Opinion
No. 344054
02-12-2019
In re CHIZMARIK, 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 UNPUBLISHED Wayne Circuit Court Family Division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. 16-523127-NA Before: JANSEN, P.J., and BECKERING and O'BRIEN, JJ. PER CURIAM.
Respondent appeals as of right the trial court's order terminating her parental rights to the three minor children: BAC, GAC, and SMC. Respondent's parental rights were terminated pursuant to MCL 712A.19b(3)(c)(i) (a dispositional order was entered 182 or more days ago, the conditions that led to adjudication continue to exist, and there is no reasonable likelihood that the conditions will be rectified within a reasonable time), MCL 712A.19b(3)(g) (failure to provide proper care and custody, and no reasonable expectation that the parent will be able to provide proper care and custody within a reasonable time), and MCL 712A.19b(3)(j) (reasonable likelihood, based on the conduct or capacity of the parent, that the child will be harmed if returned to the parent). We affirm.
MCL 712A.19b(3)(g) has since been amended, effective June 12, 2018. See 2018 PA 58. Under the former version of the statute, failure to provide proper care and custody "without regard to intent" is a statutory ground to terminate parental rights. MCL 712A.19b(3)(g). Under the new version of the statute, failure to provide proper care and custody is a ground for termination only where, within the court's discretion, a parent was "financially able to do so." MCL 712A.19b(3)(g) as amended by 2018 PA 58. The former version was still effective when respondent's parental rights were terminated. --------
Respondent argues on appeal that the trial court erred in finding that termination of her parental rights was in the best interests of the minor children. We disagree. After statutory grounds for termination have been established under MCL 712A.19b(3), a court may terminate parental rights if it "finds by a preponderance of the evidence that termination is in the best interests of the children." In re Gonzales/Martinez, 310 Mich App 426, 434; 871 NW2d 868 (2015). We review for clear error a trial court's determination regarding the children's best interests. In re Medina, 317 Mich App 219, 226; 894 NW2d 653 (2016). See also MCR 3.977(K). "Appellate courts are obliged to defer to a trial court's factual findings at termination proceedings if those findings do not constitute clear error." In re Rood, 483 Mich 73, 90; 763 NW2d 587 (2009). "A finding is clearly erroneous if the reviewing court is left with a definite and firm conviction that a mistake has been made." In re LaFrance Minors, 306 Mich App 713, 723; 858 NW2d 143 (2014). In applying the clear error standard, "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).
The best-interest analysis focuses on the child rather than the parent. In re Schadler, 315 Mich App 406, 411; 890 NW2d 676 (2016). In making a best-interest determination, the trial court is to consider "the whole record," which includes evidence introduced by any party. In re Medina, 317 Mich App at 237. The trial court should weigh all of the available evidence and consider a wide variety of factors such as "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). "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 child[]'s well-being while in care, and the possibility of adoption." In re White, 303 Mich App 701, 714; 846 NW2d 61 (2014) (citations omitted).
The minor children were removed from respondent's care after a child protective services (CPS) worker found respondent asleep and under the influence of drugs in a motel room, while the three children were left unattended. GAC was unsupervised in a bathtub in which the water was running; the motel room was covered in trash, dirty clothing, and blood; the room smelled of mildew and feces; the children were dirty and smelled of cigarettes, feces, and dirty diapers; there was little to no food in the motel room; and respondent tested positive for cocaine, benzolecgonine, and ecgonine methyl ester. Following the adjudication trial, the trial court entered an order finding that statutory grounds existed to warrant the court taking temporary jurisdiction of the minor children for respondent's failure to provide support and necessary care, and for the unfit home environment. An initial dispositional hearing was held where a treatment plan was placed on the record. The treatment plan required respondent to cooperate with the Michigan Department of Health and Human Services (MDHHS) and (1) attend parenting classes, (2) establish proof of safe and suitable housing as well as a legal income, (3) regularly visit with the minor children, (4) maintain contact with the CPS workers, (5) obey all court orders, (6) attend all court hearings, (7) participate in regular drug screenings and attend substance abuse counseling, (8) undergo a psychological and psychiatric evaluation, (9) participate in infant mental health, and (10) sign any releases needed to verify compliance with the treatment plan.
