Opinion
No. 336860
10-10-2017
In re COBB, Minors.
UNPUBLISHED Macomb Circuit Court Family Division
LC No. 2015-000215-NA Before: SAAD, P.J., and CAVANAGH and CAMERON, JJ. PER CURIAM.
Respondent-mother appeals as of right the trial court's order terminating her parental rights to her two children, GCC and CLC, pursuant to MCL 712A.19b(3)(c)(i) , (g), and (j). We affirm.
I. STATUTORY GROUNDS
Respondent first argues that the trial court erred in finding that the statutory grounds for termination were established by clear and convincing evidence. We disagree.
The petitioner bears the burden of proving a statutory ground for termination by clear and convincing evidence. MCL 712A.19b(3); In re Fried, 266 Mich App 535, 540-541; 702 NW2d 192 (2005). This Court reviews for clear error a trial court's decision that a statutory ground for termination has been proven by clear and convincing evidence. MCR 3.977(K); In re Fried, 266 Mich App at 541. A decision qualifies as clearly erroneous when, "although there is evidence to support it, this Court is left with a definite and firm conviction that a mistake has been made." In re Hudson, 294 Mich App 261, 264; 817 NW2d 115 (2011) (citation omitted). We "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) (citation omitted).
A. MCL 712A.19b(3)(c)(i)
A trial court may order termination of parental rights under MCL 712A.19b(3)(c)(i) if the record clearly and convincingly establishes:
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.
Respondent argues that she was in substantial compliance with her parent-agency agreement, and there was "every likelihood" that the conditions that led to the adjudication would be rectified. This argument is unavailing. More than 182 days had elapsed since the issuance of the initial disposition order, and there was clear and convincing evidence that the conditions that led to the adjudication continued to exist. In October 2015, the trial court exercised jurisdiction over the children on the basis of respondent's no-contest plea, and approximately 15 months had elapsed from the initial dispositional order to the termination hearing. The conditions leading to the adjudication comprised of a lack of stable housing, including the fact that the children resided in more than 10 homes since 2012 and stayed with different friends and relatives on a daily basis. In fact, respondent's parental rights were terminated as to her child, JH, in 2007 due to similar problems. Respondent also had been diagnosed with attention deficit hyperactivity disorder, bipolar disorder, and depression, for which she had undergone multiple inpatient psychiatric hospitalizations, failed to regularly take medication prescribed to treat her bipolar disorder, and avoided mental health treatment since May 2015 because she believed she did not need it. She had chronically poor hygiene, spoke rapidly in a manner that moved from topic to topic, and had claimed a specialist "instructed her to wave a belt as a visual cue before she physically disciplines [GCC]" and admitted that "[GCC] fell out of the bed and was crying for an hour with a bloody nose before she woke up to his cries." Finally, respondent did not dispute that a motel received several complaints that her children were walking around unsupervised and without proper clothing in 2015, that her relatives had repeatedly mistreated and left bruises on the children in 2015, and that the children were dirty and lacked shoes when she took them to petitioner's office. In October 2015, the trial court ordered respondent to complete a psychological evaluation and follow its recommendations, attend individual counseling, participate in parenting classes, complete a psychiatric evaluation, regularly attend parenting times, maintain contact with the agency, and obtain a legal income source and safe housing. Nonetheless, even after reasonable efforts were made to reunite the children with respondent, the evidence clearly showed that the conditions leading to the adjudication continued to exist.
The evidence at the termination hearing showed that respondent failed to obtain stable housing. While the caseworker testified that respondent maintained regular contact and remained sober, she continued to lack stable housing and was staying in a motel at the time of the termination hearing. Although respondent believed that she could have permanent housing and care for the children within three to six months, her income consisted of approximately $700 in monthly Social Security disability benefits—an amount the caseworker deemed insufficient to meet the needs of the children.
Respondent also failed to take prescription medication to treat her mental disorders or to meaningfully pursue mental health treatment. Respondent's caseworker testified that respondent completed a psychological evaluation, which confirmed that respondent had bipolar disorder with anxiety features, and recommended that she take medication and pursue mental health treatment. Both the caseworker and respondent testified that respondent refused to take a prescribed medication. The testimony of the caseworker and respondent also established that respondent had not attended mental health treatment, failed to complete individual counseling, and last saw a therapist in October 2016.
