Opinion
No. 350853 No. 350856
05-21-2020
In re CB, MR, AR, and ZR, Minors.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Kalkaska Circuit Court Family Division
LC No. 17-004506-NA Before: TUKEL, P.J., and MARKEY and GADOLA, JJ. PER CURIAM.
Respondent-mother and respondent-father appeal by right the order terminating their parental rights to CB, MR, AR, and ZR pursuant to MCL 712A.19b(3)(c)(i) (conditions that led to adjudication continue to exist), (c)(ii) (other conditions exist that were not rectified after a reasonable opportunity to do so), (g) (failure to provide proper care or custody), and (j) (reasonable likelihood children will be harmed if returned to parents' home). We affirm.
Respondent-father is the father of AR, MR, and ZR. The trial court also terminated the parental rights of CB's father, but he is not a party to this appeal. --------
I. FACTS AND PROCEDURAL HISTORY
The children came under the jurisdiction of the trial court because they were engaging in inappropriate sexual behavior with each other, which respondents had not resolved. The trial court initially set the goal as reunification, and the court integrated petitioner's parent-agency agreement into the overall case service plan. Respondents were to take parenting classes, learn how to deal with their children's behavior, and follow a safety plan for the children. After a year, petitioner filed a petition to terminate respondents' parental rights. Respondents had failed to attend their children's appointments, tested positive for drug use, and had not shown significant improvement in their parenting skills or follow-through with the safety plan. The trial court ultimately terminated respondents' parental rights.
II. STANDARD OF REVIEW
If a trial court finds that a single statutory ground for termination has been established by clear and convincing evidence and that it has been proved by a preponderance of the evidence that termination of parental rights is in the best interests of a child, the court is mandated to terminate a respondent's parental rights to that child. MCL 712A.19b(3) and (5); MCR 3.977(H)(3); In re Beck, 488 Mich 6, 10-11; 793 NW2d 562 (2010); In re Moss, 301 Mich App 76, 90; 836 NW2d 182 (2013); In re Ellis, 294 Mich App 30, 32; 817 NW2d 111 (2011). "This Court reviews for clear error the trial court's ruling that a statutory ground for termination has been established and its ruling that termination is in the children's best interests." In re Hudson, 294 Mich App 261, 264; 817 NW2d 115 (2011); see also MCR 3.977(K). "A finding . . . is clearly erroneous if the reviewing court has a definite and firm conviction that a mistake has been committed[.]" In re BZ, 264 Mich App 286, 296; 690 NW2d 505 (2004). When applying the clear error standard in parental termination cases "regard is to be given to the special opportunity of the trial court to judge the credibility of the witnesses who appeared before it." In re Miller, 433 Mich 331, 337; 445 NW2d 161 (1989); see also MCR 2.613(C).
III. ANALYSIS
The statutory grounds for termination are listed in MCL 712A.19(b)(3). Respondents' parental rights were terminated under MCL 712A.19b(3)(c)(i), (c)(ii), (g), and (j), which provide:
(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.
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(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.
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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.
Respondents argue that they were substantially compliant with their parent-agency agreement and service plan; however, a review of the record demonstrates the contrary. Respondent-mother was to expand her parenting skills, obtain support for sexual abuse and regulating the sexual behavior of her children, and to follow a safety plan to regulate the children's sexual behavior. Respondent-father's plan was similar but had the added requirement of addressing issues pertaining to communication and anger. Respondent-mother completed her parenting classes, as did respondent-father. But respondents attended only 33 of 158 total appointments for their children. Also, respondent-mother did not secure employment. Moreover, both respondent-mother and father tested positive for methamphetamine, amphetamine, and marijuana. The caseworker testified that respondent-mother's progress with the parent-agency agreement was partial, poor, or none in every category except for housing. Likewise, respondent-father's progress with the parent-agency agreement was partial, poor, or none in every category except for housing. The record reveals that there were numerous counseling and therapy programs in which respondents' participation was dismal, including some from which they were discharged because of absences. Therefore, respondents were not in fact substantially compliant with their service plan and parent-agency agreement.
