. Instead, we noted that there was evidence of the mother's behavior after the birth that caused concern with the medical staff, and the facts that mother failed to attend virtually all of the infant's medical appointments, failed to attend programs about the child's condition, and refused to sign paperwork to allow the child to receive physical therapy. Id. We also noted that with respect to the older three children, there were no allegations and no evidence of anything that would support termination and that termination could not be found on the doctrine of anticipatory neglect. Id. at 730-732.
Here, respondent's drug use also does not stand alone. Respondent has only self-reported income at a job she has only held for a few months. She exposed the children to her heroin use, an overdose by her adult son, was in jail for selling heroin for a period of time, and had not established that she could care for the children on her own in any way. Prior to the children being removed from the home, respondent had resided with a partner. After removal, she was unable to keep a job for more than a few months, and had no home of her own, but instead relied upon the generosity of a former boyfriend for housing. Thus, In re LaFrance Minors, supra, provides no support for her position.
On the record, termination was appropriate under MCL 712A.19b(3)(c)(i) because the primary condition leading to removal of the children was respondent's inability to remain drug-free and respondent continued with her drug use throughout the 14 months of the court proceedings. Respondent continued to test positive for substances, including heroin, morphine, and alcohol in September of 2018, despite completing an inpatient drug program in February of 2018, a detox program in August of 2018, attending AA/NA, attending counseling, receiving intensive in-home services, and parenting classes. Respondent admitted to a 12-year substance abuse problem, and while she has made many attempts to stay free of drugs, she has been unable to do so for more than a few months at a time. Considering respondent's long history of substance abuse and use during the court's jurisdiction over the children, there is no reasonable likelihood that the conditions that led to the court's jurisdiction will be rectified within a reasonable time considering the children's ages.
A preponderance of the evidence also exists to show that termination was in the children's best interests. Once a statutory basis for termination has been shown by clear and convincing evidence, the court must determine whether termination is in the child's best interests. MCL 712A.19b(5). Best interests are determined on the basis of the preponderance of the evidence, In re Moss, 301 Mich App 76, 83; 836 NW2d 182 (2013), and a best interests decision is reviewed for clear error. In re JK, 468 Mich at 209.
"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). In considering the child's best interests, the trial court's focus must be on the child and not the parent. In re Moss, 301 Mich App at 87. "In deciding whether termination is in the child's best interests, the 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 Minors, 297 Mich App 35, 41-42; 823 NW2d 144 (2012) (citations omitted). "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 714. When the trial court makes its best interests determination, it may rely upon evidence on the entire record, including the evidence establishing the statutory grounds for termination. In re Trejo, 462 Mich 341, 353-354; 612 NW2d 407 (2000), superseded by statute on other grounds as recognized in In re Moss, 301 Mich App at 83.
There is no question that respondent had a bond with the children and loved them. Her parenting ability, however, is a significant issue, considering that she continues to struggle with heroin addiction, despite the myriad of services provided to her, inpatient treatment, and a detox program. Respondent has not only continued to use drugs throughout the proceedings, the children witnessed her use prior to removal and further witnessed their older brother overdose, their mother possibly overdose, and were left without parents for several months due to respondent's sale of heroin and incarceration for failure to abide by the terms of her probation for that offense. Clearly, heroin has had and continues to have more of a hold on respondent than does her children's well-being. Moreover, despite her substance abuse issues, respondent has elected to live with a man who drinks (on at least one occasion to where he was unable to drive an older child not subject to this appeal), and chose employment at a location where alcohol is served. She thus continually places herself in situations and company where maintaining her sobriety will be a struggle. Given that respondent is unable to stay away from heroin, has employment in a location that risks her sobriety daily, reports only cash income, and has not obtained housing independent of the generosity of a friend (who drinks), the court did not clearly err by finding that termination of her parental rights was in the children's best interests.
Affirmed.
/s/ Stephen L. Borrello
/s/ Kirsten Frank Kelly
/s/ Deborah A. Servitto