Respondent contends that the trial court's best-interest determination was erroneous because respondent visited and maintained a strong bond with the children. This argument is without merit. At the second dispositional review hearing, foster care worker Patricia Fields reported that respondent often arrived late to visitations with the minor children and only stayed for three of the six-hour visits. Fields observed that respondent appeared disengaged with the minor children and failed to attend to all of their needs. Prior to the filing of the supplemental petition for termination, respondent missed 15 of 27 scheduled visitations with the children. At the visitations she did attend, she showed up more than once smelling of alcohol, behaving erratically, and acting hostile toward the caseworkers.
At the termination hearing after the supplemental petition was filed, two foster care workers—Liana Ratcliff and Angelique Miller—testified that they did not feel that respondent had a strong bond with the minor children. Ratcliff testified that the children often pushed respondent away during visitation and there were instances where GAC spit on and ran from respondent. Miller also testified to GAC spitting on respondent, and stated that BAC had thrown water in respondent's face. The aunt of the minor children testified that prior to CPS involvement, the minor children would spend weekends with her and their maternal grandmother. Both the aunt and the grandmother testified that the children arrived dressed in filthy clothes and that their belongings smelled like animal urine from the dog and cat respondent kept. Further, BAC never wanted to return to respondent. BAC would even cry and get angry with the aunt and the grandmother for allowing respondent to take him. As a result, the aunt followed respondent to the motel where she observed GAC almost get hit by a car while running around in the parking lot unsupervised. Both the aunt and the grandmother testified that respondent had a history of problems with drugs and alcohol. At the time of the termination hearing in March 2018, respondent admitted that she eventually stopped visiting her children altogether and had not seen them since November 2017 because she found supervision by caseworkers to be "uncomfortable," and felt that the caseworkers were rude to her. Therefore, the lower court record does not support the contention that respondent maintained any type of healthy relationship or bond with the minor children.
Respondent also complains that she was never granted any unsupervised visitation with the minor children. However, respondent had been awarded unsupervised visitation by the MDHHS in February 2017, after she had submitted 20 clean drug screens, but the MDHHS retracted the award before any visitation occurred because of respondent's consistent tardiness to the visits. Also, Fields expressed suspicion about respondent's drug screens because they were returning negative even for respondent's prescription medication.
Respondent next argues that she should have been provided with more services and that the MDHHS workers on the case failed to assist her in completing her services. However, the lower court record does not support respondent's contention. While this court has held that the MDHHS must provide reasonable efforts towards reunification, this Court has also held that "there exists a commensurate responsibility on the part of respondents to participate in the services that are offered." In re Frey, 297 Mich App 242, 247; 824 NW2d 569 (2012). Respondent was offered numerous services. Both the psychological and psychiatric evaluations recommended that respondent take part in individual and family counseling, including extensive substance abuse treatment, and receive continuing psychiatric services. The psychological evaluator noted that it was concerning that respondent continued to vehemently deny her substance abuse issue. Respondent refused individual counseling. Respondent was referred to substance abuse counseling, but failed to comply with the counseling, so treatment was canceled by the therapist due to lack of participation. Respondent also only attended a couple infant mental health sessions before deciding that she would not accept those services either. The therapist reported that when she tried to work with respondent, respondent was uncooperative, spoke over her, and stated that she would not participate in the service. Respondent claimed that she "was a great mom" and did not need the service. The therapist submitted a letter to the MDHHS discontinuing the service due to lack of participation. Ratcliff testified that in November 2017, respondent indicated that she did not need any more services, even though she had not completed the treatment plan. Additionally, Miller testified that she was unable to refer respondent for counseling through the Juvenile Assessment Center because they required an address, and respondent refused to give an address, despite the court order requiring her to do so. Respondent's refusal to provide an address also prevented the workers from being able to verify whether respondent had suitable housing. Ratcliff testified that respondent consistently told her that she was moving, but would not provide an address. Ratcliff offered to help respondent with housing, but respondent said that she did not need the assistance.