Further, there was sufficient evidence to satisfy the statutory grounds for termination. The trial court terminated respondents' parental rights, in part, under MCL 712A.19b(3)(c)(i) and (c)(ii). Adjudication occurred on the basis of the parents' providing improper supervision. The improper supervision occurred because the children were engaging in sexual behavior and respondents did not take steps to stop it. Respondents were still skeptical that their children actually engaged in sexual behavior and did not comply with the safety plan. A therapist who evaluated respondents concluded that they only had a marginal ability to control or redirect their children's behavior. The therapist opined that respondents would neglect the children and not follow through with safety and precautionary measures in the future, resulting in the children's returning to the state they were in when the children were first removed from the home. Again, the caseworker testified that both respondents' progress with the parent-agency agreement was partial, poor, or none in every category except for housing. Therefore, the trial court did not clearly err by determining that the conditions that led to adjudication continued to exist and that the conditions had not been rectified despite a reasonable opportunity to rectify them. MCL 712A.19b(3)(c)(i). And respondents' drug use supplied a basis to terminate under MCL 712A.19b(3)(c)(ii).
Respondents' parental rights were also properly terminated under MCL 712A.19b(3)(g). "A parent's failure to participate in and benefit from a service plan is evidence that the parent will not be able to provide a child proper care and custody." In re White, 303 Mich App 701, 711; 846 NW2d 61 (2014). A parent-agency agreement becomes part of the service plan when the trial court orders the parents to comply with it. In re Trejo Minors, 462 Mich 341, 346 n 3; 612 NW2d 407 (2000). The trial court ordered respondents to comply with the parent-agency agreement. Neither respondent-mother nor respondent-father adequately participated in or benefited from services. And they showed little to no progress under the parent-agency agreement. Therefore, the trial court did not clearly err by terminating respondents' parental rights under MCL 712A.19b(3)(g).
Respondents' parental rights were also properly terminated under MCL 712A.19b(3)(j). "[A] parent's failure to comply with the terms and conditions of his or her service plan is evidence that the child will be harmed if returned to the parent's home." In re White, 303 Mich App at 711. As noted, respondents neither complied with nor benefited from the parent-agency agreement. There was testimony indicating that the children's sexual behavior would resurface if returned home given respondents' lack of progress with services and lack of parenting capacity. Respondents' drug use was also concerning. Therefore, the trial court did not clearly err by finding that the children would likely be harmed if they were returned to respondents' care.
The trial court also did not clearly err by determining that termination of respondents' parental rights was in the children's best interests. With respect to a child's best interests, we place our focus on the child rather than the parent. In re Moss, 301 Mich App at 87. In assessing a child's best interests, a trial court may consider such factors as a "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.
Here, the therapist testified that CB had a secure attachment with respondents; AR and MR had mixed attachments, and ZR's attachment was unknown. Respondents, however, did not adequately comply with or benefit from their service plan and the parent-agency agreement. Also, the children had shown improvement in their foster placements. The caseworker thought that the permanency of the placement had helped. The danger of a continuation of the sexual behavior by the children and respondents' drug use also favored a finding that termination of parental rights was in the children's best interests. The trial court did not clearly err by determining that termination of parental rights was in the children's best interests because the permanency, stability, and safety of the children outweighed the bond between them and respondents.
Finally, to the extent that respondents argue that petitioner failed to provide reasonable efforts to reunify the family, we find the argument unavailing. Absent aggravating circumstances, "[b]efore a court may enter an order terminating parental rights, Michigan's Probate Code, MCL 710.21 et seq., requires a finding that the Department . . . has made reasonable efforts at family reunification." In re Hicks/Brown, 500 Mich 79, 83; 893 NW2d 637 (2017). "As part of these reasonable efforts, the Department 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." Id. at 85-86. Not only must a respondent cooperate and participate in the services, the respondent must benefit from them. In re TK, 306 Mich App 698, 711; 859 NW2d 208 (2014). A respondent must establish that he or she would have fared better if other services had been offered. See In re Fried, 266 Mich App 535, 543; 702 NW2d 192 (2005). In the instant case, petitioner offered respondents a plethora of reunification services, and it was respondents' failures to participate in and benefit from the services that resulted in termination, not any shortcomings by petitioner.
IV. CONCLUSION
The trial court did not clearly err by finding clear and convincing evidence in support of the statutory grounds for termination of parental rights, by finding that a preponderance of the evidence showed that termination was in the children's best interests, or by finding that petitioner made reasonable efforts to reunify the family.
We affirm.
/s/ Jonathan Tukel
/s/ Jane E. Markey
/s/ Michael F. Gadola