Respondent also failed to substantially benefit from parenting classes, a parenting coach, or attendance at supervised parenting times. The caseworker acknowledged that respondent completed parenting classes and received parenting-time assistance from a parenting coach. However, during the first several months of parenting times, the children repeatedly left the parenting time room and respondent neglected to bring them back. During later parenting times, respondent made some improvement, but she still focused on one child and ignored the other child who often misbehaved. Additionally, respondent still failed to redirect the children when they hit or yelled at each other. Two weeks before the termination hearing, the caseworker observed while GCC sat on the edge of a toy, respondent pulled the toy from beneath GCC, GCC fell, and respondent laughed. The caseworker continued to have concerns about respondent's parental judgment and empathy for the children, and concluded that respondent had not demonstrated that she could properly and safely parent the children or maintain positive relationships.
The foregoing evidence established that the conditions leading to the adjudication still existed at the time of the termination hearing, i.e., respondent's lack of stable housing, an insufficient income level to meet the children's needs, an inability to provide the children safe living conditions, her untreated mental disorders, and an inability to consistently supervise and redirect the children. See In re LE, 278 Mich App 1, 28; 747 NW2d 883 (2008). Further, there was no reasonable likelihood that respondent would improve her parenting skills within a reasonable time. See In re Dahms, 187 Mich App 644, 648; 468 NW2d 315 (1991) (a decision regarding a reasonable time for improvement "appropriately focuse[s] not only on how long it would take respondent to improve her parenting skills, but also on how long her . . . children could wait for this improvement"). Respondent's parenting deficiencies first manifested in 2007, when JH was found filthy and in dangerous living conditions, which respondent failed to rectify. Respondent acknowledged that she had relinquished her parental rights to JH. Similar circumstances that led to respondent's relinquishment of her parental rights to JH also led to the adjudication of GCC and CLC as court wards, and respondent made no progress in rectifying those condition during the approximately 15 months the young children were temporary court wards, and they urgently needed permanency and stability. In re LE, 278 Mich App at 28; In re Dahms, 187 Mich App at 648. Accordingly, we perceive no clear error in the trial court's conclusion that clear and convincing evidence established the propriety of termination under MCL 712A.19b(3)(c)(i). Only one statutory ground is required to terminate parental rights, and because we find a statutory basis under MCL 712A.19b(3)(c)(i), our analysis could end here. In re Ellis, 294 Mich App 30, 32; 817 NW2d 111 (2011). However, there was also clear and convincing evidence to establish a statutory basis under MCL 712A.19b(3)(g) and (j).
B. MCL 712A.19b(3)(g)
Pursuant to MCL 712A.19b(3)(g), a trial court can terminate a respondent's parental rights "if the court finds, by clear and convincing evidence," that "[t]he 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." Abundant evidence established respondent's inability to provide the children with a proper living environment, her refusal to obtain the necessary treatment of her mental illnesses, and the unlikelihood that she might within a reasonable time sufficiently improve her parenting skills. In re JK, 468 Mich 202, 213-214; 661 NW2d 216 (2003). Thus, clear and convincing evidence proved that respondent failed to provide proper care for the children or that there was a reasonable expectation that she would be able to rectify her parental shortcomings within a reasonable time considering the children's ages. In re LE, 278 Mich App at 28; In re Dahms, 187 Mich App at 648. The children, still very young, spent approximately 15 months as temporary court wards while respondent made little progress in addressing her parenting deficiencies, and therefore the children urgently needed permanency and stability. The trial court did not clearly err when it terminated respondent's parental rights under MCL 712A.19b(3)(g).
C. MCL 712A.19b(3)(j)
A trial court can also terminate parental rights if the record clearly and convincingly establishes that "[t]here 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)(j). Before the instant case, JH was found in dangerous and dirty living conditions in 2007, and respondent failed to rectify them. Similar conditions led to the adjudication of the two children involved in this proceeding, and respondent failed to improve her situation during the approximately 15 months the children were in the trial court's care. Moreover, respondent ignored a prescription for her bipolar disorder and a referral for mental health services, proving she continually refused to obtain necessary treatment. She completed parenting classes and received assistance from a parenting coach, but she failed to substantially benefit from these services and continued to allow the children to yell and hit each other and showed a lack of empathy and ability to properly parent. We detect no clear error in the trial court's conclusion that clear and convincing evidence that the children remained at risk of emotional and physical harm in respondent's care. In re Hudson, 294 Mich App 261, 268; 817 NW2d 115 (2011) (explaining that the risk of harm to children includes both potential emotional and physical harm).
II. PSYCHOLOGICAL EVALUATION REPORT
Respondent next argues that the trial court erred in admitting Dr. Patrick K. Ryan's psychological evaluation of respondent because it was not admissible under MRE 702. We disagree.