Further, after respondent showed up to visits with the minor children visibly intoxicated and smelling of alcohol, Ratcliff scheduled a family team meeting to discuss respondent's need to participate in substance abuse therapy. Ratcliff stated that respondent was angry because she had been charged with driving under the influence a month prior, so she yelled at Ratcliff to "stay out of her business" and refused to attend the meeting. Therefore, the testimony of the foster care workers is in sharp contrast to respondent's argument that she should have been provided more services and given additional assistance completing her treatment plan. It appears that the workers did everything that they could to assist respondent, but she refused to accept their assistance or participate in the services offered. Thus, respondent's lack of compliance with her treatment plan and failure to try to improve her parenting skills are factors supporting the trial court's conclusion that termination was in the best interests of the minor children.
Additionally, respondent contends that she was not afforded enough time to rehabilitate herself before termination was sought. This argument is also unsupported. Respondent claimed to have prescriptions for Xanax and Norco, but according to workers, she refused to sign a release to allow the MDHHS to verify the prescriptions and their purpose with her primary care provider. Respondent refused Ratcliff's request for her doctor's information saying, "[N]o I'm going to sue you, it's none of your business." Ratcliff testified that from November 2016 to November 2017, respondent was required to submit 47 drug screens. Respondent missed 28 of the 47 screens, and of the screens that respondent participated in, 12 were positive for opiates, benzodiazepines, and sometimes alcohol. Ratcliff further reported that respondent quit screening altogether after August 22, 2017. Miller testified that respondent claimed that "she had done over two hundred drug screens and she wasn't going to do anymore." Also, respondent told Ratcliff that she worked at a bar, but despite Ratcliff's requests, respondent never provided her with any documentation regarding a legal source of income. Therefore, Ratcliff was unable to verify respondent's employment. Respondent's argument that she was jobless and had transportation problems is unfounded considering that she did not inform the workers of these issues. Also, respondent completed parenting classes, but according to Ratcliff, respondent did not benefit from the class since respondent's interactions with the minor children did not improve and she demonstrated a lack of ability to oversee and supervise them. Because respondent was refusing to participate in services to help her resolve her substance abuse issues, improve her parenting skills, or comply with the treatment plan, additional time would not be in the best interests of the minor children, who are in need of permanency, stability, and finality.
Respondent also argues that there was no reason not to give her additional time to work on reunification since BAC was placed with maternal relatives and GAC and SMC were in the custody of their father. However, respondent consistently testified that there was no reason for the minor children to have been removed from her care. She refused to take responsibility for her own actions. It is not in the best interests of the minor children to give additional time to respondent when she would not acknowledge her need to change. Respondent cites In re Boursaw, 239 Mich App 161; 607 NW2d 408 (1998), in support of her contention that a two-year period was not unreasonable for a parent to work on reunification. However, in that case, the counselor believed that respondent-mother would ultimately be able to make the positive behavior changes to regain custody of the minor child, and had, in fact, demonstrated "significant strides" in meeting her treatment plan. Id. at 172-174. In this case, Ratcliff felt that termination of respondent's parental rights to all three children was appropriate because, since the filing of the initial petition, she failed to make substantial efforts to comply with, and thus was largely not in compliance with, her treatment plan and court orders. Consequently, the case relied on by respondent does not support her contention that she should have been afforded additional time.
Ultimately, as described above, respondent failed to (1) obtain and maintain suitable housing, (2) to complete substance abuse treatment, (3) to comply with drug screening requirements, (4) to provide releases for medical information, (4) to provide clean drug screens, (5) to visit the children consistently and appropriately, (6) to participate in individual counseling, and (7) to participate in individual counseling or infant mental health services designed to help her children. The evidence of respondent's failure to complete her treatment plan or benefit from services offered, and her continued denial of any wrongdoing or need for services, provided clear and convincing evidence in support of the trial court's finding that it was in the best interests of the minor children to terminate respondent's parental rights. Therefore, the trial court's determination that termination served the minor children's best interests was not clearly erroneous.
Respondent next contends that termination of her rights was premature because the MDHHS failed to make reasonable efforts for reunification. This argument is also without merit.
"In general, issues that are raised, addressed, and decided by the trial court are preserved on appeal." In re TK, 306 Mich App 698, 703; 859 NW2d 208 (2014). In this case, whether the MDHHS made reasonable efforts to reunify respondent with the minor children by offering adequate services and by assisting respondent in participating in those services was never raised before the trial court. Accordingly, the issue is unpreserved. See In re Frey, 297 Mich App 247 (holding that the issue of reasonable efforts was unpreserved because the respondent failed to raise it below).