First and foremost, we conclude that this issue is waived. At the adjudication trial, petitioner moved to admit Ryan's psychological evaluation, the trial court inquired whether any party objected, and respondent's counsel affirmatively stated that she had no objection to the admissibility of the evaluation. Respondent's affirmative expression of satisfaction concerning the admissibility of the psychological evaluation extinguished any potential appellate error. People v Kowalski, 489 Mich 488, 503; 803 NW2d 200 (2011) (defining "waiver" as "the intentional relinquishment or abandonment of a known right"), quoting People v Carter, 462 Mich 206, 215; 612 NW2d 144 (2000) (quotation marks omitted). "One who waives his rights under a rule may not then seek appellate review of a claimed deprivation of those rights, for his waiver has extinguished any error." Id. (citation omitted). Respondent thus waived appellate review of this issue.
Even if we were to consider this unpreserved issue, we would conclude that respondent is not entitled to relief. This Court reviews unpreserved issues only to determine whether a plain error affected an appellant's substantial rights. In re Williams, 286 Mich App 253, 274; 779 NW2d 286 (2009). Respondent contests the admissibility of Ryan's psychological evaluation under MRE 702, which provides:
If the court determines that scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise if (1) the testimony is based on sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case."A court considering whether to admit expert testimony under MRE 702 acts as a gatekeeper and has a fundamental duty to ensure that the proffered expert testimony is both relevant and reliable." People v Kowalski, 492 Mich 106, 120; 821 NW2d 14 (2012).
Respondent claims that the report did not establish the rationale underlying his opinions or qualifications. This argument fails. At the October 9, 2015 adjudication, petitioner identified the psychological evaluation that respondent underwent with Ryan, and the trial court admitted it at the hearing. The evaluation report is typical of many reports admitted in child protection proceedings. It contains sections regarding respondent's presenting problems, medical history, basic information, medical information, social history, mental status, and Ryan's summary of respondent's affect, thought processes, memory, intelligence, hallucination level, delusions, orientation, judgment, insight, diagnosis, and treatment recommendations. Ryan's evaluation was strongly probative of respondent's capacity to care for the children, a central question at issue in the trial court's analysis of the statutory grounds and best interests. MRE 401; MCR 3.977(H)(2) ("At the hearing all relevant and material evidence, including oral and written reports, may be received by the court and may be relied upon to the extent of its probative value."). See Kowalski, 492 Mich at 135-136 (concluding that evidence from a psychological evaluation may be admissible under MRE 702 so long as the trial court properly exercises its gatekeeper role). The trial court properly incorporated by reference at the termination hearing the previously admitted psychological evaluation. Knowlton v Port Huron, 355 Mich 448, 452; 94 NW2d 824 (1959) ("[A] circuit judge may take judicial notice of the files and records of the court in which he sits."). There was no plain error in admitting Ryan's psychological evaluation of respondent under MRE 702.
III. BEST INTERESTS
Lastly, respondent argues that the trial court erred in finding that termination of her parental rights served the children's best interests. We disagree.
"Even if the trial court finds that the [petitioner] has established a ground for termination by clear and convincing evidence, it cannot terminate the parent's parental rights unless it also finds by a preponderance of the evidence that termination is in the best interests of the children. MCL 712A.19b(5)." In re Gonzales/Martinez, 310 Mich App 426, 434; 871 NW2d 868 (2015). We review for clear error a trial court's decision regarding a child's best interests. MCR 3.977(K); In re Hudson, 294 Mich App at 264.
In In re White, 303 Mich App 701, 713-714; 846 NW2d 61 (2014), this Court summarized:
The trial court should weigh all the evidence available to determine the children's best interests. To determine whether termination of parental rights is in a child's best interests, the court should consider a wide variety of factors that may 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. 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. [Citation and quotation marks omitted.]
The evidence supports the trial court's finding that termination of respondent's parental rights served the children's best interests. Respondent testified that she and the children shared a loving bond. However, the testimony of the caseworker and the children's foster father agreed that the children did not ask about respondent and often behaved aggressively after parenting times. Respondent also failed to take advantage of services offered to improve her bipolar disorder and minimally improved her ability to supervise the children, despite her completion of parenting classes and receipt of assistance from a parenting coach. Due to their young age, the children have a strong need for permanency and stability. In re VanDalen, 293 Mich App 120, 141-142; 809 NW2d 412 (2011). The caseworker and the foster father agreed that the children lived in a foster home that met all of their needs. The children substantially progressed in their foster home in minimizing their acting out behaviors and improving their developmental delays. The foster parents planned to adopt the children. The trial court did not clearly err in finding that termination of respondent's parental rights was in the children's best interests.
Affirmed.
/s/ Henry William Saad
/s/ Mark J. Cavanagh
/s/ Thomas C. Cameron