In termination proceedings, unpreserved claims are reviewed for plain error. In re Utrera, 281 Mich App 1, 8-9; 761 NW2d 253 (2008). "To avoid forfeiture under the plain-error test, an error that was clear and obvious must be established, along with a showing that the error affected substantial rights." In re Van Dalen, 293 Mich App 120, 135; 809 NW2d 412 (2011). To affect substantial rights means to affect the outcome of the proceedings. In re Utrera, 281 Mich App at 9.
Prior to termination of a parent's parental rights, the MDHHS has a statutory obligation "to expend reasonable efforts to provide services to secure reunification." In re Frey, 297 Mich App at 248. See MCL 712A.19a(2). However, it is also true, as mentioned above, that the law imposes "a commensurate responsibility on the part of respondents to participate in the services that are offered." In re Frey, 297 Mich App at 248. In this case, respondent was offered infant mental health treatment, substance abuse counseling, and parenting classes. Respondent completed parenting classes, but essentially testified that they were not very helpful because she "was already a good mom." Respondent then failed to comply with every other service offered to her. Both the infant mental health therapist and substance abuse therapist cancelled respondent's treatment due to her failure to comply and participate. Respondent testified that it was not true that her substance abuse therapy was terminated, but rather, "after about five hundred drug screens, there was really nothing else to talk about." Respondent further testified that she had a legal source of income, but never showed documentation of the income because she did not "get a check," and because the caseworkers knew where she worked since she told them. Respondent also stated that she was positive that she did not have, and never had, a drug or alcohol problem. Also, respondent noted that she "passed" her psychological and psychiatric evaluations and that she was told she could get her kids back because everything was fine. When asked about her treatment plan, respondent claimed that she did everything and passed all her drug screens. She denied ever using illegal drugs or ever testing positive for them.
Respondent contends that the MDHHS should have made greater efforts to assist respondent with complying with treatment, and should have offered her services multiple times before considering termination. Respondent relies upon two cases—In re Mason, 486 Mich 142; 782 NW2d 747 (2010), and In re Rood, 483 Mich 73; 763 NW2d 587 (2009)—that are not applicable to this case. In In re Mason, the Michigan Supreme Court determined that termination was premature where the MDHHS cited a parent's failure to comply with a service plan without adequate consideration of the fact that the parent could not participate due to his incarceration. In re Mason, 486 Mich at 148-149, 159. In In re Rood, the Michigan Supreme Court found termination of a father's parental rights inappropriate where the father was not given proper notice of neglect proceedings, and yet his rights were terminated for lack of participation in the case. In re Rood, 483 Mich at 111-113, 122. In contrast, here respondent did not demonstrate an inability to participate in services, and she never alleged a violation of due process or a lack of notice regarding the services offered. Instead, the record clearly indicates that respondent's noncompliance was deliberate and intentional.
Respondent demonstrated consistent refusal to work with the MDHHS. Respondent did not participate in therapeutic or substance abuse services simply because she refused to believe that she needed them. Similarly, respondent stopped submitting to court-ordered drug screens when, in her opinion, she had submitted more than enough. Respondent testified that she stopped participating in infant mental health services because someone was "really rude to [her]." Additionally, despite court orders, respondent never provided the MDHHS with proof of income or employment, often did not inform the MDHHS where she was living, failed to maintain contact with caseworkers, and explicitly refused to sign medical releases because she "didn't want [caseworkers] calling [her] doctors."
The record demonstrates that the MDHHS provided respondent ample opportunity to benefit from services for the purpose of eventually reunifying respondent and the minor children, and that respondent refused to participate because she did not want to, and because, even after nearly two years of CPS involvement and court proceedings, respondent still believed that her children were removed from her care "[f]or no reason." Respondent's contention that the MDHHS—rather than respondent—should have made greater efforts to avoid termination has no merit.
We note that respondent briefly seems to claim that, regardless of whether the MDHHS made appropriate efforts, respondent is entitled to reversal because the trial court erred by failing to make a determination as to whether reasonable efforts were made. This argument is equally without merit because the trial court made that exact finding in the order terminating respondent's parental rights, and for the reasons stated above, the finding was not erroneous.
Affirmed.
/s/ Kathleen Jansen
/s/ Jane M. Beckering
/s/ Colleen A. O'Brien